Safe Management of Recalled Airbags |
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Topics: Takata
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Andrew Wheeler
Environmental Protection Agency
30 November 2018
[Federal Register Volume 83, Number 231 (Friday, November 30, 2018)]
[Rules and Regulations]
[Pages 61552-61563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25892]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, and 262
[EPA-HQ-OLEM-2018-0646; FRL9986-91-OLEM]
Safe Management of Recalled Airbags
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule with request for comments.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing this
interim final rule in response to the urgent public health issue posed
by recalled Takata airbag inflators still installed in vehicles. With
this rule, EPA is facilitating a more expedited removal of defective
Takata airbag inflators from vehicles by dealerships, salvage yards and
other locations for safe and environmentally sound disposal by
exempting the collection of airbag waste
[[Page 61553]]
from hazardous waste requirements so long as certain conditions are
met. The Agency is also seeking comment on this interim final rule.
DATES: This interim final rule is effective on November 30, 2018.
Comments must be received on or before January 29, 2019. Under the
Paperwork Reduction Act (PRA), comments on the information collection
provisions must be received on or before January 29, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2018-0646, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Office of Resource Conservation and
Recovery, Materials Recovery and Waste Management Division, MC 5304P,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460, Tracy Atagi, at (703) 308-8672, (atagi.tracy@epa.gov).
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. General Information
II. Statutory Authority
III. When will this interim final rule be effective?
IV. Background Information
A. Regulation of Airbag Modules and Airbag Inflators Under RCRA
B. Background on the Takata Inflator Recalls
C. Damage Incidents Related to Airbag Inflator Recycling
D. Impact of Takata Bankruptcy and the Amended Preservation
Order on Management of Takata Inflators
V. Rationale for Conditional Exemption for Collection of Airbag
Waste
VI. Summary of Requirements of the Conditional Exemption for
Collection of Airbag Waste
A. Applicability of Conditional Exemption
B. Limits on Accumulation Times and Quantities at Airbag Waste
Handlers
C. Packaging, Labeling and Transportation Requirements for
Airbag Waste Handlers
D. Tracking and Recordkeeping Requirements for Airbag Waste
Handlers
E. Prohibition on Reuse of Defective Airbag Modules and Airbag
Inflators
VII. State Authorization
VIII. Statutory and Executive Order (E.O.) Reviews
I. General Information
A. Does this action apply to me?
This action applies to entities that manage airbag waste (i.e.,
discarded airbag modules and airbag inflators) that are subject to
hazardous waste regulations. The dealerships performing the Takata
recall work constitute the majority of the facilities that will be
impacted by this rule. These dealerships fall under NAICS code 441:
Motor Vehicle and Parts Dealers. EPA estimates that about 15,256
dealerships may be affected by this rule. Other potentially affected
entities include those in NAICS code 336: Transportation Equipment
Manufacturing, and in NAICS code 562: Waste Management and Remediation
Services.
B. Why is EPA issuing an interim final rule?
Section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C.
553(b)(B), provides that, when an agency for good cause finds that
notice and public procedures are impracticable, unnecessary or contrary
to the public interest, the agency may issue a rule without providing
notice and an opportunity for public comment. EPA has determined that
there is good cause for issuing this interim final rule without prior
proposal and opportunity for comment because such notice and
opportunity for comment would be impracticable and contrary to the
public interest. Specifically, prompt promulgation of this rule without
delay is necessary to protect human health and the environment by
facilitating the urgent removal of dangerously defective Takata airbag
inflators from vehicles, and by preventing defective Takata airbag
inflators from scrap vehicles from being reused, while maintaining
protection of human health and the environment during airbag waste
collection, storage and disposal.
In its November 3, 2015 Coordinated Remedy Order, the U.S.
Department of Transportation (DOT) National Highway Traffic Safety
Administration (NHTSA) found that it was imperative to accelerate the
rate of the recalls because ``[e]ach airbag inflator with the capacity
to rupture, as the recalled Takata inflators do, presents an
unreasonable risk of serious injury or death . . . Since the propensity
for rupture increases with the age of the inflator, and increases even
more when the vehicle has been exposed to consistent long-term HAH
[high absolute humidity] conditions, the risk for injurious or lethal
rupture increases with each passing day.'' \1\ This report emphasizes
that as the inflators get older, each day that passes brings forth an
increased danger. In addition, as noted in a November 15, 2017 report
prepared by the Independent Monitor for the Takata Restructuring on The
State of the Takata Recalls, ``[t]he words `grenade' and `ticking time
bomb' accurately convey the lethal potential of these defective
inflators.'' \2\
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\1\ National Highway Traffic Safety Administration (NHTSA),
Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-
0055, paragraph 32. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.
\2\ The Independent Monitor of Takata and the Coordinated Remedy
Program, The State of the Takata Airbag Recalls, November 15, 2017,
page 1, paragraph 1. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/the_state_of_the_takata_airbag_recalls-report_of_the_independent_monitor_112217_v3_tag.pdf.
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Delaying promulgation of this rule through notice and comment
procedures would be impracticable and contrary to the public interest
because such a delay would further increase the risk of death or
serious injury by slowing down the removal of defective Takata airbag
inflators from vehicles and impeding the collection of defective airbag
inflators from salvage yards and other locations (and increasing the
potential for defective airbag inflators in scrap vehicles to be
reused). This existing risk has now increased significantly since the
date of the 2015 NHTSA report because of recent events that further
heighten the urgency to accelerate the recall.
First, more time has passed since the date of the 2015 NHTSA study,
and as noted in that study and reiterated in the 2017 study by the
Independent Monitor, each passing day brings forth more danger. The
danger is greater today than in 2015 because of the increased age of
the inflators.
Second, with the recent amendment to DOT's Preservation Order on
April 12, 2018, and with Takata's restructuring due to bankruptcy
finalized on February 21, 2018, vehicle manufacturers no longer have to
send recalled inflators to Takata warehouses
[[Page 61554]]
for long-term storage but may now send them directly for disposal. EPA
is encouraging this through today's conditional exemption, since long-
term storage of recalled inflators can make the defect more dangerous.
These recalled inflators that are sent directly to disposal are not
covered by the amended Preservation Order and thus are regulated as
hazardous waste, whereas in the past they were not regulated as waste
under the original Preservation Order. As a result, many automobile
dealers and other entities who continue to replace recalled airbag
inflators at the current rate of repair could become subject to
additional hazardous waste generator requirements in 40 CFR part 262,
which would impose additional regulatory obligations on the dealers'
and salvage vendors' management of the inflators. Through our
conversations with DOT, the automobile manufacturers, automotive
salvage vendors, and other affected stakeholders, EPA has learned that
imposing full generator requirements on automobile dealers and salvage
vendors who lack the expertise and experience in managing hazardous
waste would result in the slowdown, rather than the necessary
acceleration, of the recall effort, resulting in even greater harm to
human health and the environment.\3\
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\3\ EPA 2018. Compilation of Stakeholder Meeting Summaries
Regarding RCRA Regulation of Airbag Waste.
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This rule is intended to assist the automobile dealers and other
entities in their handling of the airbags, and ensure delivery of the
airbags to facilities that can more expertly manage these airbags in
order to accelerate the recall. Thus, it is essential that there be no
delay in promulgating this rule.
Third, there have continued to be deaths as recently as 2018 as a
result of Takata airbag explosions. On January 1, 2018, there was a
death in Malaysia \4\, and before that, on July 13, 2017, a death in
Australia \5\ as well as another on July 19, 2017 in Florida \6\ as a
result of defective Takata airbags.
