




Hazardous Waste Generator Improvements Final Rule
Response to Comments Document
Summaries and Responses

US EPA
October 4, 2016
Docket # EPA-HQ-RCRA-2012-0121
















Note: This Response to Comments Document contains the Agency's summaries of the comments received on various topics related to the rulemaking and the Agency's responses to those comments. After each comment summary is a code linking the summary to the final digits of the RCRA Docket number for the individual comment numbers linked to that summary. Many of the comments submitted for this rulemaking are addressed in multiple sections of the Response to Comments.

The comments on the rulemaking are organized according to the following outline. Some sections of the outline do not contain any comments. 

Section 1 - 1. General Comments
Section 2 - 2. Revisions to Existing Part 260
Section 2.1 - Defining VSQG, SQG, and LQG/ Renaming CESQG to VSQG
Section 2.2 - Defining Acute and Non-acute hazardous waste 
Section 2.3 - Defining Central accumulation area
Section 2.4 - Miscellaneous part 260 comments
Section 3 - 3. Revisions to Existing Part 261
Section 3.1 - Generating acute and non-acute HW in same month
Section 3.2 - Mixing hazardous waste and nonhazardous waste
Section 3.2.1 - VSQGs mixing
Section 3.2.2 - SQGs and LQGs mixing
Section 3.3 - VSQG Consolidation at an LQG
Section 3.3.1 - Need for consolidation provision
Section 3.3.2 - Scope of consolidation SQGs
Section 3.3.3 - Scope of consolidation: under the control of the same person
Section 3.3.4 - Conditions for VSQG
Section 3.3.5 - Conditions for LQGs
Section 3.3.6 - Biennial reporting for consolidation
Section 3.3.7 - No limit on waste received from VSQGs
Section 3.3.8 - Enforceability of consolidation provision
Section 3.3.9 - Interstate shipments
Section 3.4 - Biennial report for recyclers who do not store
Section 3.5 - Miscellaneous part 261 comments
Section 4 - Revisions to Existing Part 262
Section 4.1 - Revisions to Purpose, Scope, and Applicability (262.1 and 262.10)
Section 4.1.1 - Defining and listing independent requirements and conditions of exemption
Section 4.1.2 - Deletion of 262.10(c)
Section 4.1.3 - Enforceability under section 3008 if not meeting requirements
Section 4.1.4 - Deletion of Labs XL
Section 4.1.5 - Generators shall not transport to non-designated facility
Section 4.1.6 - Other
Section 4.2 - Waste Determinations
Section 4.2.1 - Existing regulations/need for revisions
Section 4.2.2 - Determinations at point of generation
Section 4.2.3 - Revisions for identifying listed hazardous waste
Section 4.2.4 - Revisions for identifying characteristic hazardous waste
Section 4.2.4.1 - Testing
Section 4.2.4.2 - Generator knowledge
Section 4.2.4.3 - Other
Section 4.2.5 - Maintaining records for all hazardous waste determinations
Section 4.2.5.1 - Scope of requirement
Section 4.2.5.2 - Burden
Section 4.2.5.3 - Waste streams per generator
Section 4.2.5.4 - Alternate solutions
Section 4.2.5.5 - "Accurate" waste determinations
Section 4.2.5.6 - Maintaining hazardous waste determination records until generator closes
Section 4.2.5.7 - Hazardous waste determination electronic decision tool
Section 4.2.5.8 - Other
Section 4.3 - Re-notification
Section 4.3.1 - Need for revisions
Section 4.3.2 - Re-notification every two years
Section 4.3.2.1 - Re-notification interval
Section 4.3.2.2 - Re-notification date
Section 4.3.2.3 - Rolling re-notifications
Section 4.3.2.4 - Re-notification in the event of a change
Section 4.3.3 - Other
Section 4.4 - Determining generator category using 262.13
Section 4.5 - Documentation of waste accumulation unit inspections
Section 4.5.1 - Container inspections (SQGs & LQGs)
Section 4.5.2 - Tank inspections (SQGs)
Section 4.5.3 - Drip pad inspections (SQGs)
Section 4.5.4 - Other
Section 4.6 - Closure requirements
Section 4.6.1 - Consolidation of closure requirements in 262
Section 4.6.2 - LQGs accumulating in tanks
Section 4.6.3 - Notification of closure by LQGs
Section 4.6.4 - Certification of clean closure by LQGs
Section 4.6.5 - Notification of closure by SQGs
Section 4.6.6 - Other
Section 4.7 - Preparedness and planning
Section 4.7.1 - Scope of RCRA preparedness and planning regulations
Section 4.7.2 - Adding LEPCs to regulations
Section 4.7.3 - Making arrangements with LEPCs
Section 4.7.4 - Documenting arrangements with LEPCs
Section 4.7.5 - Large facilities with internal emergency teams
Section 4.7.6 - Contingency plans
Section 4.7.6.1 - Contingency plan executive summary
Section 4.7.6.1.1 - Scope of contingency plan executive summary
Section 4.7.6.1.2 - Elements of contingency plan executive summary
Section 4.7.6.1.3 - Including NAERG reference in element 1
Section 4.7.6.1.4 - Including medical information in element 3
Section 4.7.6.1.5 - Other
Section 4.7.6.2 - Eliminating personal information from contingency plans
Section 4.7.6.3 - Alternate evacuation routes in contingency plans
Section 4.7.6.4 - Electronic RCRA contingency plan app
Section 4.7.7 - Safe location of emergency equipment
Section 4.7.8 - Meaning of "immediate access"
Section 4.7.9 - Posting information by telephone (SQGs)
Section 4.7.10 - Cleanup by a contractor (SQGs)
Section 4.7.11 - Online computer training (LQGs)
Section 4.7.12 - Scope of applicability of training requirement (LQGs)
Section 4.7.13 - Applying preparedness/planning revisions to 264 & 265
Section 4.7.14 - Other
Section 4.8 - Satellite accumulation areas
Section 4.8.1 - Incompatible waste requirements
Section 4.8.2 - Exceptions to closed containers
Section 4.8.3 - "Three Days"
Section 4.8.4 - One quart or 1kg of acute hazardous waste
Section 4.8.5 - Revisions for when maximum weight or volume are exceeded
Section 4.8.6 - Rescinding reactive hazardous waste memo
Section 4.8.7 - "Under the control of the operator"
Section 4.8.8 - Other
Section 4.9 - SQGs accumulating in drip pads or containment buildings
Section 4.9.1 - SQGs comply with technical standards for unit but otherwise SQGs
Section 4.9.2 - 90-day limit applies to accumulation in drip pad or containment building
Section 4.9.3 - Procedures for documenting 90-day limit
Section 4.9.4 - Other
Section 4.10 - Deletion of Performance Track Regulations
Section 4.11 - Biennial Reporting
Section 4.11.1 - Biennial reporting is just for LQGs
Section 4.11.2 - Reporting all hazardous waste for the year (not just LQG months)
Section 4.11.3 - Reporting all hazardous waste generated (not just shipped off site)
Section 4.11.4 - Revise regulations to refer to BR instructions
Section 4.11.5 - Other
Section 4.12 - Prohibition against landfilling liquids
Section 4.13 - CESQG regulations-general
Section 4.14 - Extending labs accumulation time limit
Section 5 - Marking and labeling throughout the proposed rule
Section 5.1 - Marking and labeling containers
Section 5.1.1 - Labeling containers with RCRA waste code prior to shipment
Section 5.1.2 - Labelling containers with "Hazardous Waste" and other words to identify the contents
Section 5.1.3 - Labelling containers with an indication of the hazards of the contents
Section 5.1.4 - Other
Section 5.2 - Marking and labeling tanks, drip pads, containment buildings
Section 5.2.1 - Requiring accumulation start date in logs or records for tanks
Section 5.2.2 - Requiring contents of a tank and hazards in logs or records for tanks
Section 5.2.3 - Suggestions for alternative methods/standards
Section 5.2.4 - Other
Section 5.3 - Specific handler concerns
Section 6 - Episodic Generation
Section 6.1 - Need for provision
Section 6.2 - One event per year
Section 6.3 - Petition process for second event
Section 6.4 - Notification
Section 6.4.1 - Notify 30 days before planned event
Section 6.4.2 - Notify as soon as possible for unplanned event
Section 6.4.3 - VSQG must notify fire department
Section 6.4.4 - Other
Section 6.5 - VSQGs must get EPA ID#
Section 6.6 - Accumulation standards for VSQGs
Section 6.7 - VSQG must manifest and send to a RCRA TSDF
Section 6.8 - Accumulation standards for SQGs
Section 6.9 - 45-day limit for event
Section 6.10 - Petition process for extension of event
Section 6.11 - Recordkeeping for episodic event
Section 6.12 - Use of drip pads or containment buildings
Section 6.13 - Additional conditions
Section 6.14 - Other
Section 7 - 7. Revisions to existing parts 264 and 265
Section 7.1 - 50-foot waiver for LQGs
Section 7.1.1 - Does waiver provide sufficient protection
Section 7.1.2 - Are fire departments appropriate for evaluating waivers
Section 7.1.3 - Revising to include language from 265.17(a)
Section 7.1.4 - Adding a waiver provision for part 264 and part 265 facilities
Section 7.1.5 - Other
Section 8 - Reorganization of regulations
Section 8.1 - Need for reorganization
Section 8.2 - Areas that work well (support)
Section 8.3 - Areas that do not work well (oppose)
Section 8.4 - Errors/oversights in proposed regulations
Section 8.5 - Helpful outreach and/or guidance post-final rule
Section 8.6 - Other
Section 9 - Technical corrections and conforming changes
Section 9.1 - Change is unnecessary
Section 9.2 - Errors
Section 9.3 - Oversights
Section 9.4 - Other
Section 10 - Electronic tools for streamlining reporting and recordkeeping
Section 10.1 - What reports and data should have electronic reporting
Section 10.2 - Priorities for electronic reporting
Section 10.3 - Third-party electronic reporting vendors
Section 10.4 - State experiences with electronic reporting
Section 10.5 - Other
Section 11 - Statutory and Executive Order Reviews
Section 11.1 - Executive Order 12886 (RIA)
Section 11.2 - Paperwork Reduction Act
Section 11.3 - Regulatory Flexibility Act
Section 11.4 - Unfunded Mandates Reform Act
Section 11.5 - EO 13132: Federalism
Section 11.6 - EO 13175: Consultation with Tribal Governments
Section 11.7 - EO 13045: Children's Health
Section 11.8 - EO 13211: Energy Supply
Section 11.9 - National Technology Transfer and Advancement Act
Section 11.10 - EO 12898: Environmental Justice
Section 12 - Miscellaneous
Section 12.1 - Subpart K
Section 12.2 - Retail
Section 13 - Out of Scope






































