Questions and Answers on the Universal Waste Rule

These are questions which are frequently asked to both states and EPA regarding the universal waste rule. The North Dakota Department of Health answers these questions from North Dakota's perspective, which is consistent with EPA, but may not be consistent with other states.

1. Can a state include additional wastes in its universal waste rule at the same time that it establishes the rule and submits the program with the additional universal wastes to EPA for authorization? For example, can a state adopt a universal waste rule that regulates fluorescent tubes and antifreeze as universal waste?

Yes, a state can designate additional waste streams as universal waste at the same time it creates its own universal waste rule. However, the state must determine that the wastes meet the criteria for inclusion in the universal waste program. The state does not need to submit new wastes to EPA for authorization. EPA will review and authorize the state's universal waste program and the three federal universal wastes, but will not conduct an authorization review of state-only universal wastes.
EPA, however, requests that sates send copies of tentative decisions to include new wastes and the proposed management of those wastes to the appropriate Regional EPA office to give EPA an opportunity to comment.
North Dakota has chosen to broaden the scope of universal waste thermostats to universal waste mercury containing devices. This was made during the initial adoption of the universal waste rule, and no other wastes have been included.

2. Can a state itself petition EPA to add wastes to the federal universal waste rule, or does the petition have to come from a private party?

A state can petition EPA to include other wastes in the federal universal waste rule. To date, North Dakota does not have any plans to petition EPA to include any other wastes in the federal rule.

3. How does the petition process work at the state level? Does it require public participation and rulemaking to add a universal waste to an authorized state's program?

North Dakota will provide an opportunity for public comment on any tentative decisions made to grant or deny a petition to include a waste under the universal waste provisions of the North Dakota Hazardous Waste Management Rules. The petition must follow the petition process outlined in the rules. To date, North Dakota has not received any petitions to include additional wastes in the universal waste rule.

4. Can a state add a waste which is non-hazardous or a state-only hazardous waste to the universal waste rule?

Yes, a state may add a non-hazardous waste to the universal waste rule by designating the waste as a state-only hazardous waste. Additionally, a state may not list as a universal waste any wastes for which the state's program is not authorized to administer. An example would be toxicity characteristic wastes which was promulgated under HSWA authority for which the state's program has not been authorized to implement. To date, North Dakota has not designated any state-only hazardous wastes nor have any requests to so designate any wastes as state-only hazardous waste been received.

5. After a state has adopted and received authority to implement the universal waste rule, does the state have ultimate decision making authority to add wastes or is EPA still involved, and if EPA is involved, what is their role?

Once a state is authorized, the state does not need to submit program revisions to EPA for additional wastes under the universal waste rule. EPA does request the opportunity to comment on any additional wastes which an authorized state designates as a state-only hazardous waste which may be managed under the universal waste rule.

If EPA finds that an authorized state has added a universal waste which does not qualify or that management standards are not sufficiently protective of human health and the environment, the authorized state's program is effectively less stringent than the federal program. At this point, EPA has the authority to withdraw authorization. EPA has decided not to conduct authorization reviews of new state-only universal wastes and management standards. EPA's position is that once a state is authorized, EPA in effect authorizes in advance the state's new state-only universal wastes and the management standards for those wastes.

6. Does EPA anticipate issuing a rule on fluorescent tubes as mentioned in the preamble to universal waste?

EPA has not decided when to promulgate a rule regarding fluorescent tubes. North Dakota has pro- actively designated fluorescent tubes as part of the universal waste rule under the universal waste mercury-containing device.

7. Where do the LDR recordkeeping requirements begin, and who is responsible/liable for identifying the treatment standards/technologies and completing the LDR forms.

LDR recordkeeping requirements take effect at the destination facility. Additionally, the destination facility bears the burden of demonstrating compliance with the LDR requirements. However, those universal waste handlers not subject to the LDR requirements are still subject to the "no dilution" prohibitions under the universal waste rule.

8. Are all batteries included under universal waste or just those which are considered hazardous?

Exceptions for batteries not covered under the universal waste rule are found in Section 33-24-05-702. First, a battery must be declared a waste. Next, the battery must be considered a hazardous waste either by listing or by characteristic and must not be generated by a household. And lastly, the "Mercury- Containing and Rechargeable Battery Management Act" prohibits states from requirements which are not identical to those in the May 11, 1995 Universal Waste Rules as promulgated by EPA.

