Hazardous Waste Management System; Modification of the Hazardous Waste Program; Mercury Containing Equipment, 45508-45522 [05-15437]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 150 (Friday, August 5, 2005)]
[Rules and Regulations]
[Pages 45508-45522]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15437]



[[Page 45507]]

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Part V





Environmental Protection Agency





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40 CFR Parts 260, 261 et al.



Hazardous Waste Management System; Modification of the Hazardous Waste 
Program; Mercury Containing Equipment; Final Rule

Federal Register / Vol. 70, No. 150 / Friday, August 5, 2005 / Rules 
and Regulations

[[Page 45508]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 264, 265, 268, 270, and 273

[RCRA-2004-0012; FRL-7948-1]
RIN 2050-AE52


Hazardous Waste Management System; Modification of the Hazardous 
Waste Program; Mercury Containing Equipment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's final rule adds mercury-containing equipment to the 
federal list of universal wastes regulated under the Resource 
Conservation and Recovery Act (RCRA) hazardous waste regulations. 
Handlers of universal wastes are subject to less stringent standards 
for storing, transporting, and collecting these wastes. EPA has 
concluded that regulating spent mercury-containing equipment as a 
universal waste will lead to better management of this equipment and 
will facilitate compliance with hazardous waste requirements.

DATES: This final rule is effective on August 5, 2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. RCRA-2004-0012. All documents in the docket are listed in the 
EDOCKET index at https://www.epa.gov/edocket. Although listed in the 
index, some information is not publicly available, i.e., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available materials are available either electronically in EDOCKET, or 
in hard copy at the HQ EPA Docket Center, RCRA Docket, EPA/DC, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Kathy Blanton, Office of Solid Waste 
(5304W), U.S. Environmental Protection Agency, Ariel Rios Building, 
1200 Pennsylvania Avenue NW., Washington, DC 20460, telephone number: 
(703) 605-0761; fax number: (703) 308-0514; email: 
blanton.katherine@epa.gov.

SUPPLEMENTARY INFORMATION:

a. General Information

1. Does This Rule Apply to Me?

    This rule affects persons who generate, transport, treat, recycle, 
or dispose of mercury containing equipment (MCE), unless those persons 
are households or conditionally exempt small quantity generators 
(CESQGs). If you have any questions about the applicability of this 
rule, consult the person listed under FOR FURTHER INFORMATION CONTACT.

Preamble Outline

I. Statutory Authority
II. List of Abbreviations and Acronyms
III. Background
    a. What is Mercury-Containing Equipment?
    b. Previous Regulations for Mercury-Containing Equipment
    c. Universal Waste Rule
    d. Proposed Rule
IV. Rationale for Including Mercury-Containing Equipment in the 
Scope of the Universal Waste Rule
    a. Factors for Inclusion in the Universal Waste Rule
    b. Effect of Designation as a Universal Waste
    c. Expected Changes in Management of Mercury-Containing 
Equipment
V. Discussion of Final Rule
    a. Effective Date
    b. Waste Covered by Final Rule
    c. Management Requirements for Spent Mercury-Containing 
Equipment
    1. Summary of Requirements
    2. Requirements for Small and Large Quantity Handlers
    3. Requirements for Transporters
    4. Requirements for Destination Facilities
    5. Effect of Today's Rule on Household Wastes and Conditionally 
Exempt Small Quantity Generators
    6. Land Disposal Restriction Requirements
IV. Discussion of Comments Received in Response to Proposed 
Rulemaking and the Agency's Responses
    a. Regarding the Addition of Mercury-Containing Equipment to the 
Universal Waste Rule
    b. Regarding the Universal Waste Notification Requirement
VII. State Authority
    a. Applicability of Rule in Authorized States
    b. Effect on State Authorization
    c. Interstate Transport
VIII. Statutory and Executive Order Reviews

I. Statutory Authority

    These regulations are promulgated under the authority of sections 
2002(a), 3001, 3002, 3004, and 3006 of the Solid Waste Disposal Act of 
1970, as amended by the Resource Conservation and Recovery Act of 1976 
(RCRA), and as amended by the Hazardous and Solid Waste Amendments of 
1984 (HSWA), 42 U.S.C. 6921(a), 6921, 6922, 6924, and 6926.

II. List of Abbreviations and Acronyms

------------------------------------------------------------------------
             Acronym                             Definition
------------------------------------------------------------------------
CESQG............................  Conditionally Exempt Small Quantity
                                    Generator.
CFR..............................  Code of Federal Regulations.
DOT..............................  Department of Transportation.
HSWA.............................  Hazardous and Solid Waste Amendments
                                    of 1984.
ICR..............................  Information Collection Request.
LDR..............................  Land Disposal Restriction.
LQG..............................  Large Quantity Generator.
LQHUW............................  Large Quantity Handler of Universal
                                    Waste.
NTTAA............................  National Technology Transfer and
                                    Advancement Act of 1995.
OMB..............................  Office of Management and Budget.
RCRA.............................  Resource Conservation and Recovery
                                    Act.
SIC..............................  Standard Industry Code.
SQG..............................  Small Quantity Generator.
SQHUW............................  Small Quantity Handler of Universal
                                    Waste.
TC...............................  Toxicity Characteristic.
TCLP.............................  Toxicity Characteristic Leaching
                                    Procedure.
TSDF.............................  Treatment, Storage, and Disposal
                                    Facility.
UMRA.............................  Unfunded Mandates Reform Act.
U.S.C............................  United States Code.
USWAG............................  Utilities Solid Waste Activities
                                    Group.
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III. Background

a. What Is Mercury-Containing Equipment?

    Mercury-containing equipment (MCE) consists of devices, items, or 
articles that contain varying amounts of elemental mercury that is 
integral to their functions, including several types of instruments 
that are used throughout the electric utility industry and other 
industries, municipalities, and households. Some commonly recognized 
devices are thermostats, barometers, manometers, and mercury switches, 
such as light switches in automobiles. This definition does not include 
mercury waste that is generated as a by-product through the process of 
manufacturing or treatment.

b. Previous Regulations for Mercury-Containing Equipment

    Any person who generates a solid waste, as defined in 40 CFR 261.2, 
must determine whether or not the solid waste is a hazardous waste. The 
waste may be hazardous either because it is listed as a hazardous waste 
in subpart D of 40 CFR part 261 or because it exhibits one or more of 
the characteristics of hazardous waste, as provided in subpart C of 40 
CFR part 261.
    Mercury-containing equipment is likely to be a hazardous waste when 
disposed of or reclaimed because it exhibits the toxicity 
characteristic (TC)