Section 1 - 1. General Comments


Comment: Some commenters requested a comment period extension (Commenter Nos. 53, 54, 55, 57, 61, 62, 64, 65, 66, 80, 84, 148, and 224).
Response: EPA has already responded to these requests and provided an additional 30 days to the public comment period, thereby extending it to December 24, 2015. Please see the comment period extension in the docket folder (EPA-HQ-RCRA-2012-0121-0067). EPA believed that extending the public comment period beyond the additional 30 days was not necessary. 
Comment: Several commenters stated that, while they may disagree with certain sections of the proposed rule, they generally support the rule as a whole (Commenter Nos. 76, 88, 98, 99, 108, 113, 121, 126, 128, 131, 134, 138, 145, 149, 160, 185, 187, 188, 192, 219, 223, 225, 235, 240, 241, 242, 264, and 283).
Response: EPA thanks the commenters for their support and we believe this rule provides greater protection of human health and the environment by promoting the sound management of hazardous waste through revisions to the hazardous waste generator regulations. This rule will make the regulation easier to understand, and provides greater flexibility in how hazardous waste is managed to better fit the business operations of today's marketplace. We believe this final rule directly responds to feedback from our regulated community, states, communities, and other stakeholders and represents a significant investment in evaluating and addressing the challenges in the hazardous waste program.
Comment: Several commenters stated that the proposed regulations are too difficult to comply with and add a substantial burden to their industry with little environmental benefit (Commenter Nos. 89, 128, 131, 151, 159, 161, 164, 168, 188, 191, 192, 193, 194, 197, 200, 212, 227, 233, 260, 262, and 263).
Response: EPA understands the commenters concerns after reviewing and analyzing their comments. However, we have made several modifications and clarifications in the final rule that address many of the concerns brought up by the commenters. Overall, the Agency believes that this rule makes the regulations more user friendly and provides a greater flexibility for hazardous waste generators to manage their hazardous waste in a cost-effective and protective manner.
Comment: Two commenters felt that there would be significant detrimental impact on the healthcare industry if the pharmaceutical rule is not finalized with the generator rule (Commenter Nos. 127 and 168)
Response: EPA disagrees with the commenters because the pharms rule will only address a subset of the hazardous wastes that health care facilities generate. Even after the pharms rule is promulgated and effective, some healthcare facilities will remain SQGs and LQGs due to their non-pharm hazardous waste. These facilities will have to learn the new generator rule regardless. Furthermore, most of the generator final rule provisions are clarifications where EPA is putting existing policy and guidance into the regulations. Operationally the healthcare facilities should be in compliance with the generator regulations today. There are only a few operational changes they would need to make with the final generator rule - some of which they may already be doing as best management practices. Overall, the Agency believes that delaying the generator rule for the pharms rule will not be a significant detrimental impact and will only delay the generators rule's potential benefits. 
Comment: A commenter felt EPA posed several questions in the preamble of the proposed rule with no regulation language making it difficult to provide a substantial comment. The commenter requested an interim step before the rule is finalized to evaluate changes in the regulation text (Commenter No. 286).
Response: EPA understands the commenter's concern. However, it would be difficult and confusing to create regulatory language for every situation where we requested comment. Furthermore, we have received substantial feedback from numerous stakeholders during the public comment period and we believe the concerns of the stokeholds were sufficiently conveyed to us and an interim step before the rule is finalized is not needed. 

Section 2 - 2. Revisions to Existing Part 260
 No comments are associated with this issue.
 