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\4\ Confirmed Rupture of Takata Driver's Airbag Inflator in
Malaysia on January 1, 2018 (Jan. 30, 2018), https://www.honda.com.my/corporate/press_release_details/660/Confirmed-Rupture-of-Takata-Driver%E2%80%99s-Airbag-Inflator-in-Malaysia-on-January-1,-2018.
\5\ Takata Recall: Sydney man was due to replace airbag two days
before fatal accident (last updated Sept. 6, 2018), https://www.theguardian.com/world/2018/sep/07/takata-recall-sydney-man-was-due-to-replace-airbag-two-days-before-fatal-accident.
\6\ 20th death from faulty Takata airbags reported by Honda
(Dec. 20, 2017), https://www.cbsnews.com/news/20th-death-from-faulty-takata-air-bags-reported-by-honda/.
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Finally, with respect to the effective date, EPA finds that it has
good cause to make the revisions immediately effective under section
553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 553(d), and
section 3010(b) of RCRA, 42 U.S.C. 6930(b). Section 553(d) provides in
pertinent part that final rules shall not become effective until 30
days after publication in the Federal Register, ``except . . . a
substantive rule which grants or recognizes an exemption or relieves a
restriction . . . or as otherwise provided by the agency for good
cause''. RCRA section 3010(b) has similar provisions for an immediate
effective date. It provides for an immediate effective date, rather
than the usual six month period, for ``(1) a regulation with which the
Administrator finds the regulated community does not need six months to
come into compliance . . . . or (3) other good cause found and
published with the regulation,'' among other exceptions.
The purpose of section 553(d) of the APA is to ``give affected
parties a reasonable time to adjust their behavior before the final
rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C.
Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104
(8th Cir. 1977) (quoting legislative history). Similarly, as noted
above, whether the regulated community needs a period of time to come
into compliance is relevant to the application of RCRA section 3010(b).
Because this rule grants a conditional exemption from certain RCRA
hazardous waste requirements, it qualifies for the APA exemption for
any rule that ``recognizes or grants an exemption or relieves a
restriction'' as well as the RCRA exemption for any rule for which
``the regulated community does not need six months to come into
compliance.''
Moreover, EPA has determined that for purposes of both the APA and
RCRA effective date provisions, there is good cause for making this
final rule effective immediately. In determining whether good cause
exists to waive the 30-day effective date under the APA, an agency
should ``balance the necessity for immediate implementation against
principles of fundamental fairness which require that all affected
persons be afforded a reasonable amount of time to prepare for the
effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA has
also applied this balancing test to the RCRA effective date provision
for purposes of this rule. This rule facilitates a more expedited
removal of defective Takata airbag inflators from vehicles by
dealerships, salvage yards and other locations for safe and
environmentally sound disposal by exempting the collection of airbag
waste from hazardous waste requirements so long as certain conditions
are met. Because this action provides an exemption to certain
requirements that automobile dealers and other parties would otherwise
need to follow under RCRA, and because this exemption is optional, the
regulated community does not need time to prepare for this rule.
Specifically, as further discussed in this preamble, the conditions for
the exemption mirror how recalled airbag modules and airbag inflators
have been managed under the DOT Preservation Order during the past
three years, and therefore no additional time is needed to start
operating under the exemption. In contrast, the necessity of immediate
implementation is great, as previously discussed.
As a result, EPA is making this interim final rule effective upon
publication.
II. Statutory Authority
These regulations are promulgated under the authority of sections
2002, 3001, 3002, 3003, 3004, 3006, 3010, and 3017 of the Solid Waste
Disposal Act of 1965, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA). This statute is commonly referred to
as ``RCRA.''
III. When will this interim final rule be effective?
The revisions to 40 CFR 260.10, CFR 261.4 and CFR 262.14 become
effective on November 30, 2018.
IV. Background Information
A. Regulation of Airbag Modules and Airbag Inflators Under RCRA
An airbag module is a fully assembled unit including both the
airbag inflator and the fabric cushion. An airbag inflator is the small
metal canister within the airbag module that generally houses explosive
propellant and an initiator. The airbag module is deployed when the
airbag inflator receives an electronic pulse from a vehicle's crash
sensor. In properly functioning airbag modules that use a gas
generating system, chemical propellant contained in an airbag inflator
unit burns in a fast and controlled manner, quickly emitting an inert
gas through vents in the canister out into the airbag module, which
inflates the cushion. Airbag modules across the automobile safety
industry utilize explosive propellants for rapid response to an
automobile accident.
Most airbag inflators use oxidizers as part of the gas generating
composition of
[[Page 61555]]
the propellant and, therefore, when discarded, would meet the
definition of ignitable hazardous waste under the RCRA hazardous waste
regulations at 40 CFR 261.21(a)(4), which states that a solid waste
exhibits the characteristic of ignitability if, ``[i]t is an
oxidizer.'' \7\ In addition, due to the explosive propellant component,
discarded airbag modules and airbag inflators meet the definition of
reactive hazardous waste at 40 CFR 261.23(a)(6), which states that a
solid waste exhibits the characteristic of reactivity if, ``[i]t is
readily capable of detonation or explosive reaction if it is subjected
to a strong initiating source or if heated under confinement.'' \8\ The
deployment of airbag inflators generally results in the depletion of
the ignitable and/or reactive components to cause the release of inert
gas, after which the inflators would no longer exhibit the ignitable or
reactive characteristics under the RCRA regulations.
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\7\ Ignitable hazardous waste carries the waste code D001.
\8\ Reactive hazardous waste carries the waste code D003.
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Airbag modules and airbag inflators that exhibit hazardous waste
characteristics under 40 CFR part 261 subpart C may be exempt from
hazardous waste regulations under certain scenarios, as summarized in
an EPA memorandum signed on July 19, 2018.\9\ As the memo explains, the
applicable RCRA hazardous waste regulations for airbag modules and
airbag inflators depend on the type of device, and how it is managed.
However, it is important to note that, as the memo explains, recalled
Takata airbag modules and airbag inflators removed from vehicles do not
qualify for the exemptions and exclusions available to non-recalled
airbag modules and airbag inflators because, as described in this
preamble, the Takata recalled airbag inflators cannot be safely reused
or deployed.
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\9\ U.S. EPA, Regulatory Status of Automotive Airbag Inflators
and Fully Assembled Airbag Modules, July 19, 2018.
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B. Background on the Takata Inflator Recalls
In May 2015, the U.S. Department of Transportation (DOT) announced
a national recall of airbag inflators manufactured by Takata due to a
defect in their phase-stabilized ammonium nitrate (PSAN) propellant,
which has resulted in fifteen deaths and at least 250 injuries in the
U.S. as of August 2018.\10\ These airbag inflator recalls constitute
the largest automotive recall in U.S. history, with 19 vehicle
manufacturers affected and approximately 65-70 million airbag inflators
scheduled to be recalled by December 2019. Of these affected airbag
inflators, 50 million inflators in an estimated 37 million vehicles
were recalled as of August 2018 and the remaining inflators will be
recalled by December 2019.\11\ Included in this number are tens of
thousands of ``Alpha'' airbag inflators, which have a significantly
higher risk of rupture due to a manufacturing defect resulting in low-
density propellant in addition to the propellant defect described
below. Nine of the 15 fatalities in the U.S. were caused by Alpha
airbag inflators.\12\
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\10\ National Highway Traffic Safety Administration (NHTSA),
Takata Recall Spotlight. https://www.nhtsa.gov/equipment/takata-recall-spotlight.