9. A handler who transports universal waste is considered a universal waste transporter. Is there a minimum quantity for which a universal waste transporter is not considered a universal waste transporter?

All handlers who transport universal waste are considered a universal waste transporter. There is no minimum quantity and no exemptions for de minimis quantities.

10. Would a program consisting of a state-sponsored network of handler locations at private businesses be considered a "waste pesticide collection program"?

Yes. The universal waste rule does not require the state to operate the waste pesticide collection program in order for the pesticides managed under such a program to be eligible for the universal waste program. In North Dakota, the Department of Agriculture operates Project Safe-Send which collects unused and unusable pesticides for disposal.

11. When the universal waste rule is implemented, do the traditional liability issues change? For example, who is liable for any mismanagement of a universal waste at a handler location, in transit, and at the destination facility? Are any and all handlers liable for mismanagement at a destination facility or at subsequent handlers? Or, just the "final handler" that chooses the destination facility? Do generators lose cradle to grave responsibility with the universal waste rule?

Under full hazardous waste regulations, only the waste handler who violates the hazardous waste regulation is "liable" (or subject to enforcement actions) for that violation. Generators of hazardous waste are not responsible for mismanagement by subsequent waste handlers. The universal waste rule does not change this allocation of responsibility.

Generators are responsible for subsequent mismanagement under CERCLA. The universal waste rule does not change CERCLA liability. Since universal wastes are still hazardous wastes, generators remain liable for remediation of releases of universal wastes under CERCLA.

12. When universal waste is shipped to a destination facility, does it have to be relabeled as hazardous waste at the destination facility, or is the universal waste labeling sufficient?

Universal waste remains hazardous waste. Destination facilities must comply with all currently applicable requirements for hazardous waste management facilities. However, there is no regulation which requires the relabeling of universal wastes.

13. Handlers can keep universal wastes on-site for up to one year after the date the universal waste was generated or received. A year after a handler received a universal waste, can the universal waste go to another handler, or must it go to a destination facility?

Universal waste can only be sent off-site to another handler, a destination facility or a foreign destination. Theoretically, each receiving facility could accumulate universal wastes for one year before sending it off to another handler, however, it does not appear that there is sufficient economic benefit for retaining universal wastes for periods of time exceeding one year.

Within the one year allowed for accumulation, could the universal waste go to several handlers?

Yes, but states may adopt more stringent rules which prohibit this activity. Also, theoretically, universal wastes could go from one handler to another handler indefinitely, but there is no good reason or economic benefit from this activity. North Dakota has not enacted a more stringent rule which precludes the trans-shipment of universal wastes through more than one handler within any specified time frame.

14. Pesticides that are included in a FIFRA recall can be managed under the universal waste rule. Does this apply to pesticides that have been included in past FIFRA recalls or just recalls instituted after the universal waste rule is adopted?

The timing of the recall is not significant. The universal waste rule is not limited to pesticides that are recalled after the universal waste rule takes effect.

15. Pesticides that are managed by farmers in accordance with section 33-24-03-40 NDAC (40 CFR 262.70) are not subject to the universal waste rules. Can farmers continue to dispose of pesticides recalled under FIFRA under this section?

Yes, if a recall under FIFRA allows a farmer to dispose of a pesticide on their own property, the farmer may do so and be in compliance with the regulations.

16. How are mixtures of universal waste and hazardous waste regulated - as a hazardous waste if the hazardous waste is a listed waste or the mixture exhibits a characteristic? If the hazardous waste is not listed, and the mixture does not exhibit a characteristic, does the land disposal regulations (LDRs) apply to this mixture?

The universal waste rules apply to only those wastes meeting the criteria for being classified as a universal waste. This does not include mixtures of hazardous waste and universal waste. Such mixtures are regulated as hazardous wastes.

However, the status of mixtures of characteristic universal waste and characteristic hazardous waste needs clarification. If the mixture no longer exhibits a characteristic, it would no longer be classified are a hazardous waste, but would remain subject to the land disposal restrictions. Formerly characteristic wastes are not excused from compliance with LDR treatment standards merely because the wastes cease to exhibit a characteristic.

In addition, two exceptions apply. First, mixtures of universal waste and conditionally exempt small quantity generator hazardous wastes are subject to the universal waste rules. This is because CESQG hazardous wastes are exempt from regular hazardous waste regulation. By the same logic, mixtures of universal waste and hazardous wastes exempted under the household hazardous waste provisions are subject to the universal waste provisions rather than the regular hazardous waste provisions.