Section 2.1 - Defining VSQG, SQG, and LQG/ Renaming VSQG to CESQG


Definitions of Generator Categories
(a) Comment: Many commenters supported the inclusion of definitions of the generator categories in the regulations. (0093, 0113, 0131, 0134, 0145, 0159, 0178, 0206, 0217, 0219, 0223, 0232, 0243) Commenters stated that the definitions would improve the regulations by clarifying the categories already used in practice; by making it easier for smaller generators in particular to understand what generator category they are in. (0113, 0127, 0131, 0134, 0145, 0159, 0178, 0219, 0243) One state that has had definitions in the regulations for over 20 years found decreased confusion after adding them. (0232)
(a) Response: EPA agrees with the commenters who supported the inclusion of the definitions of the generator categories in the regulations and is finalizing these definitions as proposed. 
(b) Comment: Some commenters stated that they are concerned that accumulation limits for VSQGs and SQGs are not addressed in the generator category definitions. (0178, 0195, 0223, 0224) One commenter stated that not including them will lead to confusion because not meeting the accumulation limits can lead to having to manage material in a different generator category. (0224) Some commenters stated that this omission may have enforcement implications in the states. (0178, 0214) One commenter suggested that the language be revised to make it clear that the implications of exceeding the limit would be to make the generator subject to regulation as an LQG. (0178) Another commenter stated that the definitions of the generator categories leave the question of how a violation of the accumulation limits for VSQGs and SQGs is to be treated unresolved and asked if an SQG with an extension for accumulation to 270 days could accumulate more than 6,000 kg on site. Is the generator subject to LQG requirements if it exceeds the accumulation limit and is there a distinction between that and becoming an LQG? (0082, 0217) 
One commenter stated that the generation limits in the generator definitions should also act as accumulation limits to assure more adequate environmental protection, which would be consistent with EPA's stated position that risks increase with the amount of waste stored on site. For example, if a generator stored more than 100 kilograms of hazardous waste, it would be a small quantity generator. (0223)
(b) Response: EPA is making some changes in the final rule as a result of these comments that showed that there is confusion about how the accumulation limits for VSQGs operate. EPA maintains that although the accumulation limits are related to the generator definitions, particularly for SQGs, the accumulation limits are not part of the definition of a generator's category, but instead have operated as a separate provision. For SQGs, the accumulation limit has always been a condition for the exemption from permitting and certain other hazardous waste regulations, meaning that if the limit is violated, the generator is no longer exempt from these regulations. 
The generator category is, as is stated in the statute, based on the amount of waste generated "during a calendar month."[12] An SQG is limited to generating less than 1,000 kg of hazardous waste per month and to shipping that waste off site within 180 days of generation. Therefore, an SQG cannot accumulate more than 6,000 kg of hazardous waste without either generating more than 1,000 kg in one of the past six months (which would make it an LQG) or accumulating its waste beyond the 180-day limit. In this situation, the SQG can choose to become an LQG and manage the hazardous waste as an LQG. Alternatively, the SQG will lose its exemption from regulation as a storage facility and be subject to the requirements in parts 264-268, part 270, and the notification requirements at section 3010 of RCRA. (Note: some SQGs have a 270-day limit if they must ship longer distances to a RCRA-designated facility) 
If a VSQG exceeds the accumulation limit, the exemption can be maintained if the waste is managed under the more extensive conditions for exemption of a larger generator category, but the VSQG does not itself have to become an SQG or LQG. To maintain the exemption, VSQGs that accumulate more than 1,000 kg of non-acute hazardous waste must manage the waste under the conditions for exemption for SQGs, and VSQGs that accumulate more than 1 kg of acute waste or 100 kilograms of any residue from the cleanup of a spill of acute hazardous waste must manage the waste under the conditions for exemption of an LQG. 
EPA based the language in the final rule on accumulation limits for VSQGs on the previous regulations in § 261.5(f)(2) and (g)(2), which state the same principle. 
Finally, EPA does not agree with the commenter who suggested that the accumulation limits for generators match the limits on generation of hazardous waste per month. EPA maintains that the standards for management of hazardous waste at SQGs are protective for the time periods those generators may manage hazardous waste. In addition, the accumulation time limit of 180 days for SQGs (with some exceptions, as laid out in the regulations) is designed to allow for more efficient shipments of hazardous waste to TSDFs, which could be located at a great distance from the generator. Decreasing the accumulation limits to these much lower levels would render the time limit moot in many cases without an expected benefit to human health and the environment. 
Regarding applying this requirement to VSQGs, EPA does not believe it is necessary to limit accumulation at VSQG generation limit levels in order to protect human health and the environment. The current limits already restrict these generators of very small amounts of hazardous waste from stockpiling large amounts of waste at their generator facilities without further management restrictions but are not overly burdensome to this category of small generators. 
(c) Comment: Some commenters stated that they believed that the inclusion of the word "and" between the types of hazardous waste generated in the definitions of VSQG and SQG was a mistake and would mean that the generator would have to generate all three types of hazardous waste in order to qualify for that category. (0113, 0131, 0207, 0217, 0219)
(c) Response: EPA disagrees with the commenters and notes that zero kilograms of acute hazardous waste would qualify as "less than or equal to 1 kilogram" and zero kilograms of residue from a spill would qualify as "less than or equal to 100 kilograms." If these "and"s were changed to "or"s, then a generator could, for instance, qualify as a VSQG just by having less than 1 kilogram of acute hazardous waste regardless of how much non-acute hazardous waste or residues it had generated. This would be an extreme change from the current standard for determining generator category and is not consistent with the current generator program. 
(d) Comment: Two commenters suggested that EPA change the range of generated waste for SQGs to "greater than 100 kg but less than or equal to 1000 kg," because that would be consistent with the "less than or equal to" language for VSQGs and therefore easier to remember. (0131, 0219)
Commenters suggested that the phrases "less than," "greater than," and "no greater than" in the generator definitions be replaced with the appropriate mathematical symbols to be less cumbersome and that the descriptive category names be replaced with "Tier 1," "Tier 2," and "Tier 3.". (0099, 0173)
One commenter stated that generator categories should be based on pounds of hazardous waste generated, not kilograms. (0217)
(d) Response: EPA is not making changes to the regulations in response to these comments. All these revisions would require administrative changes throughout the hazardous waste generator system without substantially improving the clarity of the program. Although EPA understands that the quantity limits in the regulations for SQGs are not exactly parallel to the other generator categories, EPA sees little or no benefit in making a change that shifts the generator category by a single kilogram of hazardous waste or a revision of the units of measurement in the regulations. In addition, EPA believes that the meaning of "greater than" and "less than" is clear without the use of the arithmetic symbols and that basing the generator categories on kilograms and including the corresponding weight in pounds is also clear. 
(e) Comment: One commenter argued that the "look back" nature of EPA's generator category regulations presents significant difficulty for retailers. The commenter argued that it is impossible for a retailer to predict what the monthly rate of generation will be until the month has passed because a product recall or a damaged pallet could move a CESQG into the SQG or LQG category unexpectedly. This conundrum forces many retailers, including Walmart, to design and operate SQG or LQG RCRA programs due to the infrequent possibility of generating more than CESQG or SQG amounts of hazardous waste. In contrast, it is a relatively easy task for a retailer to know, through knowledge of its business, on average what its monthly waste generation will be. (0233)
(e) Response: The RCRA statute states that small quantity generator regulations apply to " hazardous waste generated by a generator in a total quantity of hazardous waste greater than one hundred kilograms but less than one thousand kilograms during a calendar month." EPA interprets the language of the RCRA statute to mean that a generator's category is based on the amount of waste it generates in a calendar month and does not allow for a regulatory structure in which the category is based on a monthly average or a prediction of monthly generation rates, such as those the commenter suggests. In addition, EPA believes that the implementation and enforcement implications of such a regulatory structure would make it very difficult to implement by EPA and the states. EPA is examining other areas of the regulations and generator program where it can address the concerns of the retail sector in complying with the RCRA regulations. 
(f) Comment: One commenter stated that EPA's guidance RO 11288 was in fact correcting an oversight of the March 24, 1986 FR, the omission in 262.34 of similar language stating that when an SQG generates more than 1 kg /mo of acute hazardous waste, only "that acute" hazardous waste becomes subject to LQG requirements and not also the non-acute hazardous waste being generated. As an alternative to its proposal, EPA may wish to finalize this correction in the regulations and keep the definitions as they are. (0265) 
(f) Response: EPA considered the options available for correcting the differing guidance in this area of the regulations prior to the proposed rule and determined that it makes the most sense that a generator is in only one generator category in any given month, rather than being in one category for one kind of hazardous waste and another category for a different kind of hazardous waste, necessitating both generator and regulating entity to make sure that the generator's hazardous waste is in compliance with the two different sets of standards. EPA is finalizing this approach in the final rule rather than finalizing the approach in the memo the commenter cites. 
(g) Comment: One commenter stated that the discussion of the definitions of the generator categories should clarify that the 1 kg limit does not include hazardous wastes that fall into the categories of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill onto land or water of any acute hazardous waste. Without the clarification, materials meeting the latter category could also fall into the former, effectively lowering the limit for cleanup waste to 1 kg. (0265) 
(g) Response: EPA believes that it is clear that there is a distinction between acute listed hazardous wastes as described by the listings in the regulations and the debris from a clean of a spill by nature of the categories being distinct in the definitions of generator categories and in Table 1 for section 262.13 and has not made revisions to the language for these categories. 
(h) Comment: One commenter stated that the VSQG, SQG, and LQG proposed definitions should clarify that the 1 kg per month criterion - the second criterion for all three definitions - does not include hazardous waste falling into the third criterion of "any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill into or on any land or water of any acute hazardous waste." This is needed because wastes meeting the third criterion would otherwise meet the second criterion, effectively lowering the third criterion's threshold from 100 kg to 1 kg. (0279)
(h) Response: EPA is not making a revision to the definitions as suggested by the commenter. EPA believes that the regulations are clear on what the distinction is between an acute hazardous waste, which is defined with some specificity, and what is soil, water, or debris contaminated from a spill of acute hazardous waste. 