\11\ Id.; National Highway Traffic Safety Administration
(NHTSA), The State of Takata Recalls, https://www.nhtsa.gov/recall-spotlight/state-takata-recalls.
\12\ National Highway Traffic Safety Administration (NHTSA),
Takata ``Alpha'' Airbags Pose Increased Risk, https://www.nhtsa.gov/recalls/takata-alpha-air-bags-pose-increased-risk.
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On November 3, 2015, the National Highway Traffic Safety
Administration (NHTSA) issued a Coordinated Remedy Order that set forth
the requirements and obligations of certain motor vehicle manufacturers
and the airbag manufacturer, Takata, in connection with the recall and
remedy of certain types of Takata airbag inflators.\13\ In its
Coordinated Remedy Order, NHTSA found that it was imperative to
accelerate the rate of the recalls because ``[e]ach airbag inflator
with the capacity to rupture, as the recalled Takata inflators do,
presents an unreasonable risk of serious injury or death. . . . Since
the propensity for rupture increases with the age of the inflator, and
increases even more when the vehicle has been exposed to consistent
long-term HAH [high absolute humidity] conditions, the risk for
injurious or lethal rupture increases with each passing day.'' \14\
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\13\ National Highway Traffic Safety Administration (NHTSA),
Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-
0055. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.
\14\ Ibid, paragraph 32.
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The PSAN propellant used in the recalled Takata airbag inflators
degrades over time when moist propellant is exposed to long-term daily
temperature cycling. Moisture from the air adsorbs to PSAN particles,
changing the structure of the propellant and causing the inflator to
over-pressurize during deployment.\15\ In some cases, this over-
pressurization causes the metal canister to rupture, producing
shrapnel-like metal shards during airbag inflation. To mitigate these
effects, Takata began manufacturing PSAN airbag inflators containing
desiccant to prevent the adsorption of moisture to the PSAN particles.
While some inflators with desiccant have been recalled, others are
still under evaluation and may or may not be recalled in the
future.\16\
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\15\ National Highway Traffic Safety Administration (NHTSA),
Expert Report of Harold R. Blomquist, Ph.D., May 4, 2016. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/expert_report-hrblomquist.pdf.
\16\ National Highway Traffic Safety Administration (NHTSA), New
Takata recall involves Nissan, Ford, and Mazda vehicles, https://www.nhtsa.gov/recall-spotlight/new-takata-recall-involves-nissan-ford-and-mazda-vehicles.
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A 2015 Safety Data Sheet (SDS) for Takata pyrotechnic automotive
safety devices, including airbag modules and airbag inflators,
describes the hazards of the devices, including an ``[i]nitiation
hazard of an uncontrolled activation of the safety device due to: Fire;
heat; electrostatic discharge; inductions through electromagnetic
radiation; or, excessive mechanical load'' and a ``[b]urn hazard when
there is direct contact with pyrotechnic safety device during
activations.'' \17\ The firefighting measures described in the SDS
include evacuating personnel and emergency responders for 1500 feet
(\1/3\ mile). In the event of spilled material from damaged devices,
the SDS recommends that an explosive expert conduct the cleanup using
anti-static equipment.
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\17\ Takata Safety Data Sheet (SDS)--Pyrotechnic Automotive
Safety Devices, January 2015.
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Propagation and bonfire testing results submitted to EPA by Takata
provides further information regarding the hazards posed by recalled
Takata inflators.\18\ In September 2016, a third-party company
performed sympathetic propagation testing on two types of recalled
Takata airbag inflators for Takata. The testing generally consisted of
bundling several inflators together and deploying the center inflator
in order to observe the effects of deployment on the surrounding
inflators. The results of the testing showed that deployment of one
inflator does not cause deployment of surrounding inflators. In some
tests, the center inflator fragmented, but it still did not cause
surrounding inflators to deploy or fragment, although some superficial
damage to the surrounding inflators did occur. In April 2017, a third-
party company performed the UN 6(c) external fire (bonfire) test on
recalled Takata airbag inflators in individual fiberboard boxes. The
inflators did not mass detonate when exposed to fire, but they did
initiate, as
[[Page 61556]]
would be expected when inflators are exposed to temperatures generated
by this type of fire. In some cases, they were propelled from their
initial locations of rupture, throwing fragments beyond the initial
location of the inflator.
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\18\ Testing information was submitted as confidential business
information (CBI). The summary of results in this preamble does not
contain CBI.
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C. Damage Incidents Related to Airbag Inflator Recycling
While non-Takata airbag inflators do not present the same shrapnel-
producing defect as recalled Takata airbag inflators, these airbag
inflators can still present an explosive risk when processed or
recycled, as demonstrated by recent incidents at two facilities. In
February 2015, an explosion and fire occurred at one airbag
manufacturing and recycling facility as two workers handled airbag
inflators that had been processed in an incinerator prior to recycling
the metal.\19\ In that incident, one worker was hospitalized with head
injuries and burns. In March 2018, a large explosion at a different
airbag recycling facility in the dedicated airbag recycling area killed
one worker and seriously injured another.\20\ This explosion is
suspected to have been caused by the ignition of aluminum dust, which
was created in the process of shredding airbag inflators. These
incidents demonstrate the characteristically hazardous nature of waste
airbag inflators and their component materials and the potential risk
they pose to human health during processing.
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\19\ U.S. EPA, Autoliv Promontory Facility (20 June 2017), July
24, 2018.
\20\ Tennessee Occupational Safety and Health Administration,
Redacted Report: Lighting Resources LLC Explosion on March 14, 2018,
August 16, 2018.
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D. Impact of Takata Bankruptcy and the Amended Preservation Order on
Management of Takata Inflators
2015 Preservation Order
A Preservation Order issued by DOT and signed by Takata in February
2015 required all recalled airbag inflators be preserved intact, except
for those utilized for testing purposes. Takata was required to take
all reasonable and appropriate steps designed to prevent the partial or
full destruction, alteration, deletion, shredding, incineration or loss
of recalled or returned inflators, ruptured inflators and any other
inflators under the recalls. The recalled Takata inflators were
organized into categories of inflators that must be preserved. Ruptured
inflators from field events were required to be preserved in a locked,
secured, climate-controlled area, except for testing, inspection or
analysis purposes. Recalled or returned inflators were also to be kept
in a locked, secured and climate-controlled area.
EPA June Memorandum
In the June 23, 2017 memorandum, EPA clarified that the recalled
Takata airbag inflators are not subject to RCRA Subtitle C regulatory
requirements while they are being held under the 2015 DOT Preservation
Order because EPA does not consider materials being stored pending
judicial proceedings or investigations to be ``discarded.'' This
interpretation is consistent with previous interpretations EPA has
taken on similar materials, such as seized fireworks held as evidence
and materials from aircraft accidents subject to investigation, where
such items would otherwise be considered hazardous
waste.21 22 Additionally, EPA clarified that Takata recalled
airbag inflators would be considered ``used'' (i.e., spent materials),
and therefore a solid waste, once the preservation requirements are
lifted. When the recalled Takata airbag inflators are discarded as a
solid waste, EPA believes that they meet both the ignitability and
reactivity hazardous waste characteristics.\23\
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\21\ U.S. EPA, Explosives Presenting an Immediate Safety Threat
and Explosives Stored During Analysis, August 11, 1988. RCRA Online
11363.
\22\ U.S. EPA, Management of Aircraft Remains from Catastrophic
Loss Events, January 6, 2014. RCRA Online 14881.
\23\ Ignitable waste code D001 (40 CFR 261.21(a)(4)). Reactive
waste code D003 (40 CFR 261.23(a)(6)).