[[Page 45509]]

for mercury. Mercury-containing equipment that is a hazardous waste is 
referred to in this preamble as ``spent mercury-containing equipment'' 
or ``spent MCE.'' Before today's rulemaking, many generators of spent 
mercury-containing equipment identified or listed as a hazardous waste 
were subject to the full RCRA subtitle C hazardous waste management 
requirements. Specifically, generators were subject to all applicable 
requirements of 40 CFR parts 260 through 268, including the on-site 
management, pre-transport, and manifesting requirements of part 262.
    However, not all generators of spent mercury-containing equipment 
have had to manage it as a hazardous waste or be subject to the full 
set of RCRA hazardous waste requirements. Under RCRA subtitle C, there 
are different requirements for generators of hazardous waste depending 
on the amount of hazardous waste they generate in a calendar month. In 
addition, as discussed below, certain spent mercury-containing 
equipment are already subject to the universal waste rule.
    Specifically, generators of more than 1,000 kilograms of hazardous 
waste in a month (considered large quantity generators (LQGs)) are 
required to comply fully with the federal hazardous waste regulations. 
On the other hand, generators of more than 100 kilograms but less than 
1,000 kilograms of hazardous waste in a calendar month (considered 
small quantity generators (SQGs)) are subject to the RCRA hazardous 
waste management standards, but are allowed to comply with certain 
reduced regulatory requirements (see 40 CFR 262.34(d), (e), and (f)). 
In addition, under 40 CFR 261.5, conditionally-exempt small quantity 
generators (CESQGs), defined as facilities that generate less than 100 
kilograms of hazardous waste in a calendar month, are not subject to 
the RCRA subtitle C hazardous waste management standards, provided they 
send their waste to a municipal solid waste landfill or non-municipal 
nonhazardous waste facility approved by the state for the management of 
CESQG wastes. Finally, households that generate spent mercury-
containing equipment are exempt from the federal hazardous waste 
management requirements under the household hazardous waste exemption 
in 40 CFR 261.4(b)(1).

c. Universal Waste Rule

    In 1995, EPA promulgated the universal waste rule (60 FR 25492, May 
11, 1995) to establish a streamlined hazardous waste management system 
for widely generated hazardous wastes as a way to encourage 
environmentally sound collection and proper management of the wastes 
within the system. Hazardous waste batteries, certain hazardous waste 
pesticides, mercury-containing thermostats, and hazardous waste lamps 
are already included on the federal list of universal wastes.
    Handlers and transporters who generate or manage items designated 
as a universal waste are subject to the management standards under 40 
CFR part 273, rather than the full RCRA subtitle C regulations. 
Handlers include universal waste generators and collection facilities. 
The regulations distinguish between ``large quantity handlers of 
universal waste'' (those who handle more than 5,000 kilograms of total 
universal waste at one time) and ``small quantity handlers of universal 
waste'' (those who handle 5,000 kilograms or less of universal waste at 
one time). The 5,000 kilogram accumulation criterion applies to the 
quantity of all universal wastes accumulated. The streamlined standards 
include requirements for storage, labeling and marking, preparing the 
waste for shipment off site, employee training, response to releases, 
and notification.
    Transporters of universal waste are also subject to less stringent 
requirements than the full subtitle C hazardous waste transportation 
regulations. The primary difference between the universal waste 
transporter requirements and the subtitle C transportation requirements 
is that no manifest is required for transport of universal waste. The 
details of the universal waste management standards for both handlers 
and transporters will be addressed later in this preamble.
    Under the universal waste rule, destination facilities are those 
facilities that treat, store, dispose, or recycle universal wastes. 
Universal waste destination facilities are subject to all currently 
applicable requirements for hazardous waste treatment, storage, and 
disposal facilities (TSDFs) and must receive a RCRA permit for such 
activities. Hazardous waste recycling facilities that do not store 
hazardous wastes prior to recycling may be exempt from permitting under 
the federal regulations (40 CFR 261.6(c)(2)).
    Finally, some states are authorized to add wastes that are not 
federal universal wastes to their lists of universal wastes. Therefore, 
in some states, spent mercury-containing equipment may already be 
regulated as a universal waste.

d. Proposed Rule

    On June 12, 2002 (67 FR 40508), EPA proposed to add spent mercury-
containing equipment to the federal list of universal waste.\1\ EPA 
believes that adding these materials to the universal waste rule will 
facilitate their collection and will reduce the amount of mercury 
reaching municipal landfills and incinerators.
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    \1\ In the same Federal Register notice, EPA proposed to 
conditionally exclude cathode ray tubes (CRTs) from the definition 
of solid waste. The CRT proposal will be addressed in a separate 
rulemaking package.
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    Mercury-containing equipment, other than mercury thermostats, was 
not included in the 1995 universal waste rule because EPA felt that it 
did not have sufficient information to include all spent mercury-
containing equipment in the rulemaking. The Agency decided to begin 
implementation of its new universal waste program with a limited number 
of waste types.
    However, EPA stated in the preamble to the universal waste final 
rule that it would welcome a petition to add a broad category of 
mercury-containing equipment to the universal waste rule, and 
specifically asked for views defining such a category of waste, 
information on the amounts of mercury contained in such devices, and 
information on the construction of such devices (60 FR 25508).
    On October 11, 1996, the Utility Solid Waste Activities Group 
(USWAG), the Edison Electric Institute, the American Public Power 
Association, and the National Rural Electric Cooperative Association 
submitted a rulemaking petition to add mercury-containing equipment to 
the universal waste program. The petition explained that spent mercury-
containing equipment is well-suited for the universal waste rule 
because it meets the factors that EPA laid out in the original 
universal waste rule for wastes that warrant inclusion into the 
program, particularly the wide-spread uses of MCE and the potential for 
the universal waste program to divert waste from the municipal waste 
stream into hazardous waste management. The petition also provided EPA 
with some of the information the Agency needed to evaluate spent MCE 
for inclusion into the program, as explained in the proposal.
    The Agency received a number of comments in response to its 
proposal to add spent mercury-containing equipment to the list of 
universal wastes. Most commenters supported the proposal, though some 
had comments or questions on some of the details. The more significant 
comments on this

[[Page 45510]]

proposal are addressed later in this preamble, but all are addressed in 
background documents for today's final rule, which are in the docket.