CESQG to VSQG
(a) Comment: Many commenters stated that they support the proposal to change the name of the category of the smallest generators from conditionally exempt small quantity generators to very small quantity generators. (0076, 0082, 0085, 0099, 0113, 0131, 0134, 0139, 0154, 0165, 0178, 0185, 0189, 0192, 0206, 0208, 0219, 0223, 0232, 0240, 0242, 0248, 0249, 0253, 0256, 0284) Commenters stated the following reasons for their support: the proposed name is more straightforward and easier to understand; the change would reduce the impression that the VSQGs are exempt from any generator responsibility; and the change aligns the federal regulations with those of states that have already changed the name of this category of generators. (0082, 0099, 0113, 0131, 0134, 0139, 0154, 0178, 0185, 0192, 0206, 0208, 0219, 0240, 0242, 0248, 0249, 0253) A state that has made this change in its regulations has found that it led to lower levels of generator confusion and better understanding of the regulations. (0232)
(a) Response: EPA agrees with the commenters and is finalizing this revision to the generator regulations. 
(b) Comment: One commenter stated that they support changing the term CESQG but suggested an alternative revision that changes CESQG to "small quantity generator" and changes the current small quantity generator to "medium quantity generator" like the State of Washington, because it argues that scheme is more logical. (0123) 
(b) Response: EPA has determined that it will be clearest for most stakeholders to retain the terms "small quantity generator" and "large quantity generator" as they are most commonly used today in reference to the federal regulations. In addition, the term "small quantity generator" is used in the RCRA statute for those generators generating between 100 kg and 1000 kg of hazardous waste in a calendar month. Therefore, EPA is finalizing the change from "conditionally exempt small quantity generator" to "very small quantity generator" as proposed. 
(c) Comment: Some commenters stated that they oppose EPA's proposal to change the name of the category of the smallest generators from conditionally exempt small quantity generator to very small quantity generator. (0093, 0116, 0145, 0149, 0163, 0190, 0217) Commenters stated the following reasons for their opposition to this proposal: the name has a meaning that indicates that the wastes from the sites are exempt if certain conditions are met and changing it would limit overall flexibility of the RCRA regulations as applied at these sites; the regulated community is already familiar with "CESQG"; the change will require considerable work from state hazardous waste programs to modify their materials, forms, and guidance documents, and the change is merely semantic. (0093, 0116, 0145, 0149, 0163, 0190, 0217, 0235)
(c) Response: EPA disagrees with the commenters and is finalizing this revision as proposed. The commenters state that the words "conditionally exempt" are an important part of the generator categories name. EPA agrees that these generators are conditionally exempt, but notes that the other categories of generators are also conditionally exempt from permitting requirements, which makes the term "CESQG" confusing when used in the context of the other generator categories. In addition, EPA acknowledges these challenges in making the change to "VSQG," but has determined that the benefits of using a term that matches the general understanding of what it describes more closely make the change worthwhile. EPA will be doing training and guidance on the final Generator Improvements Rule with stakeholders nationwide after the rule is finalized and will also release guidance on necessary changes to any documents that refer to citations in the federal generator regulations. 
(d) Comment: One commenter noted two challenges of this proposed revision without taking a position on the change: that the revision will require changes to state program regulations and print and web documents and that the change may be easier for new entrants to the RCRA regulations to understand but may confuse those already familiar with the regulations. (0125)
(d) Response: EPA acknowledges these challenges in making the change to "VSQG," but has determined that the benefits of using a term that matches the general understanding of what it describes more closely make the change worthwhile. EPA will be doing training and guidance on the final Generator Improvements Rule with stakeholders nationwide after the rule is finalized and will also release guidance on necessary changes to any documents that refer to citations in the federal generator regulations. 