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Impact of Takata Bankruptcy on Recall Procedures
Takata's U.S. subsidiary, TK Holdings Inc., filed for Chapter 11
bankruptcy on June 25, 2017, and received U.S. court approval for its
plan on February 21, 2018.\24\ Takata's manufacturing assets were sold
to Key Safety Systems, another automobile safety system manufacturer,
and the money from the sale was used to settle debts and legal claims.
A small portion of the company emerged from bankruptcy and has a
section dedicated to facilitating the replacement of recalled airbag
inflators.\25\ Takata's plan sets aside funds designated for the
removal, handling and eventual disposal of recalled airbag inflators
received before the effective date of the bankruptcy, April 10, 2018,
and states that Takata will continue to provide replacement airbag
inflators until the recall process is finished, expected in 2020.\26\
Takata will also continue to receive recalled airbag inflators for
storage prior to testing or eventual disposal after April 10, 2018,
although it is not required to do so. EPA's understanding is that
Takata will charge the automobile manufacturers to cover the costs
associated with storage and eventual disposal of these inflators
received after April 10, 2018. These costs include the overhead
expenses associated with Takata managing the collection, storage, and
disposal of airbag inflators, including wages and benefits for their
workers that are involved in handling and coordinating the movement of
the inflators. Prior to the bankruptcy effective date, Takata accepted
and managed these inflators from the affected vehicle manufacturers
free of charge.
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\24\ Prime Clerk, Takata TK Holdings Inc Bankruptcy Case
Information, https://restructuring.primeclerk.com/takata/Home-Index.
\25\ To avoid confusion, the entities responsible for managing
the Takata airbag inflator recalls, including Takata's post-
bankruptcy successor company TK Global, will collectively be
referred to as ``Takata'' in this preamble.
\26\ U.S. Bankruptcy Court--District of Delaware, Fifth Amended
Joint Chapter 11 Plan of Reorganization of TK Holdings Inc. and its
Affiliated Debtors, filed February 20, 2018.
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2018 Amended Preservation Order
The April 12, 2018 Amendment to the February 25, 2015 Preservation
Order and Testing Control Plan, issued by the U.S. DOT's NHTSA,
requires Takata to preserve certain airbag inflators that are the
subject of an ongoing defect investigation by NHTSA and the subject of
private litigation.\27\ The Amendment also requires Takata to implement
a control plan for the inspection, testing, or analysis of those
inflators.
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\27\ National Highway Traffic Safety Administration (NHTSA),
Amendment to the February 25, 2015 Preservation Order and Testing
Order Control Plan, April 12, 2018, EA15-001 (formerly PE14-016).
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/preservation_order_amendment_public_-_april_12_2018-tag.pdf.
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The original 2015 Preservation Order required Takata to preserve
indefinitely all affected airbag inflators, while the 2018 Amendment
enables Takata to reduce the number of preserved airbag inflators by
requesting the release of certain inflators from the Preservation Order
allowing them to be disposed in compliance with all applicable
regulations, including RCRA. The Amended Order also requires Takata to
account for returned foreign and other ammonium-nitrate containing
inflators. The Amendment applies to Takata airbag inflators removed
from vehicles as a result of recalls affecting the 19 vehicle
manufacturers.
The terms of the Amendment require Takata to track all airbag
inflators in its possession by unique serial number and set aside at
least 5% of inflators,
[[Page 61557]]
proportionate to the overall number of inflators received from each
State and of each type of inflator, for future analysis. The Amendment
allows Takata to submit Disposal Designations to NHTSA, identifying a
specific quantity of inflators to be released from preservation and
disposed. The designated inflators are considered released from the
Preservation Order fifteen business days after NHTSA's confirmation of
receipt of the Disposal Designation.
Although the affected vehicle manufacturers may choose to contract
with Takata's post-bankruptcy reorganized entity to transport and store
recalled airbag inflators, they are not required to do so by the
Preservation Order or Amendment. If a vehicle manufacturer chooses to
contract with the Takata entity, the Takata entity must preserve those
airbag inflators under the terms of the Preservation Order, and
therefore those airbag inflators are not solid wastes per EPA's June
23, 2017 memorandum as described above. However, a vehicle manufacturer
may choose not to contract with the Takata entity for a variety of
reasons, including increased cost, increased liability, and slower
disposal, in which case those airbag inflators would not be covered by
the Preservation Order or Amendment, and would be considered discarded
when removed from the vehicle.
V. Rationale for Conditional Exemption for Collection of Airbag Waste
In its 2015 Coordinated Remedy Order pertaining to the Takata
airbag recalls, DOT found that it was imperative to accelerate the rate
of the recalls because ``[e]ach airbag inflator with the capacity to
rupture, as the recalled Takata inflators do, presents an unreasonable
risk of serious injury or death. . .Since the propensity for rupture
increases with the age of the inflator, and increases even more when
the vehicle has been exposed to consistent long-term HAH [high absolute
humidity] conditions, the risk for injurious or lethal rupture
increases with each passing day.'' \28\
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\28\ National Highway Traffic Safety Administration (NHTSA),
Coordinated Remedy Order, November 3, 2015, Docket No. NHTSA-2015-
0055. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf.
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Since the original order was issued by DOT, the affected vehicle
manufacturers have been working steadily to remove the recalled Takata
airbag inflators from vehicles. As discussed earlier, because of DOT's
Preservation Order, the recalled airbag inflators have not been
regulated as hazardous waste and have instead been safely collected,
transported as hazardous materials and stored under the Preservation
Order.
With the amendment to DOT's Preservation Order and with Takata's
restructuring due to bankruptcy, vehicle manufacturers may now dispose
of recalled inflators that are not covered by the amended Preservation
Order directly, rather than sending them to the Takata warehouses for
long-term storage. This approach is preferable from a public health and
environmental protection perspective both because it reduces the volume
of inflators in long-term storage and because it is more efficient in
freeing up resources spent on handling and storage that can be spent
directly on the recalls themselves.
However, because this subset of recalled inflators is not subject
to the DOT Preservation Order, they would be regulated as hazardous
waste. As a result, many automobile dealers and other entities who
continue to replace recalled airbag inflators at the current rate of
repair would become subject to additional hazardous waste generator
requirements in 40 CFR part 262, which would impose additional
regulatory obligations on the dealers' and salvage vendors' management
of the inflators.
Most automobile dealers and salvage vendors are currently in the
category of ``Very Small Quantity Generators'' of hazardous waste. By
managing hazardous airbag waste, the dealers and salvage vendors would
likely generate sufficient amounts of hazardous waste (on a monthly
basis) to become subject to increased regulations associated with
higher generator categories for which dealers and salvage vendors
typically have not had experience, familiarity, or expertise. Imposing
these increased generator obligations on dealers and salvage vendors
would result in a much less efficient, effective and environmentally
protective approach to the urgent, time-critical recall effort. Through
our conversations with DOT, the automobile manufacturers, automotive
salvage vendors, and other affected stakeholders, EPA has learned that
imposing full generator requirements on automobile dealers and salvage
vendors who lack the expertise and experience in managing hazardous
waste might result in the slowdown, rather than the necessary
acceleration, of the recall effort, resulting in greater harm to human
health and the environment.\29\ The automobile manufacturers are
worried that, because of their lack of familiarity and expertise with
full RCRA hazardous waste generator regulations and the additional
costs related to the management of hazardous waste in these higher
generator categories, if the dealers were to become fully regulated
small or large quantity generators due to handling recalled airbag
waste, they may slow down or stop removing recalled airbag inflators
altogether. In addition, some stakeholders have expressed their concern
of a lack of hazardous waste transportation capacity, especially in
more sparsely populated rural areas of the country. As hazardous waste
generators, dealers would be required to use certified hazardous waste
transporters, which are less numerous and more expensive than standard
hazardous material transporters used to transport recalled inflators
under the DOT preservation order. Thus, placing full hazardous waste
generator requirements on dealers or salvage yards would not be the
most efficient or environmentally protective approach for the above
reasons. In contrast, as explained in the following section, an airbag
waste collection facility under the control of a vehicle manufacturer
or their authorized representative or under the control of an
authorized party administering a remedy program in response to the
recalls or a designated facility as defined in 40 CFR 260.10, has
greater expertise and familiarity in properly managing hazardous waste.