IV. Rationale for Including Spent Mercury-Containing Equipment in the 
Scope of the Universal Waste Rule

a. Factors for Inclusion in the Universal Waste Rule

    EPA is adding spent mercury-containing equipment to the universal 
waste rule today because it believes this waste meets the factors that 
describe waste that is appropriate for management under the streamlined 
universal waste system. There are numerous and varied generators of 
spent MCE, and MCE is generated sporadically. Adding MCE to the 
universal waste rule simplifies handling and disposal of the equipment 
for generators, while ensuring that spent MCE is sent to the 
appropriate destination facilities, where it will be managed as a 
hazardous waste with all applicable subtitle C requirements.
    The universal waste regulations include eight factors to consider 
in evaluating whether a waste is appropriate for inclusion in the 
universal waste rule. These factors, codified at 40 CFR 273.81, are to 
be used to determine whether regulating a particular hazardous waste 
under the streamlined standards would improve overall management of the 
waste and, therefore, whether the waste is a good candidate for the 
universal waste rule.
    As the Agency noted in the preamble to the final universal waste 
rule (60 FR 25513), not every factor must be met for a waste to be 
appropriately regulated under the universal waste system. However, 
consideration of all the factors should result in a conclusion that 
regulating a particular hazardous waste under 40 CFR part 273 will 
improve waste management.
    EPA has examined spent mercury-containing equipment using the 
criteria in section 273.81, and has considered the information 
submitted in the October 11, 1996 rulemaking petition, as well as the 
public comments submitted in response to the proposed rule. The Agency 
has determined that, on balance, these wastes are appropriate for 
inclusion onto the federal list of universal wastes for management 
under part 273. EPA believes that adding spent MCE to the universal 
waste rule will make collection and transportation of this waste to an 
appropriate facility easier and, therefore, will reduce the amount of 
mercury being released into the environment.
    The results of the Agency's evaluation of these wastes using the 
universal waste factors are described below--further details on the use 
of mercury-containing equipment can be found in the economic analysis 
to this rulemaking, available in the docket: \2\
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    \2\ The eighth factor, ``Such other factors as may be 
appropriate,'' is not discussed here.
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1. The Waste, as Generated by a Wide Variety of Generators, Should Be a 
Listed or Characteristic Hazardous Waste (40 CFR 273.81(a))
    Some spent mercury-containing equipment contains a few grams of 
mercury, whereas larger articles, items, or devices contain much more 
mercury. Many of these pieces of equipment would fail the toxicity 
characteristic leaching procedure (TCLP) toxicity level for mercury of 
0.2 mg per liter and are therefore classified as a D009 characteristic 
hazardous waste.\3\
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    \3\ The TCLP is a laboratory test designed to simulate leaching 
from a sanitary landfill, and, therefore, identify wastes likely to 
leach hazardous concentrations of particular toxic constituents into 
the ground water. If a sample of the test leachate contains a 
contaminant appearing in 40 CFR 261.24's Table 1 at a level higher 
than the regulatory level given in that table, the waste is 
hazardous for the toxicity characteristic.
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2. The Waste, or Category of Waste, Should Not Be Exclusive to a 
Particular Industry or Group of Industries, But Generated by a Wide 
Variety of Establishments (40 CFR 273.81(b))
    Spent mercury-containing equipment is generated by a variety of 
industries or groups of industries. Electric and gas utilities generate 
the greatest amount of this waste, but mercury-containing equipment is 
used to regulate pressure and temperature or to conduct electricity in 
switches or regulators in many other fields, for example, medicine, 
farming, and automobile manufacture. Generators of spent mercury-
containing equipment, therefore, are from a wide range of sectors, from 
utilities to manufacturers, commercial establishments, universities, 
hospitals, and households.
3. The Waste Should Be Generated by a Large Number of Generators and 
Generated Frequently, But in Relatively Small Quantities (40 CFR 
273.81(c))
    Spent mercury-containing equipment is generated by a large number 
of generators and generator sites throughout different industries. Most 
facilities generate spent MCE sporadically because of the frequent, but 
unpredictable, nature of equipment failures and in relatively small 
quantities, because MCE often contains small amounts of mercury.
4. Systems To Be Used for Collecting the Waste (Including Packaging, 
Marking, and Labeling Practices) Should Ensure Close Stewardship of the 
Waste (40 CFR 273.81(d))
    The packaging and labeling standards finalized today for spent 
mercury-containing equipment, and already in place for used 
thermostats, will ensure close stewardship of the waste.
5. Risks Posed by the Waste During Accumulation and Transport Should Be 
Relatively Low Compared to the Risks Posed by Other Hazardous Waste, 
and Specific Management Standards Would Be Protective of Human Health 
and the Environment During Accumulation and Transport (40 CFR 
273.81(e))
    The Agency believes that the requirements of the universal waste 
program are highly effective in mitigating risks posed by spent 
mercury-containing equipment. Specifically, the requirements for 
handlers to manage and transport ampules of mercury in a way that will 
prevent breakage or to seal the MCE in its original housing and ship it 
sealed will ensure safe management and transport. In addition, the 
universal waste program requires proper training for employees in 
handling universal waste and responding to releases and shipment in 
accordance with Department of Transportation (DOT) regulations. These 
requirements will make the risks posed during accumulation and 
transport very low.
6. Regulation of the Waste Under 40 CFR Part 273 Will Increase the 
Likelihood That the Waste Will Be Diverted From Non-Hazardous Waste 
Management Systems (e.g., the Municipal Solid Waste Stream) to 
Recycling, Treatment, or Disposal in Compliance With Subtitle C of RCRA 
(40 CFR 273.81(f))
    Managing spent mercury-containing equipment under the universal 
waste program is expected to increase the number of these articles, 
items and devices collected, but more importantly, to increase the 
amount of mercury being diverted from the non-hazardous waste stream 
into the hazardous waste stream because it will allow generators, 
especially those that generate this waste sporadically, to send it to a 
central consolidation point.
    Before today, these materials could not be consolidated by an 
entity unless it had a RCRA permit. Under the universal waste rule, a 
handler of universal waste can send the universal waste to another 
handler, where it can be consolidated into a larger shipment

