Comment: Proposed 329 IAC 3.1-11.1-3(4) puts a 90-day storage time limit on retailers, wholesalers, manufacturers, and auto salvage yards. This provision is inconsistent with the exemption for generators under 40 CFR 266 Subpart G, which exempts such entities from the 90 day storage requirements of 40 CFR 262. Patchwork requirements at the state level only serve to frustrate collection and recycling efforts. We therefore request that this 90 day requirement be removed or, at the very least, extended to one year (365 days). Three hundred sixty-five days is the maximum storage time allowed for batteries under the Universal Waste Rule (40 CFR Part 273). (BCI)

Response: IDEM has removed auto salvage yards and the ninety (90) day storage time limit from 329 IAC 3.1-11.1-3. This is in recognition of the fact that IC 13-20-16-3 already states that a retailer or wholesaler that accepts a used lead acid battery may not retain possession of the battery for more than 90 days.

Comment: Proposed 329 IAC 3.1-11.1-4(2)(A) requires that large quantity intermediate storage facilities such as warehouses notify the IDEM of the location of storage sites. Proposed 329 IAC 3.1-11.1-4(1)(E) and 3.1-11.1-4(2)(F) also require that small and large quantity intermediate storage facilities have spill response plans maintained on site, respectively.

Response: IDEM believes that 329 IAC 3.1-11-4(2)(A) reflects very basic best management practices and will provide clarity to intermediate storage facilities as to management expectations. We do not believe a simple notification requirement is overly burdensome. Both requirements are consistent with the universal waste rules cited by the commentor. IDEM agrees with BCI comments regarding spill response plans and the requirement for spill response plans has been deleted.

Comment: Proposed 329 IAC 3.1-11.1-5(c) says that trailers of incoming whole spent lead-acid batteries may be staged on an asphalt or concrete surface maintained in "good condition". Again, BCI is concerned that this term is so subjective that it could lead to confusion among the regulated community and IDEM inspectors. BCI recommends that the language be revised to read: ".. trailers of incoming whole spent lead-acid batteries may be stored on asphalt or concrete maintained in good condition. Asphalt and concrete are maintained in good condition by making necessary repairs to cracks or gaps as soon as practicable, taking into account facility operation and shutdown schedules and environmental permit requirements." (BCI)

Response: Current hazardous waste rules and permits do not address "staging" areas as provided for in this proposed rule. A major purpose of this rule is to resolve long standing differences of opinion regarding the regulatory status of staging areas. These requirements (if adopted), will be reflected in future permits where facility specific concerns may be resolved through the permitting process. IDEM is maintaining the draft rule language as is.

Comment: Proposed 329 IAC 3.1-11.1-5(d)(2) requires loading and unloading areas at battery recycling facilities to be inspected daily for spills and deterioration. However, secondary lead smelters are already subject to effective inspection schedules that are set forth in facilities' Part B permits, which the IDEM prepares. BCI therefore recommends that the inspection schedule in 329 IAC 3.1-11.1-5(d)(2) be revised to be consistent with existing Part B permit inspection schedules. Further, BCI believes that the term "deterioration" is too broad and subjective. To address both issues, BCI suggests that 329 IAC 3.1-11.1-5(d)(2) be revised to read: "(2) inspected for spills and significant cracks and gaps on a schedule consistent with the facility's RCRA Part B permit." (BCI)

Response: IDEM believes the cite referenced by BCI in this comment is actually for 329 IAC 3.1-11.1-5(d); rather than limited to (d)(2). IDEM agrees that loading and unloading areas are already regulated by the application of the general facility standards incorporated by reference in 329 IAC 3.1-11.1-5(a). All of 329 IAC 3.1-11.1-5(d) has been deleted.

Comment: Proposed 329 IAC 3.1-11.1-5(e) seeks to regulate the recycling process which is exempt from hazardous waste regulations pursuant to 40 CFR 261.6(c)(1), and should be substantially revised. First, the draft rule defines the term "intermittent storage" as storage that occurs after reclamation has commenced and before it is complete. See proposed 329 IAC. 3.1-11.1-2(f). This is inconsistent with the scope of the recycling exemption in 40 CFR. 261.6(c)(1), which has been interpreted to mean that "the temporary staging of materials during and incidental to the recycling process... is not subject to regulation", and the fact that the recovered battery components "are an integral part of the recycling process [and] are not discarded and thus are exempt from RCRA regulations."(footnote 2: Ind. Dept. Of Environmental Management v. Quemetco, Inc., Cause No. N-113, Modification of the Final Order of the Solid Waste Management Board, Conclusions of Law Numbers 10 and 12 (1991)). Moreover, the draft rule regulates the recycling of spent lead-acid batteries differently from the recycling of other hazardous waste by making "intermittent storage" by battery reclaimers subject to regulation, while "intermittent storage" by other hazardous waste recyclers is not subject to regulation. IDEM has provided no justification for such inconsistent regulation.