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\29\ EPA 2018. Compilation of Stakeholder Meeting Summaries
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A related but separate issue involves airbag modules and airbag
inflators scavenged from scrapped automobiles. One vendor company has
been involved in the collection of Takata airbag modules from the
approximately 6,000 salvage yards in the United States. The company was
approached by one automobile manufacturer after they discovered a
number of injuries were caused by recalled Takata airbag inflators
recovered from salvage yards and installed in other vehicles. The
salvage vendor worked with the automobile manufacturer, DOT, and the
independent monitor to put together a program to retrieve airbag
modules containing recalled airbag inflators before the inflators can
be removed and placed in another vehicle because at that point, they
are virtually untraceable. The vendor collects the airbag and brings
them to a central location where they undergo a validation step to
determine whether they are definitively recalled airbag inflators. This
validation includes using visual aids and scanning all VIN and serial
numbers. The vendor also supplies specifically designed packaging and
handles the
[[Page 61558]]
transportation for the airbag modules. Once a pallet of validated
airbag modules is collected (approximately 100-110 pieces), the pallet
is sent for disposal and a certificate of destruction is provided. The
airbag modules are transported in compliance with DOT hazardous
materials regulations. According to this vendor, if the airbag modules
must be handled as RCRA hazardous waste when removed from a vehicle in
the salvage yard, the salvage yards would likely stop removing them.
Due to the potential for the replacement of defective Takata airbag
inflators to slow down with the application of full RCRA generator
requirements, EPA has determined that modified RCRA requirements are
appropriate for automobile dealers, salvage yards, and other entities
that are removing the recalled airbag inflators and facilitating the
recalls.
As discussed earlier, any potential delay to the recalls presents
an immediate public health threat, increasing the chances of death or
serious injury due to a defective airbag deploying in a vehicle.
Moreover, the system for managing the recalled airbag modules and
inflators under the DOT Preservation Order over the last three years
has provided for protection of human health and the environment during
collection and transport of the airbag modules and inflators. Under the
recalls, each individual recalled inflator is tracked by vehicle
identification number, and subject to DOT packaging and transportation
regulations. Vehicle manufacturers work with their dealers to make sure
that the recalled inflators are quickly moved offsite and not over-
accumulated, and have a strong incentive from a liability perspective
to continue to do so in the future.
The conditions for the exemption promulgated by this rule mirror
how recalled airbag modules and airbag inflators have been managed
under the DOT Preservation Order during the past three years, except
that instead of going to long-term storage under the Preservation
Order, the collected airbag waste will be sent for safe disposal at a
RCRA facility designated to receive hazardous waste per 40 CFR 260.10.
Thus, exempting the collection of airbag waste from RCRA requirements,
provided certain conditions are met, will result in an increase in
protection of public health by facilitating the recalls, allowing the
current airbag waste collection system to continue to safely collect
the recalled inflators, and sending them directly to appropriate
disposal facilities rather than to long-term storage facilities under
the Preservation Order.
As previously explained in other rulemakings, EPA has authority
under RCRA to issue conditional exclusions from the hazardous waste
regulations. EPA has previously interpreted RCRA section 3001(a) to
authorize the issuance of ``conditional exemptions'' from the
requirements of RCRA Subtitle C, where it determines that ``a waste
might pose a hazard only under limited management scenarios, and other
regulatory programs already address such scenarios.'' 62 FR at 6636
(February 12, 1997); 66 FR at 27222-27223 (May 16, 2001). The final
rule takes a similar approach to those earlier rules.
Section 3001(a) requires that EPA decide whether a waste ``should
be subject to'' the requirements of RCRA Subtitle C. Hence, RCRA
section 3001 authorizes EPA to determine when subtitle C regulation is
appropriate. EPA has consistently interpreted section 3001 of RCRA to
give it broad flexibility in developing criteria for hazardous wastes
to enter or exit the Subtitle C regulatory system.
RCRA section 1004(5) further supports EPA's interpretation. This
interpretation has also been upheld upon judicial review. See, e.g.,
Military Toxics Project v. EPA, 146 F. 3d 948 (DC Cir. 1998) (upholding
conditional exemption for storage of military munitions, based on EPA
determination that such wastes are subject to binding standards that
meet or exceed RCRA standards, in addition to an institutional
oversight process.) EPA has interpreted the statutory definition of
hazardous waste in RCRA section 1004(5)(B) as incorporating the idea
that a waste that is otherwise hazardous does not require regulation
under RCRA so long as it is properly managed.
EPA has most recently provided a full discussion of EPA's authority
for conditional exclusion from RCRA Subtitle C requirements in the
preamble in its final rule entitled Hazardous Waste Management System:
Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic
Sequestration Activities, 79 FR 350, 353-354 (January 3, 2014).
Consistent with that rule, and other rules involving conditional
exemptions, EPA has determined in this rule, as discussed above, that
exempting the collection of airbag waste from RCRA requirements,
provided certain conditions are met, will result in an increase in
protection of public health by facilitating the recalls and allowing
the current airbag waste collection system to continue to safely
collect the recalled inflators. It is important to note, however, that
this conditional exemption only applies to the storage and transport of
airbag waste during collection. The final disposition of the hazardous
airbag waste continues to be regulated under applicable RCRA Subtitle C
hazardous waste regulations.
EPA has received requests from stakeholders to unconditionally
exempt airbag modules and inflators from RCRA hazardous waste
regulations.\30\ However, EPA has determined, based on the nature of
the waste and the damage cases that have occurred at airbag recycling
facilities, an exemption for the final disposition of airbag waste
would not be protective of human health and the environment. While the
collection of intact airbag modules and inflators by vehicle
manufacturers or their authorized representatives according to DOT
requirements can be done safely without imposing RCRA requirements
beyond the conditions of the exemption discussed in this preamble,
processing the airbag inflator, which requires treatment of the
ignitable and reactive propellant inside the inflator, is another
matter. As discussed earlier, there have been at least two explosions
at airbag recycling facilities, including one that resulted in a
fatality, and in the case of the recalled Takata airbag inflators, the
degraded nature of the propellant makes the potential for explosive
reactions even worse. The protections provided by a RCRA Subtitle C
hazardous waste permitted facility, including personnel training,
inspections, contingency planning and emergency response, and an
informed community through public participation address the risk of
explosion from the end-of-life management of the collected airbag
waste.
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\30\ EPA 2018. Compilation of Stakeholder Meeting Summaries
Regarding RCRA Regulation of Airbag Waste.
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EPA solicits comment on the conditional exemption for airbag waste,
including the applicability of the exemption and the specific
requirements of this conditional exemption as explained in this
preamble. EPA will consider these comments in determining whether any
additional revisions to the regulation of airbag waste are necessary in
the future.