[[Page 45511]]

for transport to a destination facility. Therefore, spent MCE will be 
easier to send to recycling and proper disposal, making it less likely 
that it will be sent for improper disposal in municipal landfills or 
incinerators. In addition, because of the streamlined structure of the 
universal waste rule, spent MCE that might otherwise be sent to a 
municipal landfill under a CESQG or household hazardous waste 
exemption, can now be more easily collected and consolidated for 
hazardous waste disposal by those who are interested in managing it 
this way. This waste would be diverted out of the municipal solid waste 
stream.
    In public comments responding to EPA's proposal on MCE, both New 
Jersey and Minnesota referred to their state programs, which already 
allow spent MCE to be managed under pilot programs like the universal 
waste rule. In both cases, the programs have been a success, 
facilitating the collection and safe management of mercury for proper 
management.
7. Regulation of the Waste Under 40 CFR Part 273 Will Improve the 
Implementation and Compliance With the Hazardous Waste Regulatory 
Program (40 CFR 273.81(g))
    The structure and requirements of the universal waste rule are well 
suited to the circumstances of handlers of spent mercury-containing 
equipment and their participation in the universal waste program will 
improve compliance with the hazardous waste regulations. Because spent 
MCE is generated in small quantities in geographically dispersed 
operations, compliance with full subtitle C requirements is difficult 
to achieve. Compliance with subtitle C is particularly difficult for 
electric or gas utility operations which are located on customer's 
properties. In addition, handlers of spent MCE who are infrequent 
generators of hazardous waste and who might otherwise be unfamiliar 
with the more complex subtitle C management structure, but who generate 
spent MCE, will be able to more easily send this waste for proper 
management.
    Therefore, adding spent MCE to the universal waste rule will 
improve compliance with the hazardous waste regulations by making it 
more achievable. As a result of improved compliance, human health and 
the environment will benefit.

b. Effect of Designation as a Universal Waste

    After recognizing that MCE meets the factors described in 40 CFR 
273.81, EPA developed this rulemaking to create a streamlined structure 
for managing spent MCE that is protective of human health and the 
environment and, at the same time, facilitates compliance by users of 
this equipment. Management of MCE as universal waste means that (1) the 
MCE waste must meet land disposal restrictions (LDRs) when treated and 
(2) the waste must be sent to Subtitle C permitted facilities. When 
managed improperly, mercury poses a threat to human health and the 
environment; these features of the universal waste program ensure that 
the mercury in these devices ends up at a destination facility equipped 
to manage it properly.
    As described in section III.C. of this preamble, under the 
universal waste rule, requirements are streamlined only for generators 
and transporters of universal waste. Destination facilities must comply 
with the substantive requirements of the LDR provisions of the 
Hazardous and Solid Waste Amendments of 1984 (HSWA). These include (1) 
A prohibition on accumulating prohibited wastes directly on the ground; 
(2) a requirement to treat waste to meet treatment standards before 
land placement; (3) a prohibition on dilution; and (4) a prohibition on 
accumulation, except for purposes of accumulating quantities sufficient 
for proper recovery, treatment, or disposal. The Agency believes that 
compliance with the substantive requirements of the LDR program is 
necessary to minimize risks from mismanaging spent mercury-containing 
equipment.
    The management controls that are already built into the universal 
waste system for labeling, accumulation, training, response to 
releases, and exports also will apply to waste MCEs. As discussed later 
in this preamble, the packaging and management standards of the 
universal waste rule are meant to assure that spent MCE will be managed 
to prevent releases.

c. Expected Changes in Management of Mercury-Containing Equipment

    EPA also expects an increase in the amount of MCE waste that is 
recycled or disposed of in Subtitle C facilities. Small and large 
quantity generators are already required to manage their mercury waste 
as hazardous waste under RCRA subtitle C. As a result of implementation 
of this rule in the states, some of these generators are likely to 
begin managing their MCE waste as a universal waste, either to save 
money or to improve implementation of their existing waste management 
program.
    The universal waste rule allows consolidation of MCE at central 
locations, which makes it easier for smaller users to arrange for 
hazardous waste management of these materials when they are generated. 
For example, under the universal waste rule, a fire station, community 
center, or retail store could participate in MCE collection programs 
without having to get a RCRA permit, as they would be required to under 
full subtitle C regulation. EPA intends to encourage individual 
households and CESQGs to participate in such programs, which would 
divert MCE from the municipal waste stream.
    EPA expects greater quantities of MCE to be collected and managed 
under the universal waste rule based on a recent evaluation of how the 
universal waste rule has influenced management of nickel-cadmium 
batteries, one of the original universal wastes included in the 1995 
rulemaking. The evaluation shows that between 1997 and 2003, collection 
of nickel-cadmium batteries increased from approximately 950 tons per 
year in 1997 to almost 1700 tons in 2003. While this dramatic 
improvement in collection is due to a number of factors, anecdotal 
evidence described in the evaluation report shows that the 
establishment of consolidation facilities, which was made possible by 
the universal waste rule, significantly reduced the administrative and 
financial burden of collection and transportation of these batteries. 
The relevant chapter of the program evaluation report is available in 
the docket to this rulemaking.
    In summary, EPA believes that controls to address the environmental 
hazards of spent MCE can best be implemented through a universal waste 
approach where handlers are operating within a simple, streamlined 
management system with some limited oversight. The universal waste 
program addresses the environmental concerns surrounding the management 
of such wastes, while at the same time putting into place a structure 
that will allow for and encourage increased collection of spent MCE. 
Comments from the public and other regulatory agencies, particularly 
state hazardous waste authorities, support EPA's conclusion that 
management of spent MCE as a universal waste will maximize the amount 
of this waste being managed properly and, therefore, will protect human 
health and the environment from exposure to the mercury in this 
equipment.

V. Discussion of Final Rule

a. Effective Date

    Today's rule will become effective immediately upon publication in 
the Federal Register. The RCRA statute establishes six months as the 
usual

[[Page 45512]]

effective date for Subtitle C rules (see RCRA section 3010 (b)), though 
the Agency may provide for a shorter or immediate effective date in the 
case of regulations with which the regulated community does not need 
six months to come into compliance, as determined by the Administrator. 
Because today's final rule reduces regulatory burden, as well as 
because some states already have similar programs in place, we see no 
reason to delay its effective date. Thus, today's rule will be 
effective immediately upon publication in the Federal Register.