Section 2.2 - Defining Acute and Non-acute hazardous waste


(a) Comment: Some commenters supported the proposed addition of "acute hazardous waste" to the definitions. (0085, 0099, 0101, 0104, 0131, 0178, 0219) 
Some commenters stated that they support defining both the terms "acute hazardous waste" and "non-acute hazardous waste." (0134, 0145) The commenter argued that the definitions will allow for better waste characterization for generators. (0134)
Several commenters stated that defining "acute hazardous waste" makes sense but there is no need to define "non-acute hazardous waste" and that it would cause further confusion due to the use of the term "hazardous waste" in other parts of the RCRA regulations. (0099, 0101, 0104, 0105, 0154) 
(a) Response: EPA is adding definitions to § 260.10 for the terms "acute hazardous waste" and "non-acute hazardous waste" as proposed. EPA has determined that defining the terms is necessary because they are used in the definitions of the generator categories and because they have specific meanings within the hazardous waste generator program. The term acute hazardous waste is used for hazardous wastes that are particularly dangerous to human health and is defined as those hazardous wastes that meet the listing criteria in § 261.11(a)(2) and are therefore listed in § 261.31 and assigned the hazard code of (H) or are listed in § 261.33(e), also known as the RCRA P-list. Although the term non-acute hazardous waste is only used in the context of counting hazardous waste to make a generator category determination, being able to distinguish between acute and non-acute hazardous waste is valuable. In this rulemaking, distinctions between acute and non-acute hazardous wastes are made only in the context of determining generator category. 
(b) Comment: Several commenters suggested that EPA review BR data to determine if the distinction between acute hazardous waste and non-acute hazardous waste has value because the amount of acute hazardous waste is very small relatively and because that change would further simplify the regulations. (0099, 0104, 0230)
(b) Response: EPA is using this rulemaking to add definitions for terms that are in wide use in the generator program and to make existing regulations on how to count hazardous wastes of these varying types to determine generator category. Making changes to the structure of the definitions, such as removing the distinctions between acute and non-acute hazardous waste are not within the scope of this rulemaking. In addition, EPA believes that the distinction is valuable and adds to the protection of human health and the environment and has not reexamined it in this final rule. 
(c) Comment: One commenter stated that the proposed definition of "acute hazardous waste" is misleading regarding acute hazardous wastes that carry an acute waste code because of the mixture or derived from rules but are not acutely toxic. The commenter suggested that EPA revise the definition instead to "hazardous waste that is listed in § 261.31 of this chapter with the assigned hazard code (H), or listed in §261.33(e) of this chapter." (0219) 
(c) Response: The commenter is requesting that EPA remove its reference to the criteria for listing an acute hazardous waste in § 261.11(a)(2) in its definition of "acute hazardous waste." EPA is not making the commenter's requested change. EPA believes that citing the criteria for acute hazardous waste is valuable in defining the term and has determined that including this reference is not misleading regarding wastes that retain their listing due to the mixture or derived from rule. The criteria in 261.11(a)(2) are the reason the material has the acute hazardous waste listing in the first place even if the waste has subsequently been subject to either the mixture or derived from rules, which are a separate parts of the RCRA requirements. 
(d) Comment: One commenter stated that the proposed definition of acute hazardous waste in 260.10 is not consistent with the hazard lettering next to some wastes listed in part 261. The commenter added that, in particular, nitroglycerine is listed as P081 but the "(R)" next to the listing indicates that it is listed for reactivity, not toxicity and that EPA has issued guidance that nitroglycerine medications are not listed hazardous waste unless they are also reactive. (0214)
(d) Response: The definition that EPA proposed and is finalizing for "Acute hazardous waste" is a codification of the explanation of what the term means that was included several times with the use of the term in § 261.5 ("acute hazardous waste listed in 261.31 or 261.33(e)") with an explanation that if the waste is on the F-list in § 261.31, you can tell it is acute hazardous waste by looking for the hazard code (H). EPA does not agree that this definition is inconsistent with the guidance on nitroglycerine medications, since that interpretation is based on that specific use of the ingredient in a medical product and not on P081 Nitroglycerine as a waste in general. 
(e) Comment: One commenter argues that EPA's statement on page 57921 [of the Federal Register notice for the proposed rule] that an SQG generates more than 100 kg per month but less than 1000 kg per month of hazardous waste is incorrect because under the current regulations in 261.5 and 260.10, a VSQG is also an SQG. The new definitions for VSQGs and LQGs remove this existing overlap and thereby meet EPA's goal of not having more than one generator category in a month even when generating acute and non-acute hazardous waste. However, the changes EPA proposes will not completely remove the problem of sometimes having two generator categories at one time because VSQG acute hazardous wastes accumulated above the accumulation limit must be managed at the LQG level. The commenter further argues that the language at 261.5 regarding exceeding the accumulation limits has been widely misinterpreted and actually states that only the quantities of the hazardous waste that exceed the limit become subject to LQG requirements, not all the waste the VSQG generates in that month, meaning that the VSQG remains a VSQG. (0265)
(e) Response: The definitions that EPA is promulgating in the final rule for VSQGs and SQGs are based on the general use and understanding of what "conditionally exempt small quantity generator" has come to mean in the context of the hazardous waste generator program, as well as on updating the existing definition of "small quantity generator." In addition, EPA does not agree that accumulation of VSQG hazardous waste in amounts that exceed the accumulation limit for VSQG (therefore requiring management of hazardous waste as LQG waste) results in the generator having two generator categories. The accumulation limits are not a part of the definition of the generator category and have not been historically. The waste is being managed under LQG standards, but the generator has not become an LQG. EPA retains this structure in the final rule. In addition, EPA disagrees that only the hazardous waste above the accumulation limit becomes subject to LQG requirements and stated so in the preamble to the 1980 generator final rule at 45 FR 76621 (November 19): "The revised regulation also clarifies that once the accumulated amounts exceed 1000 kilograms, all of those wastes and those subsequently added to that accumulation are fully regulated until all the waste is sent to a hazardous waste treatment, storage or disposal facility. This rule means that those wastes remain subject to full regulation even if the quantity of wastes accumulated or stored becomes less than 1000 kilograms." 
(f) Comment: One commenter asked EPA to clarify in the final rule how the quantity of RCRA waste is determined if residues from a spill are added. The commenter stated it would like EPA to confirm in its final action that the amount of waste for purposes of the conditions for exemption is based on the amount of residue from the spill and not the amount of the mixture (i.e., solid waste or other inert non-solid waste in addition to the residues from the spill). The commenter continued by stating that this, in essence, is an exemption from the mixture rule and would also be the basis for making a generator applicability determination. (0240)
(f) Response: EPA does not agree with the commenter's contention that when counting hazardous waste from a spill of acute hazardous waste, it is the amount of acute hazardous waste that spilled that should be counted rather than the amount of debris from the clean-up of the spill. If this were the case, there would be no need to distinguish between the categories of acute hazardous waste and debris from the clean-up of a spill when making a determination about a generator's category. This is not an exemption from the mixture rule and the two types of hazardous waste are two distinct categories and the debris should be counted and considered as described in the final rule at § 262.13. 