VI. Summary of Requirements of the Conditional Exemption for the
Collection of Airbag Waste
A. Applicability of Conditional Exemption
The new airbag waste conditional exemption found at 40 CFR 261.4(j)
applies to all airbag waste (i.e., airbag modules and airbag inflators)
collected from auto dealers or other airbag waste handlers for the
purpose of safe
[[Page 61559]]
disposal. Entities that generate airbag waste under the conditional
exemption are referred to as ``airbag waste handlers'' and can include
automobile dealers, independent repair facilities, collision centers,
and salvage and scrap yards.
The vast majority of items affected by the conditional exemption
will be Takata airbag waste. As of August 2018, an estimated 50 million
defective airbag inflators were under recall in approximately 37
million U.S. vehicles, with the potential for more recalls to be issued
in the future.
However, EPA has determined that the conditional exemption should
also apply to the collection of non-Takata airbag waste for the purpose
of disposal, provided that the conditions of the exemption are met.
Managing all airbag waste under the same protective requirements will
avoid confusion, increase efficiency and will help prevent non-Takata
airbag waste from being diverted into the municipal waste stream.
Because non-Takata airbag waste is expected to be a much smaller volume
waste than the recalled Takata airbag waste, in many cases automobile
dealers that generate hazardous waste would be below the Very Small
Quantity Generator threshold of 100 kilograms/month, which under the
federal RCRA requirements in 40 CFR 262.14 would allow the non-Takata
airbag waste to be disposed of in the municipal wastestream. Including
these materials under the airbag waste conditional exemption is more
protective of human health and the environment because it would
encourage their disposal at hazardous waste management facilities. To
make it clear that VSQGs have the option of managing their airbag waste
under the airbag waste conditional exemption and sending their airbag
waste to an airbag waste collection facility or a designated facility
subject to the requirements of 40 CFR part 261.4(j), EPA is including a
conforming change to the VSQG regulations at 40 CFR 262.14(a)(xi).
(Note that the airbag waste conditional exemption does not prevent the
airbag modules or airbag inflators from being managed under other
applicable exemptions as explained in the July 2018 memo referenced in
section IV.A. in this preamble) In addition, EPA also requests comment
on expanding the applicability of the airbag waste exemption to include
other similar propellent-actuated devices and their components. It
would be helpful if commenters include detailed information on these
additional wastestreams, including descriptions of the wastestreams,
volumes generated, risks posed and current management practices.
B. Limits on Accumulation Times and Quantities at Airbag Waste Handlers
Based on information provided by automobile manufacturers,
automobile dealers limit the quantity of recalled airbag modules and
inflators stored onsite. According to one automobile manufacturer,
guidance provided by Takata requires that dealers ship out the recalled
airbag inflators that have been removed from vehicles every two weeks,
or when the quantity reaches 200 inflators (i.e., a small
truckload).\31\
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\31\ EPA 2018. Compilation of Stakeholder Meeting Summaries
Regarding RCRA Regulation of Airbag Waste, Appendix 1.
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Limiting the quantity and accumulation times at airbag waste
handlers for airbag waste prevents over-accumulation and limits the
potential hazards posed by the inflators in case of a fire. Under the
airbag waste exemption finalized in this action, airbag waste handlers
are allowed to accumulate up to 250 airbag modules or airbag inflators
for up to 180 days, whichever comes first. Limiting the quantity of
airbag modules and airbag inflators accumulated onsite to 250 (i.e., a
little over one small truckload) allows the dealer and other airbag
waste handlers to prepare one truckload for shipping while continuing
to accumulate airbag waste for future shipments. The 180-day timeframe
is based on the small quantity generator limits in 40 CFR 262.16, and
addresses the future situation when the Takata recalls near completion,
resulting in a slower turn-around in recalled inflators accumulated at
the dealer. At that point it may take much longer to reach the 250-item
limit, and the 180-day time limit ensures storage does not extend
indefinitely, and that the airbag waste is safely disposed and not
abandoned.
C. Packaging, Labeling and Transportation Requirements for Airbag Waste
Handlers
During accumulation under the airbag waste exemption, airbag waste
must be packaged in a container designed to address the risk posed by
the airbag waste. Such a container would help reduce the potential for
the airbag waste to react in case of a fire, and also reduce the
projectile hazard if the defective Takata airbag inflators were to
deploy. In most cases, this container would be the same container that
the replacement airbag part was shipped in to the airbag handler, or,
in the case of salvage yards, the container provided by the salvage
recovery vendor. However, any container that meets DOT requirements for
transporting the airbag items would meet the terms of the conditional
exemption. Each container must be labeled ``Airbag Waste--Do Not
Reuse.''
Airbag waste must be shipped directly to either (1) a designated
facility as defined in 40 CFR 260.10, or (2) an airbag waste collection
facility in the United States under the control of a vehicle
manufacturer or their authorized representative, or under the control
of an authorized party administering a remedy program in response to a
recall under the National Highway Traffic Safety Administration. Airbag
waste collection facilities may include part supply centers/parts
distribution centers or any other facility authorized by vehicle
manufacturers to collect their airbag waste and hold it for more than
10 days. (Airbag waste held at a transfer facility for less than 10
days is considered to be in transport and only subject to the DOT
transportation regulations). Because the airbag waste is not subject to
hazardous waste generator requirements under 40 CFR part 262 while at
the airbag waste handler, the designated facility or the airbag waste
collection facility that accepts the airbag waste from the airbag waste
handler is considered the hazardous waste generator for the purposes of
40 CFR part 262 as the person whose act first causes a hazardous waste
to become subject to the generator regulations.
D. Tracking and Recordkeeping Requirements for Airbag Waste Handlers
As a condition for exemption from RCRA hazardous waste
requirements, airbag waste handlers must maintain at the facility and
make available upon inspection certain records that document off-site
shipments of airbag waste for a period of three years to help verify
the airbag waste went to an appropriate destination. Specifically, for
each shipment of airbag waste, the handler must maintain documentation
of the date of each shipment, the name of each transporter, the type
and quantity of airbag waste (i.e., airbag modules or airbag inflators)
shipped, and the name and address of the destination facility or airbag
waste collection facility. This recordkeeping requirement may be
fulfilled by ordinary business records, such as bills of lading,
including electronic records. In addition, airbag waste handlers are
required to maintain confirmations of receipt from the designated
facility or airbag waste collection facility in order to verify that
the airbag waste reached its intended destination and was not diverted.
These receipts must be
[[Page 61560]]
maintained at the airbag waste handler for a period of three years.
Specifically, the airbag waste handlers must maintain documentation of
receipt that includes the name and address of the designated facility
or airbag waste collection facility, the type and quantity of airbag
waste (i.e., airbag modules or airbag inflators) received, and the date
which it was received. The Agency is not requiring a specific template
or format for confirmations of receipt and anticipates that routine
business records (e.g., financial records, bills of lading, copies of
DOT shipping papers, electronic confirmations of receipt, etc.) could
contain the appropriate information sufficient for meeting this
requirement. Note that these recordkeeping requirements will be
implemented under an emergency Information Collection Request (ICR).
Based on the public comments received on this rule, EPA will publish a
separate revised ICR. See Section VIII.C in this preamble.