b. Waste Covered by Final Rule

    Today's final rule incorporates into the universal waste scheme 
spent mercury-containing equipment that is hazardous waste due to 
mercury. The definition of mercury-containing equipment promulgated 
today states that mercury-containing equipment means a device or part 
of a device that contains elemental mercury integral to its function.
    Note that the definition of ``mercury-containing equipment'' in 
today's rule includes mercury thermostats. Mercury thermostats, which 
formerly were a separate category of universal waste, are now 
incorporated into the spent MCE category for the final rule. As a 
result of public comments, EPA determined that mercury thermostats are 
a type of spent MCE as the category of universal waste is being defined 
in the rule; therefore, having a separate section of the regulations 
for them would be duplicative and potentially confusing.\4\
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    \4\ Batteries and lamps remain covered under their respective 
sections of the universal waste rule, 273.13(a) & (d) and 273.33(a) 
& (d), even though wastes can contain mercury. The specific 
management standards promulgated specifically for them in part 273 
are more appropriate than the ones in today's rule.
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    EPA has changed some of the wording in the definition of ``mercury-
containing equipment'' from the proposed `` * * * contains elementary 
mercury necessary for its operation'' to `` * * * contains elemental 
mercury integral to its function.'' We believe that ``integral to its 
function'' more clearly explains EPA's meaning that the mercury must be 
part of the function of the device for it to be covered by the 
universal waste rule. If the mercury is in the device accidentally, or 
the device has been contaminated by an external source of mercury, the 
device would not be eligible for management as a universal waste.
    This change will clear up some confusion about the phrase 
``necessary for its operations,'' expressed in the comments to the 
proposed rule. One commenter asked if EPA's requirement that mercury in 
MCE be ``necessary for [the device's] operation'' meant that only 
equipment for which no alternative to mercury is available were 
eligible for management as a universal waste. Although EPA encourages 
the use of alternatives to mercury whenever possible, the definition of 
MCE does not speak to whether there are feasible alternatives to 
mercury available, but rather to whether the equipment contains mercury 
in its regular use.
    Some examples are helpful in understanding what kind of devices 
fall into today's definition of mercury-containing equipment. These 
devices vary in size and function, but, for the most part, the mercury 
(1) is a relatively small amount of the complete piece of equipment, 
(2) is encapsulated in some way in an ampule or other housing, and (3) 
is used for delicate measuring of temperature or pressure or for 
completing an electrical circuit. Some of the various types of MCE are 
manometers, barometers, flow meters, mercury light switches, mercury 
regulators, pressure relief gauges, water treatment gauges, and gas 
safety relays. A more comprehensive list of examples of MCE is 
available in the docket to the rulemaking in the Economic Analysis to 
this rule.

c. Management Requirements for Spent Mercury-Containing Equipment

    The following requirements were developed to prevent releases of 
mercury while it is being managed as a universal waste. Mercury, 
although a naturally occurring element, is released into the 
environment by human industrial practices. It is easily volatilized and 
can be dispersed widely through the air and transported thousands of 
miles, accumulating in plants, animals, and humans as it travels. Once 
released, mercury persists in the environment. Once mercury enters 
water, biological processes transform it to methylmercury, a highly 
toxic form that builds up in fish and animals that eat fish. Exposure 
to high levels of mercury has been linked to serious nervous system and 
developmental problems in humans. Therefore, EPA is concerned about 
mercury releases to the environment that might occur if spent MCE is 
managed improperly in the municipal waste stream. The universal waste 
rule is designed to maximize collection of spent MCE while preventing 
releases from management of those wastes. It does so through its 
management requirements.
1. Summary of Requirements
    The universal waste rule classifies regulated persons managing 
universal wastes into four categories: (1) Small quantity handlers of 
universal waste (SQHUWs), (2) large quantity handlers of universal 
waste (LQHUWs), (3) universal waste transporters, and (4) destination 
facilities. The term ``universal waste handler'' is defined in 40 CFR 
273.9 as a generator of universal waste, or the owner or operator of a 
facility that receives universal waste from other universal waste 
handlers, accumulates universal waste and sends it to another universal 
waste handler, to a destination facility or to a foreign destination. 
The definition of ``universal waste handler'' does not include (1) a 
person who treats, disposes of, or recycles universal waste (except 
under the provision of Sec.  273.13(a) or (c) and Sec.  273.33(a) or 
(c)); or (2) a person engaged in the off-site transportation of 
universal waste by air, rail, highway, or water, including a universal 
waste transfer facility.
    Whether a universal waste handler is a SQHUW or LQHUW depends on 
the amount of universal waste it accumulates at any time. Large 
quantity handlers of universal waste are subject to certain regulatory 
requirements in addition to those applicable to SQHUWs. A small 
quantity handler of universal waste is defined under 40 CFR 273.9 as a 
universal waste handler who accumulates less than 5,000 kilograms of 
universal waste, calculated collectively, at any time. The 5,000 
kilogram accumulation limit applies to the total quantity of all 
universal waste handled on-site, regardless of the category of 
universal waste.
    If, at any time, a SQHUW accumulates 5,000 kilograms or more of 
universal waste, then it becomes a large quantity universal waste 
handler for that calendar year. A handler may re-evaluate its status as 
a LQHUW in the following calendar year.
    Today's management requirements for spent mercury-containing 
equipment are generally the same as the existing requirements for 
mercury-containing thermostats. In fact, as already noted, the Agency, 
in response to public comments, has incorporated mercury thermostats 
into today's new category of universal waste--mercury-containing 
equipment--as they meet the definition of spent MCE under today's rule.
2. Requirements for Small and Large Quantity Handlers
    Under today's rule, the existing universal waste requirements 
currently applicable to SQHUWs and LQHUWs

[[Page 45513]]