Second, the draft rule would require that new lead-acid battery breaking facilities or new secondary lead smelters obtain a containment building permit in accordance with 40 CFR 264 Subpart DD to store partially reclaimed waste in piles. See proposed 329 IAC 3.1-1.1-5(g). However, as indicated above, 40 CFR 261.6(c)(1) exempts the recycling process from regulation and since the "temporary storage and piling are integral parts of the cracking/recycling process, the components are exempt pursuant to 329 IAC 3-3-6(c)(1)" [now 40 C.F.R. 261.6(c)(1)]. (footnote3: See footnote 2). Thus, IDEM is seeking to require that the recycling process which is exempt from the hazardous waste regulation be conducted within a RCRA regulated unit.

IDEM believes these rules are much clearer and less subject to debate than current rules. They will also remove inconsistencies in how our lead acid battery reclaimers have been regulated. Upon adoption, prior interpretations of the old rules will be a moot issue.

Comment: The draft rule should not regulate the recycling process because it is exempt from hazardous waste regulation. The draft rule seeks to regulate the recycling process which is exempt from hazardous waste regulations pursuant to 40 CFR. 261.6(c)(1). First the draft rule defines the term "intermittent storage" as storage that occurs after reclamation has commenced and before it is complete. See Draft 329 IAC 3.1-11.1-2(f). However, the scope of the recycling exemption in 40 CFR 261.6(c)(1) has been interpreted to mean that "the temporary staging of materials during and incidental to the recycling process.... is not subject to regulation" and that the recovered battery components "are an integral part of the recycling process [and] are not discarded and thus are exempt from RCRA regulations." (footnote 1: Ind. Dept. Of Environmental Management v. Quemetco, Inc., Cause No. N-113, Modification of the Final Order of the Solid Waste Management Board, Conclusions of Law Numbers 10 and 12 (1991)). Moreover, the draft rule regulates the recycling of spent lead acid battery differently from the recycling of other hazardous waste recyclers is not subject to regulation. IDEM has provided no justification for such differential regulation.

Response: Most of this comment is the same as the BCI comment above and the response is the same. IDEM's approach to "intermittent storage" is the same everywhere. IDEM is not aware of other recycling facilities of regulated recyclable materials being treated differently. The commentor has suggested the draft rule requires a containment building permit for new facilities. The rule language cited actually only requires a permit if an exemption is not granted.

Comment: Standards for Retailers, Wholesalers, Manufacturers and Auto Salvage Yards. 329 IAC 3.1-11.1-3 requires that if batteries are stored in containers, the container must be in good condition and be a covered container. 328 IAC 3.1-11.1-3 should also require that if batteries are shipped in containers, for any reason, then the container must have sufficient structural integrity to contain the spent lead acid batteries during shipment and the container must be a covered container. This requirement would make subsequent handling of the batteries safer. (BT)

Response: IDEM does not have authority to regulate shipping containers. Shipping containers are under the jurisdiction of Indiana Department of Transportation, therefore, IDEM will not add any additional requirements. The draft rule does not prevent lead acid battery handlers to require such containers be used for shipping as a condition of acceptance.

Comment: Requirements Applicable to Reclaimers. The purpose of this rulemaking is to make Indiana's hazardous waste management rules reflect the way reclaimers have historically handled whole spent lead acid batteries by staging them in trailers and subsequently offloading the spend lead acid batteries from the trailers into battery wreckers. This management practice reduces double handling costs. However, IDEM proposes to also impose new and unnecessary requirements on reclaimers. (BT)

Comment: 329 IAC 3.1-11.1-5(c) should be revised in two ways. First, the rule should allow for staging of batteries for up to 14 scheduled operating days. This would provide needed flexibility for different operations when not all equipment operates either all the time or every day. Second, the requirements to inspect trailers from the outside within twenty-four (24) hours should be dropped. While this requirement is safer than what IDEM had previously required having the inspector walk across the top of the batteries inside the trailer, this inspection requirement still poses a safety hazard. Employees would either have to climb up on the back of the trailer to view the batteries or inspect using a step ladder. While this may be a safer to inspect, even if an employee looks into the trainers from the outside, it is doubtful that the employee could see any leaking batteries at the head end of the trainer or to be able to readily tell if a pallet has overturned. Exterior inspection of the trailers for signs there are leaking batteries in the trailer (and taking appropriate action if a leak is discovered) provides sufficient environmental safeguards and reduces the risk of falls associated with inspecting the trailers. (BT)

Comment: Finally, 329 IAC 3.1-11.1-5(d), (e), (f) and (g) imposes requirements which IDEM has never demonstrated are needed and which are contrary to Indiana's hazardous waste rules. Moreover, the requirements are not imposed on any other hazardous waste reclaimers. 329 IAC 3.1-11.1-5(d), (e), (f) and (g) should be deleted. (BT)

Response: IDEM disagrees. Singling out spent lead acid batteries for specific regulation was initiated by the US EPA. Every item in the draft rule contained in this notice is in response to past concerns with battery reclaimers, enforcement issues, and the clarity of current rules, all of which have been encountered during the last twenty-nine (29) years of inspections and enforcement experiences with lead acid battery handlers.