E. Prohibition on Reuse of Defective Airbag Modules and Airbag
Inflators
While used airbag modules and used airbag inflators are not solid
waste when reused for their intended purpose, in the case of airbag
modules and airbag inflators that are subject to a recall under the
National Highway Traffic Safety Administration, such reuse is not
allowed under RCRA. Reuse of recalled Takata inflators is particularly
dangerous due to the shrapnel producing defect that can cause death or
serious injury when the airbag is deployed, even when the vehicle
accident would otherwise be considered minor. As noted in a report by
the Takata Independent Monitor, salvaged Takata inflators may pose an
even greater risk than other defective Takata inflators due to possible
exposure to high heat and humidity for an extended time in the scrap
vehicles. In one case, a vehicle that was repaired with a salvaged
Takata airbag inflator was involved in a minor accident. The resulting
shrapnel from deployment of the defective resulted in serious injury to
the driver. The family owning the car had no reasonable way of knowing
that it contained a defective inflator.\32\ Any person who reuses a
defective inflator or causes it to be reused may therefore be placing
another person in imminent danger of death or serious injury. Such a
reuse would not meet the definition of legitimate recycling in 40 CFR
260.43 and would be considered sham recycling under 40 CFR 261.2(g).
Specifically, because the defective airbag modules and airbag inflators
cannot serve as an effective substitute for a commercial product, and
do not otherwise provide a useful contribution per 40 CFR 260.43(a)(1),
their reuse is considered to be sham recycling and prohibited under the
hazardous waste regulations.
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\32\ National Highway Traffic Safety Administration (NHTSA), The
State of Takata Airbag Recalls--Report of the Independent Monitor,
November 15, 2017. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/the_state_of_the_takata_airbag_recalls-report_of_the_independent_monitor_112217_v3_tag.pdf.
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VII. State Authorization
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize a qualified state to
administer and enforce a hazardous waste program within the state in
lieu of the federal program, and to issue and enforce permits in the
state. A state may receive authorization by following the approval
process described in 40 CFR 271.21 (see 40 CFR part 271 for the overall
standards and requirements for authorization). EPA continues to have
independent authority to bring enforcement actions under RCRA sections
3007, 3008, 3013, and 7003. An authorized state also continues to have
independent authority to bring enforcement actions under state law.
After a state receives initial authorization, new federal
requirements and prohibitions promulgated under RCRA authority existing
prior to the 1984 Hazardous and Solid Waste Amendments (HSWA) do not
apply in that state until the state adopts and receives authorization
for equivalent state requirements. In contrast, under RCRA section
3006(g) (42 U.S.C. 6926(g)), new federal requirements and prohibitions
promulgated under HSWA provisions take effect in authorized states at
the same time that they take effect in unauthorized states. As such,
EPA carries out the HSWA requirements and prohibitions in authorized
states, including the issuance of new permits implementing those
requirements, until EPA authorizes the state to do so.
Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements. Under RCRA section 3009,
states may impose standards that are more stringent or broader in scope
than those in the federal program (see also 40 CFR 271.1(i)).
Therefore, authorized states are not required to adopt new federal
regulations that are considered less stringent than previous federal
regulations or that narrow the scope of the RCRA program. Previously
authorized hazardous waste regulations would continue to apply in those
states that do not adopt ``deregulatory'' rules.
B. Effect on State Authorization of Interim Final Rule
The regulations finalized in this interim final rule are not
promulgated under the authority of HSWA. Thus, the standards will be
applicable on the effective date only in those states that do not have
final authorization of their base RCRA programs. Moreover, authorized
states are required to modify their programs only when EPA promulgates
federal regulations that are more stringent or broader in scope than
the authorized state regulations. For those changes that are less
stringent, states are not required to modify their program. Pursuant to
section 3009 of RCRA, states may impose more stringent regulations than
the federal program. This rule eliminates specific hazardous waste
requirements that would otherwise apply to airbag waste (airbag modules
and airbag inflators) managed under the conditional exemption, and
therefore, these changes are less stringent than the federal program
and authorized states are not required to adopt them. However, if a
state were, through implementation of state waiver authorities or other
state laws, to allow compliance with the provisions of the conditional
exemption in advance of adoption or authorization, EPA would not
generally consider such implementation a concern for purposes of
enforcement or state authorization. Of course, the state could not
implement the requirements in a way that was less stringent than the
federal requirements in this rule.
VIII. Statutory and Executive Order (E.O.) Reviews
A. Executive Order 12866: Regulatory Planning and Review & Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. This rule has
been determined significant because it raises novel legal or policy
issues arising out of a legal mandate, the President's priorities or
the principles set forth in the Executive Order. Any changes made in
response to OMB recommendations have been documented in the docket. The
EPA prepared an economic analysis of the potential costs and benefits
associated with this action. This analysis, ``Economic Assessment of
the Safe Management of Recalled Airbags Rule'',
[[Page 61561]]
is available in the docket. This analysis estimates the impacts of the
rule relative to two separate baseline scenarios. The first baseline
scenario assumes that all aspects of the Preservation Order established
between Takata and the Department of Transportation in February 2015
and amended in April 2018 will remain in effect until the completion of
the recall process. The alternative baseline scenario assumes the
removal of the Preservation Order provisions that allow dealerships to
disregard the volume of recalled airbag inflators when determining
their hazardous waste generator status (e.g., LQG) under RCRA. For each
baseline and for the rule, EPA created a monthly schedule in order to
estimate the number of airbag inflators shipped, accumulated, and
disposed of by affected entities. EPA then assigned unit costs for
storage, transport, management, and disposal of airbag inflators for
each scenario to estimate the cost savings associated with this
regulation. The cost impacts of the rule were then calculated as the
difference between post-rule costs and costs under each baseline
scenario. In summary, this regulatory action is expected to result in a
total cost savings between $7.6 million and $56.9. million for the
duration of the Takata recalls, resulting in an estimated annual cost
savings of $1.7 million to $13.0 million per year (discounted at 7%).
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.
C. Paperwork Reduction Act (PRA)
The information collection activities in this rule have been
granted emergency approval by the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) that has been
approved by OMB was assigned EPA ICR number 2589.02 and OMB Control
Number 2050-0221. You can find a copy of the ICR in the docket for this
rule, and it is briefly summarized here.
The collection of information is necessary in order to ensure that
the hazardous waste airbag modules and airbag inflators exempted under
this rule are safely disposed of and that defective airbag modules and
airbag inflators are not reinserted into vehicles where they would pose
an unreasonable risk of death or serious injury. Information collection
activities include requiring affected entities maintain copies of
shipping records and confirmations of receipt for three years.
In addition to the emergency ICR which will implement the
requirements for up to six months, EPA is also developing an ICR based
on comments received on this rulemaking. Towards this goal, pursuant to
section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and
information to enable it to: (i) Evaluate whether the collection of
information is necessary for the proper performance of the functions of
the Agency, including whether the information will have practical
utility; (ii) evaluate the accuracy of the Agency's estimate of the
burden of the collection of information, including the validity of the
methodology and assumptions used; (iii) enhance the quality, utility,
and clarity of the information to be collected; and (iv) minimize the
burden of the collection of information on those who are to respond,
including through the use of appropriate automated electronic,
mechanical, or other technological collection techniques or other forms
of information technology, e.g., permitting electronic submission of
responses. EPA will consider the comments received and amend the ICR as
appropriate.
Respondents/affected entities: The respondents will primarily be
composed of automobile dealerships. These dealerships fall under NAICS
code 441: Motor Vehicle and Parts Dealers.
Respondent's obligation to respond: The recordkeeping requirements
for the interim final rule consist of maintaining at the airbag handler
for no less than three years records of (1) all off-site shipments and
(2) confirmations of receipt of airbag waste. The recordkeeping
requirements may be fulfilled by ordinary business records, such as
bills of lading, and are intended to allow the Agency to verify that
the airbag waste reaches its intended destination and is not diverted
back into vehicles. The statutory authority to require the
recordkeeping activities derives from sections 2002, 3001, 3002, 3003,
3004, 3006, 3010, and 3017 of the Solid Waste Disposal Act of 1965, as
amended by the Resource Conservation and Recovery Act of 1976 (RCRA),
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
Estimated number of respondents: EPA estimates that there will be
15,256 respondents per year.