also apply to handlers of spent mercury-containing equipment. For both 
SQHUWs and LQHUWs, these requirements include waste management 
standards, labeling and marking, accumulation time limits, employee 
training, response to releases, requirements related to off-site 
shipments, and export requirements. LQHUWs are subject to additional 
notification and tracking requirements.
    As described above, in response to public comment that universal 
waste thermostats are actually a subset of the new category, spent MCE, 
the Agency has decided to fold mercury thermostats into the category 
for spent MCE to avoid confusion over the identical standards and to 
avoid duplicative labeling and reporting requirements by generators of 
both materials. Because mercury thermostats are like many other types 
of MCE, as they contain mercury in ampules that are sometimes removed 
for transport for mercury recovery, the management standards for SQHUWs 
and LQHUWs in today's rule are very similar to those promulgated in 
1995 for mercury thermostats. However, we added some standards to 
account for the wider range of devices that will be encompassed by this 
broader category. Those changes are explained in more depth below.
    We also made several technical changes to the regulations in order 
to broaden the previously existing category of mercury thermostats to 
cover all mercury-containing equipment. In order to make this shift in 
the regulatory text, we have (1) replaced references to universal waste 
thermostats throughout parts 260 through 273 with references to 
universal waste mercury-containing equipment and (2) replaced the 
universal waste applicability section for mercury thermostats in Sec.  
273.4 with an applicability section for mercury-containing equipment.
    In the proposed rule, the waste management requirements for spent 
mercury thermostats and spent MCE under 40 CFR 273.13 and 40 CFR 273.33 
were already consolidated; therefore, no significant changes were 
required to that language in the final rule as a result of the removal 
of the thermostat category. The final rule does change the labeling 
requirement, however. The labeling requirement for both SQHUWs and 
LQHUWs of spent mercury-containing equipment is comparable to the 
requirements for other types of universal waste. In addition, if a 
handler of universal waste handles mercury thermostats, but not other 
types of universal waste mercury-containing equipment, it may label or 
mark them, or the container in which they are collected, as universal 
waste thermostats (e.g., ``Universal Waste--Mercury Thermostats''), 
rather than having to make or buy new labels for Mercury-Containing 
Equipment.
    For the purpose of creating waste management standards for this 
waste stream, we have distinguished between several different ways that 
mercury may be contained in an MCE and determined what the management 
standards should be for each category to assure protection of human 
health and the environment. The waste management standards in today's 
rule address how handlers should manage (1) whole spent MCE with 
ampules, and (2) whole spent MCE with open original housings, as well 
as how to manage (3) ampules that have been removed from the device 
they were in, (4) open tubes of mercury removed from a device (such as 
a barometer or manometer), and (5) ancillary parts of spent MCE that 
may have mercury in them, such as a valve.
    Primarily, a handler of universal waste spent MCE must manage it in 
such a way that prevents releases of any component of the universal 
waste into the environment, especially mercury. Thus, any MCE that 
shows evidence of leakage, spillage, or damage that could cause leakage 
under reasonably foreseeable circumstances must be contained to prevent 
the release of mercury. The container must be closed, structurally 
sound, compatible with the contents of the spent MCE, must not have any 
evidence of leakage, spillage, or damage that could result in leakage 
under reasonably foreseeable circumstances, and must be reasonably 
designed to prevent the escape of mercury into the environment by 
volatilization or any other means.
    Many types of MCE, for example, thermometers, thermostats, and 
mercury switches, have an ampule in which the mercury is held. An 
ampule, as defined in this rule, is an airtight vial made of glass, 
plastic, metal, or any combination of these materials. Handlers of 
undamaged whole spent MCEs must comply with part 273 standards such as 
labeling, accumulation time, training, and response to releases, and 
must manage the MCE to prevent releases, as described above.
    Other types of MCE, however, like those that measure pressure, such 
as barometers and manometers, contain mercury in a tube that is open at 
one end. In this rule, we refer to this type of device as MCE with 
``open original housing.'' Mercury ``housing'' is a container that 
holds the mercury while it performs its function in the piece of MCE, 
such as a case or enclosure that, unlike an ampule, is open at one end 
and may allow for escape of mercury unless sealed before management as 
waste.
    Many of these devices with an open original housing are designed to 
be sealed for transportation in a way that prevents mercury escape 
because it is likely that during their lifecycles, they will have to be 
moved from one location to another. If, however, the device cannot be 
sealed in such a way to prevent release of mercury to the environment 
during universal waste accumulation and transportation, it is not 
eligible for management in the universal waste program because it 
cannot meet the management standards in Sec. Sec.  273.13 and 273.33.
    The management requirements for leaking or damaged spent MCE above 
are also appropriate for intact spent MCE in which the mercury is in an 
open housing and not in an ampule, and which have not been sealed. 
Because this type of MCE, even when intact, has a greater potential to 
release mercury into the environment than MCE in which the mercury is 
wholly contained in an ampule, these devices must be managed with more 
caution. In addition, ancillary pieces of spent MCE that contain 
mercury not contained in an ampule must also be contained to minimize 
the chance of any releases due to their management. Sometimes, in a 
device that contains mercury not in an ampule, the mercury can escape 
into other parts of the device. For instance, mercury might get into a 
valve that separates the mercury in a MCE from the rest of the device. 
For these reasons, under today's rule, when the mercury is not 
contained, both intact spent MCE and any MCE parts must be managed in a 
container that is closed, structurally sound, compatible with the 
contents of the spent MCE, reasonably designed to prevent the escape of 
mercury into the environment by volatilization or any other means, and 
that does not have any evidence of leakage, spillage, or damage that 
could result in leakage under reasonably foreseeable circumstances.
    A final category of spent MCE that must be managed in these same 
containers is ancillary equipment that came in contact with mercury and 
has been removed from MCE. Mercury containing devices in which the 
mercury is not in an ampule can contain valves or other pieces that 
have come in contact with the mercury and, therefore, are best managed 
under the universal waste rule, so they are sent to a destination 
facility. Like damaged whole spent MCE or whole spent MCE with mercury 
in an open housing, they must be contained in a container that is 
closed, structurally sound, compatible

[[Page 45514]]