The normal hazardous waste mixture rules would apply to mixtures of universal waste and non-hazardous solid wastes. If the universal waste were a listed waste, the mixture would be regulated as a hazardous waste (although the initial handlers were only subject to the universal waste rules). If the universal waste were a characteristic waste, and the mixture ceased to exhibit any characteristic, the mixture would be non-hazardous but the LDR treatment standards would continue to be in affect.

17. Handlers of universal waste are required to notify the Department of Health of their universal waste management activities, unless the handler has already notified and received and EPA identification number. However, won't handlers have to modify the initial notification to explain the additional universal waste management activity?

No. If a handler has already received an EPA identification number and notified of their hazardous waste management activities, they are not required to re-notify or submit subsequent notification for the additional universal waste management activities. First time notifiers can submit a one-time notification as described in section 33-24-05-712 NDAC (40 CFR 273.32), or submit a Notification of Regulated Waste Activity form (EPA Form 8200-12). If the Notification of Regulated Waste Activity form is used, the handler must identify that the form is being submitted for notification of universal waste management activities.

18. Does the universal waste rule prohibit a generator from handling a universal waste in accordance with full RCRA requirements, if the generator so desires?

The universal waste rule requires that generators manage their universal waste under sections 33-24-05-700 through 33-24-05-765 NDAC (40 CFR Part 273). However, managed these wastes in accordance with full RCRA hazardous waste regulations would be in compliance with the requirements of the universal waste rule.

19. If a generator originates a shipment of hazardous waste that is considered a universal waste in the receiving state, how does the generator get a signed manifest?

The initiating facility (the generator) would complete a manifest and give copies to the transporter as required by section 33-24-03-04 NDAC (40 CFR 262.23). The initiating facility must ensure that a manifest is forwarded to and signed by the universal waste receiving facility (the designated TSDR) and then sent back to the initiating facility.

20. Because a manifest is not required to ship universal waste, how does the generator or handlers know how and when their universal waste finally arrives at an appropriate destination facility?

Depending on whether the universal wastes are shipped to another handler or a destination facility, the initiating facility may not know if their universal waste arrives at an appropriate destination facility. For example, if the universal waste is shipped to another universal waste handler (an interim facility) before it is shipped to a destination facility, the originating facility would only have knowledge of the initial receiving facility. Prior to shipping a universal waste off-site to another handler, the initiating facility must receive consent that the handler agrees to accept the shipment.

Does North Dakota intend for the original handler to "designate" all the handlers and a final destination facility?

No. The original handler is only responsible for designating the next subsequent handler (though the original handler is free to elect to designate the final destination facility).

21. What happens when the universal waste rule is adopted by a state but is not yet authorized by EPA? What is EPA obligated to enforce?

EPA may only enforce the authorized state program. The authorized program would continue to impose regular hazardous waste management standards on universal waste handlers until EPA approved the state's universal waste rule. Note, however, that once the rule is approved, designations of new state- only universal wastes and management standards for such wastes become part of the authorized program without action by EPA. See question 5.

EPA has also issued a memorandum which asks EPA Regional offices to exercise enforcement discretion (vis a vis unmanifested universal wastes) in states that are authorized for the RCRA base program and that are implementing the universal waste rule but have not yet received final EPA authorization to do so. The memorandum further provides that the Regions should take enforcement actions involving universal waste only where handlers of such wastes are not in full compliance with the universal waste rule standards. In other words, EPA will not take action against handlers who manage hazardous waste batteries, hazardous waste pesticides and mercury-containing thermostats pursuant to Part 273 standards in states that are currently in the process of adopting the universal waste rule. States, of course, may still pursue enforcement action against these handlers. EPA hopes that the April 10, 1996 memorandum will facilitate implementation of the universal waste rule by states nationwide.

22. How are recycling facilities that receive universal waste regulated?

Recycling facilities are excluded from the definition of universal waste handlers. They are subject to normal hazardous waste management requirements. Under those requirements, storage prior to recycling is regulated and requires a permit under section 33-24-02-06.4. Many types of recycling processes are largely exempt from regulation, however others are regulated and require permits.

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Updated: September 13, 2000
Created: April 28, 1997

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