Section 2.3 - Defining Central accumulation area


(a) Comment: Some commenters supported the proposed addition of "central accumulation area" to the definitions. (0076, 0082, 0097, 0127, 0131, 0134, 0145, 0154, 0178, 0185, 0217, 0240, 0284) Commenters stated that the term is familiar and used throughout industry and that it will lead to clearer regulations and that having one term would be helpful. (0082, 0127, 0134, 0145, 0154, 0240)
Some commenters supported a definition but objected to either the term proposed or the proposed definition. (0103, 0123, 0131, 0174, 0200, 0217, 0232, 0248) Commenters stated that the term central implies that the wastes have to be centrally managed, but there is no such requirement or limit on the number of CAAs. (0103, 0123, 0131, 0217, 0219, 0232, 0248) Alternative terms suggested by commenters include: "temporary accumulation area," "less-than-90-day area," "accumulation area," "generator accumulation area," "hazardous waste accumulation area," "standard accumulation area," and "hazardous waste consolidation area."(0103, 0123, 0131, 0217, 0219, 0232, 0248) EPA should clarify that a generator can have multiple CAAs at a facility. (0131, 0214, 0219, 0232, 0240, 0248) One commenter suggested replacing "units" in the definition with "containers, tanks, drip pads, or containment buildings" to make it clear that any other accumulation would not qualify as a generator CAA but would be a non-exempt unit. (0174) Some commenters stated that by proposing the term to refer to "any on-site hazardous waste accumulation area" the distinction between CAAs and satellite accumulation areas is lost and EPA should remove the word "any" and should add a reference to § 262.15 for SAAs into the definition. (0200, 0217)
One commenter stated that EPA's statement that the word "central" does not limit a generator to one area and the statement that "the use of the word 'central' does not indicate that the generator must establish the central accumulation area in a location that is centrally located within the site" are contradictory. (0217)
One commenter stated that EPA should clarify in the final rule that the CAA distinguishes where SQGs and LQGs accumulate hazardous waste from where VSQG waste is accumulated or from satellite accumulation areas. (0131, 0219)
Some commenters opposed adding a new term to the regulations. (0123, 0217) The commenters stated that the change would require adding the new term to procedures, training materials, and other documents with no increased protectiveness. (0123)
(a) Response: EPA agrees with the commenters that supported the addition of a definition for this term and is finalizing the definition of "central accumulation area" to mean any on-site hazardous waste accumulation area with hazardous waste accumulating in units subject to either § 262.16 (for small quantity generators) or § 262.17 (for large quantity generators). EPA does not agree with the commenters who supported a definition, but objected to the term proposed or the proposed definition. EPA understands that the term "central accumulation area" is in common usage and has already been promulgated as a part of the Academic Labs rule and is therefore a reasonable choice as a term to replace "90- or 180-day accumulation areas." 
EPA has added discussion in the preamble to emphasize that generators may continue to have more than one CAA on site, as long as all CAAs meet the conditions for accumulation of hazardous waste. We have added further language stating that the use of the word "central" does not denote a physical location or indicate that the generator must establish the CAA in a location that is centrally located within the site. The term "central" is used in the sense that many generators consolidate or centralize their hazardous waste from multiple satellite accumulation areas at a CAA prior to shipment off site. The CAA can be in any location at the generator site as long as it meets the conditions for the accumulation of hazardous waste.
Commenters suggested that EPA should clarify in the final rule that the CAA distinguishes where SQGs and LQGs accumulate hazardous waste from where CESQG waste is accumulated or from satellite accumulation areas. EPA has added the language to the preamble despite determining that the regulatory text makes both these points clear with the use of the word "any" in the definition: "central accumulation area" means any on-site hazardous waste accumulation area with hazardous waste accumulating in units subject to either § 262.16 or § 262.17. In addition, EPA has determined that the references to §§ 262.16 and 262.17 in the definition make it clear that waste being accumulated by a VSQG does not have to be managed in a CAA because those wastes are accumulated under the conditions in § 262.14. Likewise, the reference to §§ 262.16 and 262.17 also prevent hazardous waste in CAAs from alternate units that are not allowed under those paragraphs. 
(b) Comment: Some commenters suggested defining "satellite accumulation area" as well as "central accumulation area." Two commenters proposed defining SAAs to include up to 55 galls of hazardous waste and/or one liter of acute hazardous waste. (0060, 0082, 0097, 0099, 0154, 0178, 0217)
(b) Response: EPA is not finalizing a definition for "satellite accumulation area." Promulgating a definition for "central accumulation area" is a matter of convenience, since it replaces a somewhat unwieldy and unclear turn of phrase: "less than 90- or 180-day accumulation area." EPA believes that the language in §262.15 stating that satellite accumulation area can happen "at or near the point of generation" is more straight forward and does not make a newly defined term necessary. 
(c) Comment: One commenter stated that aggregation of waste from satellite accumulation areas is not the only use of a 90-day accumulation area at a generator. A 90-day accumulation area could be used to accumulate spill materials or generator treatment in storage or tanks. The commenter stated that EPA should consider these uses when promulgating requirements. (0078)
(c) Response: The commenter was not specific about any requested changes to the proposed regulation in its comment. EPA considered all the regulated uses of a central accumulation area in development of this rulemaking. 

Section 2.4 - Miscellaneous part 260 comments
 

(a) Comment: One commenter suggested that EPA update its reference to the NFPA Flammable and Combustible Liquids Code to a version more recent than the currently referenced 1977 and 1981 editions. (0096)
(a) Response: EPA is not updating its reference to the NFPA Flammable and Combustible Liquids Code at this time. 
(b) Comment: One commenter states that although EPA proposed to replace the word "facility " with "site" in some places, it does not define "site" and should. (0217)
(b) Response: EPA is not finalizing this proposed change, and thus this comment is moot. 

Section 3 - 3. Revisions to Existing Part 261
 
Comment: The commenter supported proposed revisions to the regulations at 40 CFR Part 261 for the Identification and Listing of Hazardous wastes. (0240) 
EPA Response: EPA is finalizing the changes to Part 261 mostly as proposed with minor editorial changes. 