Comment: Standards for intermediate storage. IDEM has not demonstrated that there is a need for the requirements set out in 329 IAC 3.1-11.1-3. This rule imposes requirements that are not imposed on entities handling batteries under the Universal Waste Rule. If IDEM wishes to identify the locations where intermediate storage is being conducted, it could require notification by those entities conducting intermediate storage. IDEM has not demonstrated an environmental basis for the requirements in 329 IAC 3.1-11.1-3 and it should be deleted. (BT)

Response: IDEM believes BT is referring to 329 IAC 3.1-11.1-4 which are the standards for intermediate storage facilities. As indicated in the response to BCI's similar comment above, IDEM has removed the spill response plan requirement making it consistent with the Universal Waste rules cited. The rule does require notification for large quantity intermediate storage facilities section (2)(A) also consistent with the universal waste rules.

Response: IDEM disagrees that the agency is limited in this rulemaking by the scope of existing rules. The commentor is confusing "intermediate storage facilities" regulated in section 4 of the draft rule with "intermittent storage" which is addressed in the standards for reclaimers in section 5 of the draft rule. 329 IAC 3.1-11.1-7 was added to clarify that if contamination at the unpermitted intermittent storage areas units cannot be removed the department will address the matter in accordance with the department's risk integrated system of closure (RISC). All intermittent storage areas at existing facilities are either subject to the standards for existing facilities in section 5(e), corrective action, or subject to existing variances.

IDEM has removed the reference to 329 IAC 3.1-11-2(3). That section of the rule is no longer necessary, as those requirements are now at section 5(a) of this rule.

(A) 264.141 means 329 IAC 3.1-15-2.

(B) 264.142 means 329 IAC 3.1-15-3.

(C) 264.143 means 329 IAC 3.1-15-4.

(D) 264.147 through 264.151 means 329 IAC 3.1-15-8 through 329 IAC 3.1-15-10.

(A) Notification requirements under Section 3010 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6901 et seq.

(B) All applicable provisions in the following subparts of 40 CFR 264:

(C) All applicable provisions in the following subparts of 40 CFR 265:

(D) All applicable provisions in 40 CFR 270 and 40 CFR 124"." insert 329 IAC 3.1-11.1.

(A) building with a roof; or

(B) covered container that is:

(A) in good condition; and

(B) chemically compatible with the contents of the battery.

(A) a secondary lead smelter authorized by the department;

(B) an intermediate storage location with the intent to deliver to a secondary lead smelter authorized by the department; or

(A) If the lead acid battery is not in good condition or begins to leak, the owner or operator must transfer the battery to a container that is:

(B) Batteries must be stored upright and secured to prevent overturning.

(C) Batteries must be stored in a building with a roof or stored in a covered container that is:

(D) Batteries may not be stored for more than three hundred sixty-five (365) consecutive days.

(E) Any spilled waste and contaminated equipment must be disposed or recycled in accordance with applicable solid waste rules at 329 IAC 10 and 329 IAC 11 or hazardous waste rules in this article.

(A) The storage facility owner or operator must notify the commissioner of the location of the storage site.

(B) If the lead acid battery is not in good condition or begins to leak, the owner or operator must transfer the battery to a container that is:

(C) Batteries must be stored upright and secured to prevent overturning.

(D) Batteries must be stored in a building with a roof or stored in a covered container that is:

(E) Batteries may not be stored for more than three hundred sixty-five (365) consecutive days.

(F) Any spilled waste and contaminated equipment must be disposed or recycled in accordance with applicable solid waste rules at 329 IAC 10 and 329 IAC 11 or hazardous waste rules in this article.

(A) Subpart A through Subpart B, excluding 40 CFR 264.13.

(B) Subpart C through Subpart E, excluding 40 CFR 264.71 and 40 CFR 264.72.

(C) Subpart F through Subpart L.

(A) in good condition; and

(B) chemically compatible with the contents of the battery.

(A) stored in a container meeting the applicable requirements of 40 CFR 264, Subpart I; or

(B) stored on a base that is chemically compatible with the waste, and constructed of sufficient strength and thickness to support the weight of the waste and any personnel and heavy equipment operating on the base.

(A) sent to an on-site wastewater treatment facility; or

(B) managed in accordance with all applicable hazardous waste rules.