Frequency of response: EPA estimates that average facility will
make 3 relevant shipments per year over a 5-year period. The facilities
must retain documentation for each shipment.
Total estimated burden: 4,200 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $130,791 (per year), includes $0 annualized
capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.
D. Regulatory Flexibility Act
This action is not subject to the RFA. The RFA applies only to
rules subject to notice and comment rulemaking requirements under the
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute.
The APA exempts from notice and comment requirements rules for which an
Agency finds ``for good cause'' that notice and an opportunity to
comment are ``impracticable, unnecessary, or contrary to the public
interest.'' The Agency is invoking this exemption to address exigent
public health issues associated with the Takata airbag recalls.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This action does not have substantial direct
effects on one or more Indian tribes, on the relationship
[[Page 61562]]
between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Section 5-502 of Executive Order 13045 provides that in emergency
situations, or where the Agency is required by law to act more quickly
than normal review procedures allow, the Agency shall comply with the
Executive Order to the extent practicable. This action is being issued
under a good cause exemption of notice and comment rulemaking under the
APA to address an emergency situation associated with defective airbag
inflators and risks to public health. The rule will remove potential
regulatory impediments associated with the Takata airbag recalls. The
recalls address explosion risks associated with faulty airbag
deployment which could cause (and have caused) serious harm to
passengers in vehicles, including children.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This rulemaking simply removes
potential regulatory impediments associated with the Takata airbag
recalls; therefore, by itself, this rulemaking will not have any effect
on the supply, distribution or use of energy.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action is not subject to Executive Order
12898 (59 FR 7629, February 16, 1994) because the rule increases
protection of human health and the environment by removing potential
regulatory impediments associated with the Takata airbag recalls while
ensuring safe management and disposal of airbag waste. The recalls
address explosion risks associated with faulty airbag deployment which
could cause (and have caused) serious harm to passengers, including
passengers from minority and low-income communities.
M. Congressional Review Act
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. The CRA allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and comment rulemaking procedures are
impracticable, unnecessary or contrary to the public interest (5 U.S.C.
808(2)). The EPA has made a good cause finding for this rule as
discussed in Section I.B. of this preamble, including the basis for
that finding.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Definitions, Hazardous waste.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Solid waste.
40 CFR Part 262
Environmental protection, Hazardous waste, Generator Standards.
Dated: November 13, 2018.
Andrew Wheeler,
Acting Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
1. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6935,
6937, 6938, 6939 and 6974.
Subpart B--Definitions
0
2. Section 260.10 is amended by adding in alphabetical order
definitions for ``Airbag waste'', ``Airbag waste collection facility'',
and ``Airbag waste handler'' to read as follows:
Sec. 260.10 Definitions
* * * * *
Airbag waste means any hazardous waste airbag modules or hazardous
waste airbag inflators.
Airbag waste collection facility means any facility that receives
airbag waste from airbag handlers subject to regulation under Sec.
261.4(j) of this chapter, and accumulates the waste for more than ten
days.
Airbag waste handler means any person, by site, who generates
airbag waste that is subject to regulation under this chapter.
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
3. The authority citation for Part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
Subpart A--General
0
4. Section 261.4 is amended by adding reserved paragraph (i) and adding
paragraph (j) to read as follows:
Sec. 261.4 Exclusions.
* * * * *
(j) Airbag waste. (1) Airbag waste at the airbag waste handler or
during transport to an airbag waste collection facility or designated
facility is not subject to regulation under parts 262 through 268, part
270, or part 124 of this chapter, and is not subject to the
notification requirements of section 3010 of RCRA provided that:
(i) The airbag waste is accumulated in a quantity of no more than
250 airbag modules or airbag inflators, for no longer than 180 days;
(ii) The airbag waste is packaged in a container designed to
address the risk posed by the airbag waste and labeled ``Airbag Waste-
Do Not Reuse'';
(iii) The airbag waste is sent directly to either:
(A) An airbag waste collection facility in the United States under
the control of a vehicle manufacturer or their authorized
representative, or under the control of an authorized party
administering a remedy program in response to a recall under the
National Highway Traffic Safety Administration, or
(B) A designated facility as defined in 40 CFR 260.10;
(iv) The transport of the airbag waste complies with all applicable
U.S. Department of Transportation regulations in 49 CFR part 171
through 180 during transit;
(v) The airbag waste handler maintains at the handler facility for
no less than three (3) years records of all off-site shipments of
airbag waste and all confirmations of receipt from the receiving
facility. For each shipment, these records must, at a minimum, contain
the name of the transporter and date of the shipment; name and address
of receiving facility; and the type and quantity of airbag waste (i.e.,
airbag modules or airbag inflators) in the shipment. Confirmations of
receipt must include the name and address of the
[[Page 61563]]
receiving facility; the type and quantity of the airbag waste (i.e.,
airbag modules and airbag inflators) received; and the date which it
was received. Shipping records and confirmations of receipt must be
made available for inspection and may be satisfied by routine business
records (e.g., electronic or paper financial records, bills of lading,
copies of DOT shipping papers, or electronic confirmations of receipt).
(2) Once the airbag waste arrives at an airbag waste collection
facility or designated facility, it becomes subject to all applicable
hazardous waste regulations, and the facility receiving airbag waste is
considered the hazardous waste generator for the purposes of the
hazardous waste regulations and must comply with the requirements of 40
CFR part 262.
(3) Reuse in vehicles of defective airbag modules or defective
airbag inflators subject to a recall under the National Highway Traffic
Safety Administration is considered sham recycling and prohibited under
40 CFR 261.2(g).
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
0
5. The authority citation for part 262 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938 and
6939g.
Subpart A--General
0
6. Section 262.14 is amended by revising paragraphs (a) introductory
text and (a)(5) to read as follows:
Sec. 262.14 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 this section, hazardous waste
generated by the very small quantity generator is not subject to the
requirements of parts 124, 262 (except Sec. Sec. 262.10 through
262.14) through 268, and 270 of this chapter, 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:
* * * * *
(5) A very small quantity generator that accumulates hazardous
waste in amounts less than or equal to the limits in paragraphs (a)(3)
and (4) of this section must 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 part 270 of this chapter;
(ii) In interim status under parts 265 and 270 of this chapter;
(iii) Authorized to manage hazardous waste by a state with a
hazardous waste management program approved under part 271 of this
chapter;
(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 part 258 of this chapter;
(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
Sec. Sec. 257.5 through 257.30 of this chapter;
(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 part 273 of this chapter, a
universal waste handler or destination facility subject to the
requirements of part 273 of this chapter;
(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 Sec.
260.10 of this chapter. ``Control,'' for the purposes of this section,
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 Sec. 260.10 of this chapter 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, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard
communication consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling) or subpart F
(placarding); a hazard statement or pictogram consistent with the
Occupational Safety and Health Administration Hazard Communication
Standard at 29 CFR 1910.1200; or a chemical hazard label consistent
with the National Fire Protection Association code 704);
(ix)-(x) [Reserved]
(xi) For airbag waste, an airbag waste collection facility or a
designated facility subject to the requirements of Sec. 261.4(j) of
this chapter.
* * * * *
[FR Doc. 2018-25892 Filed 11-29-18; 8:45 am]
BILLING CODE 6560-50-P