Section 3.1 - Generating acute and non-acute HW in same month

Comment: Some commenters stated that they agreed with EPA's proposed revisions to make the regulations more clear regarding the situation when a generator generates acute and non-acute hazardous waste in the same month and that generators should only be in one generator category per month even if generating both types of hazardous waste. One commenter stated that EPA's guidance on this matter has been inconsistent. One commenter stated that this revision could eliminate categorization errors. (0082, 0085, 0108, 0134, 0145, 0174, 0189, 0220, 0223, 0232, 0240, 0243, 0248, 0284)  One state commenter who made this change in their state regulations stated that they observed that this change lowered confusion and misunderstanding among generators. (0232)
Response: EPA agrees with these commenters and is finalizing this provision.  
Comment: One commenter who supported the revisions stated that some generators may see them as more stringent than the current rules because of existing EPA guidance. (0174) 
Response: EPA recognized in its discussion on this revision in the proposed rule that its statements on this issue in guidance have been inconsistent and that some people may be operating under guidance that states that acute hazardous waste can be counted and managed separately from hazardous waste rather than the earlier guidance that stated that if the generator is producing more than 1,000 kg in a month (and therefore managing it as an LQG), any acute waste should be managed in the same way. (80 FR 57927-8) EPA determined that it would be useful to clear up these conflicting interpretive memos and is finalizing the regulations to state that a generator can only be in one category at a time. 
Comment: Some commenters stated that they oppose the proposed revision. (0126, 0159, 0168) Commenters stated that under existing rules, a facility that generates acute and non-acute hazardous waste in different generator categories can adopt both classifications and manage the acute and non-acute hazardous waste under different requirements. Commenters argued that EPA's claim that CESQGs and SQGs that generate more than 1 kg/month of acutely hazardous wastes have nothing to gain from handling their non-acutely hazardous wastes as CESQG or SQG wastes is without foundation. (0168) Commenters stated that the complexity of upgrading an entire facility to LQG status because of the levels of acute hazardous waste being generated is costly and time-consuming and would likely confuse employees, particularly for small facilities and particularly when the facility does not generate large quantities of acutely hazardous waste on a consistent basis. (0126, 0159) One commenter stated that none of EPA's justifications for the change are sufficient. (0168) One commenter stated that this revision would have a significant impact on the retail sector because of the training requirement, since a store may employ hundreds of people, most of whom may handle unsold and returned products at the customer service desk or in the back room, and a significant percentage of whom may not be long-term employees (e.g., seasonal employees). (0168) One commenter argued that when acute and non-acute hazardous wastes are managed under different generator categories, those being managed as SQG waste can be accumulated for 180 days or 270 days before being shipped off site, which is a savings for the generator. (0168) 
Response: EPA recognizes commenters' concerns about disruption to, and burdens on, current operations. However, EPA has determined that if the definitions of the generator categories are going to depend on the amounts of hazardous waste generated, it does not, in the end, make practical sense to have the possibility of a generator that is operating in more than one category. Because the generator categories are defined and the entire structure of the reorganized regulations depends on that generator category, it is more practical and logical that a generator can only have one category at a time. EPA notes that some comments stated that there will be a difference for those generators that have been managing acute hazardous waste in a separate area and only having a RCRA contingency plan for that area, but believes that those generators are LQGs and should be following the independent requirements and conditions for exemption for LQGs for all waste areas. Again, comments from states indicated that they are already interpreting the regulations in this way so EPA does not anticipate that these changes will have a major effect in program implementation. All states commenting on this provision stated they are operating under it already or they support it. Regarding retail stores, the commenter argued that there would be an undue impact on retailers due to the need to train employees who handle returns and materials that may be hazardous waste. However, EPA notes that even though the requirements for LQGs are more prescriptive in the design of a training plan, the regulations for SQGs require that those employees in contact with hazardous waste must be appropriately trained and familiar with proper waste handling and emergency procedures, so the extent of who would have to be trained under this regulation should not be significantly different. 
Comment: One commenter stated that the proposal to account for acute and non-acute waste separately to determine generator status actually makes the regulation more confusing and suggested that it might be time to review the available biennial report data to determine if there is any value in the continued differentiation between acute and other hazardous waste. The commenter argued that acute waste is such a small fraction of the hazardous waste generated that it might be time to truly simplify the RCRA regulation and manage all hazardous waste as one category. (0101) One commenter asked if it would be better to not have the acute waste as a determining factor in generator status and stated that acute waste is normally not a large portion of the total waste generated and is handled the same as all other wastes from a disposal aspect. The commenter also stated that there are many wastes that have acute health hazards that are not a P listed waste and require care in handling but don't count in generator status determination and gave an example of titanium tetrachloride  -  poison inhalation hazard with significant health hazards but is not P listed, Hydrofluoric acid  -  only U listed but is a severe acute health hazard. (0154)
Response: EPA does continue to maintain that it is important and valuable to distinguish between acute and non-acute hazardous waste for the purposes of determining generator category within the generator program and regulations. Although acute hazardous waste may be a small percentage of total hazardous waste, it continues to pose a risk to human health and the environment even when generated in small amounts and, therefore, it is critical that it be managed under LQG standards even when present in smaller amounts than other hazardous wastes. Commenters from states that have already made this revision to their regulations stated that it did decrease confusion about what category a generator is in when it generates both acute and non-acute hazardous waste and EPA has determined that it will similarly decrease programmatic confusion at the federal level. EPA does not consider the existence of wastes that pose an acute risk to human health and the environment but are not P-listed wastes to be a reason to stop differentiating between acute and non-acute hazardous wastes. 
Comment: One commenter stated that except for the discussion on page 57,929 of the proposal, there is no guidance on how the quantity of "residue" or hazardous waste associated with the cleanup of a spill affects a generator's status. The commenter requested additional guidance on the following two questions: If there is less than 100 kg of non-acute hazardous waste and less than 10 kg of acute hazardous waste generated, but over 1000 kg residue from a cleanup that is not hazardous, is the facility an LQG? Does it matter if this is a one-time event? (0240) 
Response:  The definitions of the generator categories that EPA is including in § 260.10 and Table 1 to §262.13 address the first question regarding whether the facility is a LQG. However, knowing merely that there is less than 10 kg of acute hazardous waste is not sufficient. Because the cut off for being an LQG is 1 kg of acute hazardous waste, the generator must determine whether it has generated more or less than one kilogram. Likewise, the question states that there is more than 1000 kg of residue that is not hazardous, but if the residue is from the clean-up of a spill of acute hazardous waste, then it exceeds the limit in the generator definition of LQG. Likewise, the generator must determine how the clean up debris from the spill is to be regulated (e.g., per the contained-in policy or otherwise) and if it is hazardous waste, it should be counted as such for making a generator determination. Regarding the commenter's question about a one-time event, if the generator chooses to operate under part 262 subpart L for episodic events (if the state has picked up the provision), then the generation of hazardous waste under the event does not need to be counted toward generator category. If not operating under subpart L, the generation amounts would apply.  
Comment: One commenter suggested that the proposal to account for acute and non-acute hazardous waste separately makes the regulation more confusing and stated that the following definitions would be simpler: 
LQG 1,000 kg hazardous waste or 1 kg acute hazardous waste or > 100 kg acute hazardous waste cleanup residue.
SQG > 100 kg and < 1,000 kg hazardous waste and < 1 kg acute hazardous waste and < 100 kg acute hazardous waste cleanup residue.
VSQG 100 kg hazardous waste and < 1 kg acute hazardous waste and < 100 kg acute hazardous waste cleanup residue. (0104)
Response: EPA does not agree with the commenter that the definitions it provided would be simpler than those EPA proposed and is finalizing the definitions as proposed. 
Comment: Two commenters stated that on p 57928 1st col EPA states that "many of the regulations for LQGs are site-wide", and gives the examples of "developing a contingency plan" and "conducting training" and argued that this statement is sharply at odds with the later discussion on p 57957 recapping EPA guidance RO 14758, which is referenced in footnote 85. The commenter stated that RO 14758 makes it very clear that both the development of a contingency plan and the conducting of training are not site-wide requirements at all. Because the above statement of p 57928 is clearly incorrect it should be corrected in a subsequent Federal Register. (0168, 0267)

Response: EPA recognizes commenters' concerns about disruption to, and burdens on, current operations. However, EPA has determined that if the definitions of the generator categories are going to depend on the amounts of hazardous waste generated, it does not, in the end, make practical sense to have the possibility of a generator that is operating in more than one category. Regarding training, EPA notes that even though the requirements for LQGs are more prescriptive in the design of a training plan, the regulations for SQGs require that those employees in contact with hazardous waste must be appropriately trained and familiar with proper waste handling and emergency procedures, so the extent of who would have to be trained under this regulation should not be significantly different. Regarding developing a contingency plan, EPA does recognize that generators that were operating under the previous interpretation allowing acute and non-acute hazardous waste to be managed under different categories will have to now include the CAAs for all their hazardous waste to be covered by the contingency plan. EPA believes that covering all the hazardous waste at the generator is appropriate, as well, when there are LQG levels of waste at the site. 
Comment: One commenter states that EPA claims that the proposal will ensure that "a generator can only have one generator category in a calendar month." See, e.g., 80 Fed. Reg. at 57,928. The commenter argues that even under the existing rules, a generator can only have one generator category each month, although the acutely hazardous wastes generated by a CESQG or SQG may be subject to LQG requirements (if such wastes exceed the relevant thresholds). The commenter argues that what EPA appears to mean is that the rule will ensure that all of a generator's wastes will be subject to the same level of regulation and states that this is not true. The commenter goes on to say that even under EPA's proposal, if a VSQG at any time accumulates more than 1 kg of acutely hazardous wastes (or 100 kg of waste from cleanup of a spill of acutely hazardous waste), that acutely hazardous waste would become subject to full regulation (meaning the LQG requirements), even though the rest of the VSQG's wastes would be subject only to VSQG requirements. See 80 Fed. Reg. 57,994 (proposed to be codified at 40 C.F.R. § 262.14(a)(3)(i)). (0168)
Response: EPA disagrees with the commenter. Although there are some circumstances under the proposal (and in the final rule) in which a VSQG accumulates more than 1000 kg of hazardous waste on site and must manage the waste as LQG waste, the generator itself does not become an LQG. Generator categories are based on the month levels of generation of hazardous waste and therefore do not change even in this scenario. 