with the contents of the spent MCE, reasonably designed to prevent the 
escape of mercury into the environment by volatilization or any other 
means, and that does not have any evidence of leakage, spillage, or 
damage that could result in leakage under reasonably foreseeable 
circumstances.
    Today's standards also state that ampules of mercury may be removed 
from spent MCE for waste management if the handler follows a set of 
requirements to ensure that the handler minimizes the chance of 
breakage of the ampules and, if breakage does occur, that there is 
containment to prevent mercury from escaping to the environment. In 
addition, employees must be trained in waste management and emergency 
procedures. The specific requirements are in 40 CFR 273.13(c)(2)(i) 
through (viii) for SQHUWs and 40 CFR 273.33(c)(2)(i) through (viii) for 
LQHUWs.
    In response to public comments that not all spent mercury-
containing equipment that we described in the proposed rulemaking 
contains mercury in ampules, EPA is finalizing regulations that allow a 
handler of universal waste to remove the part of the mercury-containing 
equipment that contains the mercury in its original housing, even if it 
is not an ampule. In this case, the handler must immediately seal the 
original housing for the mercury with an airtight seal to prevent the 
escape of any mercury into the environment and must then follow all the 
requirements for managing removed ampules, referred to above.
    How the original housing is sealed with an airtight seal will 
depend on the size and shape of the housing itself, as they vary 
depending on what kind of device the MCE is. Therefore, today's rule 
does not mandate a particular way to seal this housing. However, the 
seal must be airtight. The housing must be sealed in a manner that does 
not allow mercury to be released before or during the sealing process, 
and the housing must be packaged in a manner that prevents releases 
when transported to the destination facility. Examples of methods EPA 
believes would be effective to prevent releases from a smaller device 
are placing the housing in containers that are sealed with 
electrician's tape or placing the housing in a sealed zipper storage 
bag and then in a secondary container. Most important in this 
management step is that no mercury escapes into the environment from 
the sealed housing. EPA believes that allowing the original housings of 
mercury to be sealed and managed in the same way as ampules are managed 
will bring waste into the universal waste system that might have 
otherwise been disposed of inappropriately.
    Handlers of universal waste that remove an ampule or remove the 
original housing of mercury and seal it must also determine whether 
mercury has leaked from the equipment. The handlers must evaluate any 
leaked materials, any clean-up residues resulting from spills or leaks, 
or any other solid waste generated from the removal of ampules or 
removal and sealing of mercury housing to determine if it exhibits a 
characteristic of hazardous waste, including, but not limited to, the 
toxicity characteristic for mercury. Any material exhibiting a 
characteristic of hazardous waste would have to be managed in 
accordance with all applicable requirements of 40 CFR parts 260 through 
279, instead of as a universal waste.
    In summary, leaking whole spent MCE, spent intact MCE with open 
original housing, and ancillary equipment all must be managed in 
containers that will not allow escape of mercury to the environment, 
and ampules and housings of mercury with airtight seals must be managed 
to minimize breakage and must be managed in containers that prevent the 
escape of mercury if breakage does occur.
    The notification requirement in today's rule for LQHUWs of spent 
mercury-containing equipment is consistent with the existing 
notification requirement for LQHUWs of all other universal wastes (40 
CFR 273.32). Under today's rule, a large-quantity handler of spent MCE 
is required to notify the Regional Administrator and receive an 
identification number before meeting or exceeding the accumulation 
limit. In addition, these handlers are required to keep records of 
universal waste shipments received or sent off-site. These records may 
take the form of a log, invoice, manifest, bill of lading, or other 
shipping document.
    Handlers of spent mercury-containing equipment are also subject to 
the requirements applicable to all universal waste handlers in the 
existing universal waste rule framework. These requirements can be 
found in 40 CFR part 273 subparts B and C, and cover accumulation time 
limits, employee training, response to releases, off-site shipments, 
and exports.
3. Requirements for Transporters
    Under 40 CFR 273.9, the definition of a universal waste transporter 
is ``a person engaged in the off-site transportation of universal waste 
by air, rail, highway, or water.'' Persons meeting the definition of 
universal waste transporter include those persons who transport 
universal waste from one universal waste handler to another, to a 
processor, to a destination facility, or to a foreign destination. 
These persons are subject to the universal waste transporter 
requirements of part 273, subpart D. Today's rule does not change any 
of the existing requirements applicable to universal waste 
transporters.
    EPA notes that today's rule also does not affect the applicability 
of shipping requirements under the hazardous waste materials 
regulations of the Department of Transportation. Transporters continue 
to be subject to these requirements, if applicable (e.g., 49 CFR 
173.164: Metallic Mercury and Articles Containing Mercury).
4. Requirements for Destination Facilities
    Under 40 CFR 273.9, the definition of a destination facility is ``a 
facility that treats, disposes of, or recycles a particular category of 
universal waste'' (except certain activities specified in the 
regulations at Sec.  273.13(a) and (c) and Sec.  273.33(a) and (c)). 
Today's rule does not change any of the existing requirements 
applicable to universal waste destination facilities (subpart E of part 
273).
5. Effect of Today's Rule on Household Wastes and Conditionally-Exempt 
Small Quantity Generators
    Adding spent mercury-containing devices to the federal definition 
of universal wastes does not impose any requirements on households and 
conditionally-exempt small quantity generators for managing these 
devices.\5\ Household waste continues to be exempt from RCRA subtitle C 
regulations under 40 CFR 261.4(b)(1). However, under the universal 
waste rule, households and CESQGs may choose to manage their spent 
mercury-containing equipment in accordance with either the CESQG 
regulations under 40 CFR 261.5 or as a universal waste under part 273 
(40 CFR 273.8(a)(2)).
---------------------------------------------------------------------------

    \5\ Conditionally-exempt small quantity generators (CESQGs) 
generate less than 100 kilograms of hazardous waste in a calendar 
month and are not subject to RCRA subtitle C hazardous waste 
management standards, provided they send their waste to a municipal 
solid waste facility or other facility approved by the state for the 
management of industrial or municipal non-hazardous wastes (40 CFR 
261.5).
---------------------------------------------------------------------------

    It should be noted, however, that 40 CFR 273.8(b) continues to 
apply. Under this provision, if household or CESQG wastes are mixed 
with universal waste subject to the requirements of 40 CFR

[[Page 45515]]

part 273 (i.e., universal waste that is not generated by households or 
CESQGs), the commingled waste must be handled as universal waste in 
accordance with part 273. Under today's rule, handlers of universal 
waste who collect 5,000 kilograms or more of this commingled waste are 
considered large quantity handlers of universal waste and must meet the 
requirements of that category of universal waste handler.
    Spent mercury-containing equipment that is managed as a universal 
waste under 40 CFR part 273 is not required to be included in a 
facility's determination of hazardous waste generator status (40 CFR 
261.5(c)(6)). Therefore, a generator that manages such devices under 
the universal waste rule and does not generate any other hazardous 
waste is not subject to other subtitle C hazardous waste management 
regulations, such as the hazardous waste generator regulations in part 
262.
    A universal waste handler that generates more than 100 kilograms 
but less than 1,000 kilograms of hazardous waste in a calendar month in 
addition to the universal waste it generates is regulated as a small 
quantity generator of hazardous waste and is required to manage all 
hazardous waste not included within the scope of that universal waste 
rule in accordance with all applicable subtitle C hazardous waste 
management standards. Similarly, a universal waste handler that 
generates 1000 kilograms or more of hazardous waste in a calendar month 
in addition to the universal waste it generates is regulated as a large 
quantity generator of hazardous waste.
6. Land Disposal Restriction Requirements
    As discussed above, under the existing regulations (40 CFR 
268.1(f)), universal waste handlers and transporters are exempt from 
the land disposal restriction (LDR) requirements regarding testing, 
tracking, and recordkeeping in 40 CFR 268.7 and the storage prohibition 
in 40 CFR 268.50. Today's rule does not change the regulatory status of 
destination facilities; they remain subject to the full LDR 
requirements.

VI. Discussion of Comments Received in Response to Proposed Rulemaking 
and the Agency's Responses

    EPA received 49 comments on the mercury-containing equipment 
portion of the June 12, 2002 proposed rule for cathode ray tubes and 
mercury-containing equipment. Thirty-six of these comments expressed 
agreement that EPA should finalize this rule, though some included 
suggestions to change the rule.
    In this section, we are addressing those comments that we believe 
are of interest to the general public or which resulted in significant 
changes to the final rule from the proposal. A full record of the 
comments we received and our responses to them is available in a 
Response to Comments document in the docket for this rulemaking.

a. Regarding the Addition of Mercury-Containing Equipment to the 
Universal Waste Rule

    EPA received several comments on the topic of ampules of mercury. 
There were five basic categories of comments: (1) EPA did not include a 
definition of ``ampule;'' (2) many types of mercury-containing 
equipment do not contain mercury in ampules; (3) spent MCE with mercury 
not in ampules should still be able to be managed as universal waste; 
(4) mercury not in ampules should be able to be removed from larger MCE 
and managed as universal waste; and (5) there should be more stringent 
management standards for mercury from spent MCE that is not in ampules.
    The original proposal did not include a requirement that only spent 
MCE with ampules would be eligible as a universal waste. The first 
paragraph of proposed Sec. Sec.  273.13(c) and 273.33(c) discusses 
management of whole spent MCE, regardless of whether the mercury is 
contained in an ampule. This remains the case in the final rule. 
However, in response to these comments on ampules, EPA has made several 
changes to the final rule.
    First, EPA included in the final rule a definition of ``ampule.'' 
Although many ampules are glass vials, EPA is aware that they can be 
made of glass, plastic, or metal. EPA's primary concern with these 
items is that they are airtight and will not allow mercury to escape 
into the surrounding environment. Therefore, EPA defined an ampule as 
``an airtight vial made of glass, plastic, metal, or any combination of 
these materials.''
    Secondly, EPA has added language to the first paragraph of Sec.  
273.13(c) and Sec.  273.33(c) to address concerns that intact spent MCE 
could cause releases to the environment even when not damaged. The 
proposed language assumed that spent MCE would only release mercury if 
damaged, but we also want to prevent potential releases that happen 
because of an item's design, not damage. To account for this, EPA has 
added language in both relevant sections stating that containers must 
be reasonably designed to prevent the escape of mercury into the 
environment by volatilization or any other means. This standard 
requires that the handlers design containers for spent MCE that will 
prevent releases under reasonably foreseeable conditions, which is 
similar to other standards in the universal waste rule that rely on a 
handlers anticipating the fate of the universal wastes they are 
handling under reasonably foreseeable conditions.
    In addition, in the final rule, mercury not in ampules may be 
removed from the larger MCE for management as a universal waste, as 
described under the requirements for large and small quantity handlers. 
Again, in response to concerns that this could lead to mercury 
releases, EPA stipulates that once the housing of mercury is removed, 
it must be immediately sealed and managed in the same manner as an 
ampule.
    In summary, universal waste MCE includes whole spent MCE, both with 
and without ampules, ampules of mercury, and the original housing of 
mercury removed from its device and sealed with an airtight seal. EPA 
believes that these changes address the concerns of the commenters on 
the issue of ampules.
    We also received several comments stating that to avoid duplicative 
labeling and notification requirements, EPA should put spent MCE and 
thermostats in the same category of universal waste. EPA agrees with 
these comments and decided that thermostats are, in fact, one kind of 
mercury-containing equipment and should not be distinguished from other 
kinds of MCE. Therefore, we have replaced the thermostat category in 
the universal waste regulations with the category for mercury-
containing equipment. Although this may cause some confusion in the 
short-term for people already familiar with the regulations for mercury 
thermostats, EPA decided that the long-term benefits of having one 
category of universal waste for all types of spent MCE outweighed any 
short-term confusion.
    To assuage two foreseeable concerns with this approach, we made two 
adjustments. First, we clarified that thermostats are included in the 
universal waste category of MCE in several places in the regulatory 
text, including the definitions and the title of the waste management 
standards for universal waste spent MCE. In addition, to preclude 
handlers of only mercury thermostats from having to change their 
labeling procedures, the final rule allows such handlers to continue to 
label a universal waste thermostat or a container containing only 
universal waste thermostats with the previous language required in 
these regulations: ``Universal Waste--Mercury

[[Page 45516]]

Thermostat(s),'' ``Waste Mercury Thermostat(s),'' or ``Used Mercury 
Thermostat(s).''
    In addition to these changes to the final rule, EPA is clarifying 
several issues in response to comments received.
    Several commenters asked whether the weight of an entire device 
needs to be counted toward the 5,000 kilogram total universal waste 
threshold for a small quantity generator of universal waste. If the 
mercury has not been removed from the device, then the weight of the 
entire device is counted toward the 5,000 kilogram limit. However, EPA 
clarifies that if the mercury has been removed from a device and the 
rest of the device is managed as non-hazardous waste, then only the 
weight of the part being managed as spent MCE needs to be counted as 
universal waste. In this case, the generator is responsible for 
ensuring that any part of the device that may have become contaminated 
with mercury, especially in the case of an open housing of mercury, is 
being managed appropriately under RCRA.
    We also received a comment asking EPA to clarify the status of MCE 
being sent to a reseller for further evaluation as to whether it is 
usable in its current condition. Like other materials, MCE being sent 
to a reseller for possible reuse is not a solid waste, and, therefore, 
not a hazardous or universal waste until the handler has decided to 
discard it. If it is not discarded, it is not a waste and therefore not 
a universal waste.
    With respect to the scope of the term ``mercury-containing 
equipment,'' we received a comment regarding the items listed in the 
preamble to the rule. We clarify today that the items mentioned in this 
preamble as MCE do not constitute a comprehensive list of MCE. Any item 
that meets the definition of mercury containing equipment in today's 
rule is eligible for management as a universal waste.
    EPA also received several comments to the proposed rulemaking 
suggesting that EPA promulgate a conditional exclusion from the 
definition of solid waste for MCE that is recycled. These comments are 
beyond the scope of today's rulemaking, which is a response to a 
petition to add MCE to the universal waste rule. The proposed rule for 
these materials did not discuss development of a conditional exclusion 
from the definition of solid waste, and such an action would raise very 
different issues and require a separate rulemaking.

b. Regarding the Universal Waste Notification Requirement

    In the proposed rule, EPA specifically requested comment on the 
notification requirements in the universal waste rule. Specifically, 
the Agency requested comments on deleting 40 CFR 273.32(b)(5), which 
requires that when large quantity handlers of universal waste notify 
the EPA Regional Administrator of their large quantity handler status, 
they include a statement that (1) states that they are accumulating 
over 5,000 kilograms of universal waste and (2) lists the types of 
universal wastes they are accumulating above this quantity.
    EPA believes the latter half of this requirement is unnecessary. In 
40 CFR 273.32(b)(4), the regulations already require LQHUWs to include 
a list of all the types of universal waste managed by the handler in 
their notification. Also, the 5,000 kilogram limit for LQHUWs is for 
all universal waste accumulated by the handler, not for any one 
universal waste. Therefore, EPA proposed to delete the requirement to 
notify the Regional Administrator of which particular universal wastes 
exceed the 5,000 kilogram limit.
    In response to its solicitation of comment on this issue, EPA 
received 16 comments from state regulatory agencies and the regulated 
community in support of this change and no comments in opposition