Comment: One commenter stated that although EPA states that "many EPA Regions and states" have "implemented" the RCRA requirements by requiring CESQGs and SQGs that generate more than 1 kg/month of acutely hazardous wastes to handle their non-acutely hazardous wastes as LQG wastes, the Agency has not cited any examples. And, in any event, if they are doing so (under the federal rules or state rules that track the federal rule), they are acting in a manner that is inconsistent with the clear meaning of the regulations. EPA cannot reasonably claim that the proposed rule would not have a significant effect. (0168) 
Response: EPA disagrees that any state operating under the interpretation that a generator can only have one category is acting in a manner inconsistent with the generator regulations. Regardless, due to the conflicting guidance on this matter, EPA is finalizing the revisions that make it clear that a generator can only have one generator category at a time. Several states implementing the RCRA program commented on this proposed rule stating that they are implementing the regulations as EPA described, including Hawaii, New Jersey, and Minnesota. All the states commenting on this topic expressed support for the revisions.
Section 3.2 - Mixing hazardous waste and nonhazardous waste

Comment:  The commenter agreed with this proposal as it provides clarity for all generators but recommends including language that clearly describes the difference between acceptable mixing and unacceptable dilution. The commenter believed that, if a non-hazardous waste that has some unique property such that, when it is mixed with a characteristic waste, the hazardous waste is treated by removing the characteristic, then this would be allowable. However, the commenter believed that it would not be acceptable to simply increase the volume of a characteristic waste to "dilute away" the characteristic. Additionally, the commenter asserted that mixing a non-hazardous waste with a listed waste will not remove the listing and that listed hazardous wastes cannot be rendered non-hazardous by mixing with non-hazardous wastes (85). 

EPA Response (85):  EPA agrees with the commenter and notes that an SQG or LQG mixing non-hazardous wastes with a hazardous waste until the material is no longer hazardous is prohibited. As stated in final preamble and regulatory text, SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i). Similarly; SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  This commenter supported the proposed clarifications regarding when mixtures of hazardous waste and non-hazardous waste will cause exceedance of the SQG and VSQG status levels (131).

EPA Response (131):  EPA agrees with this commenter.

Comment:  The commenter supported EPA's proposal to include references in § 262.16(c) and § 262.17(f) that assist SQGs and LQGs with finding the regulations applicable to the mixing of hazardous waste with non-hazardous waste as these modifications will make the regulations easier to understand. The commenter also supported EPA's proposal to add a provision for LQGs stating that mixtures of hazardous waste with non-hazardous waste are subject to the mixture rules. (134)

EPA Response (134):  EPA agrees with this commenter.

Comment:  The commenter supported EPA's proposal to modify and clarify how mixtures of non-hazardous waste and hazardous waste would affect generator categories and appreciated EPA's efforts to improve clarity/readability in this area while not changing the existing hazardous waste regulatory burden for the three generator categories (145).

EPA Response (145):  EPA agrees with this commenter.

Comment:  The commenter believed that the proposed changes in preamble section VII.B.3 ("Request for Comment") increase the readability of the mixture rule for all generator categories (182).

EPA Response (182):  EPA agrees with this commenter.

Comment:  The commenter requested EPA to clarify the Agency's intent with respect to the phrase ". . . the generator may have changed the properties of the hazardous waste and thus must make a hazardous waste determination on the resultant mixture." With respect to the post-mixing determination, the commenter asked whether "generator knowledge" be applied strictly by the dilution factor or whether the generator needs analytical data to determine the regulatory status after mixing. (185)
EPA Response (185): Regarding the first part of the above commenter's remarks, the Agency's intent regarding that phrase is that generators must always be aware of the properties of the waste, and types of hazardous waste they are dealing with when mixing either a solid waste with a hazardous waste, or a hazardous waste with another hazardous waste. The generator must be able to answer such questions as: Has a solid waste been generated as a result of mixing? Has a hazardous waste been generated with the same hazardous characteristics as before mixing? Has a listed hazardous waste been generated as a result of mixing? 

In the final rule the Agency makes clear that SQGs and LQGs must be aware of the § 268.3(a) prohibition of impermissible dilution of a hazardous waste with a solid waste to decharacterize the hazardous waste. The regulation at 40 CFR 268.3(a) states, ".....no generator, transporter, handler, or owner or operator of a treatment, storage, or disposal facility shall in any way dilute a restricted waste or the residual from treatment of a restricted waste as a substitute for adequate treatment to achieve compliance (emphasis added) with Subpart D of this part..." In particular, if a solid waste is mixed with a characteristic hazardous waste, the solid waste must provide a useful and effective contribution to de-characterizing the hazardous waste (i.e. possess a unique property to remove the hazardous characteristic from the hazardous waste instead of merely diluting it). Similarly, SQGs and LQGs are subject to the regulations applicable to mixtures found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i), and SQGs or LQGs that mix a characteristic hazardous waste with a solid waste to remove any hazardous characteristics are subject to the treatment standards found at § 268.40, as well as the "impermissible dilution" requirements in § 268.3.  

Regarding the second component of the commenter's remarks, generators may always use knowledge to determine whether the resultant mixture is a hazardous waste. Applying generator knowledge to the dilution factor is not appropriate because it is the resultant mixture that is important and for which a hazardous waste determination must be made. 

Comment:  The commenter asked that, once "determined" to still be hazardous, whether there is a limit on how much mixing can occur until the material is no longer hazardous (e.g., adding more non-hazardous waste to the hazardous waste via multiple mixings to stay under the generator limits) so as not to have to comply with being an SQG or an LQG. (185)

EPA Response (185):  A SQG or LQG mixing non-hazardous wastes with a hazardous waste until the material is no longer hazardous is prohibited. As stated in final preamble and regulatory text, SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i). Similarly; SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  Regarding proposed rule preamble Section VII.B.3 ("Request for Comment"), the commenter believed proposed language is needed for a CESQG (VSQG) and the SQG clarification of the mixture rule and that the proposed language for an LQG is also needed for determining applicable mixture regulations (185).

      EPA Response (185):  EPA agrees and notes that the final rule makes it clear that an SQG or LQG mixing non-hazardous wastes with a hazardous waste until the material is no longer hazardous is prohibited. As stated in final preamble and regulatory text, SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i). Similarly; SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation. The Agency also notes that  VSQGs also have mixing rules it must comply with that follow what was previously found at §261.5(h) and (i). 

Comment:  Regarding §261.5(h) and (i) and the mixing of hazardous and non-hazardous waste, the commenter generally disagreed with EPA's proposal, noting that clarification does nothing to address overt dilution of wastes for the purpose of removing characteristic prior to treatment and discharge under the CWA. The commenter asked why mixing is allowed if actions are to be undertaken for CWA compliance regardless of HW status. (196)

EPA Response (196):  EPA notes the commenter's concern over how characteristically hazardous wastes may be treated and discharged under the CWA. The Agency notes that §268.3 (b) is still applicable; i.e., "Dilution of wastes that are hazardous only because they exhibit a characteristic in treatment systems which include land- based units which treat wastes subsequently discharged to a water of the United States pursuant to a permit issued under section 402 of the Clean Water Act (CWA), or which treat wastes in a CWA-equivalent treatment system, or which treat wastes for the purposes of pretreatment requirements under section 307 of the CWA is not impermissible dilution for purposes of this section unless a method other than DEACT has been specified in §268.40 as the treatment standard, or unless the waste is a D003 reactive cyanide wastewater or non-wastewater."   

Comment: The commenter stated that the preamble description on Federal Register 57929 can be misinterpreted to encourage mixture and that the proposed codification does not clearly prohibit dilution as treatment. The commenter further noted that has always been a potential point of confusion and that the opportunity exists to clarify that the proposed references to the mixture rule in §§ 262.16(c) and 262.17(f) are not referring to mixture as treatment (214). The commenter then made the following statements:

Comment: Clarify how mixtures of listed commercial chemicals mixed with solid waste packaging are counted; for instance, in the case of nicotine patches and gum, whether or not the entire weight of the package should be counted versus the weight of the inner wrap and the gum or patch versus just the weight of the active ingredient in the item (214).

   EPA Response (214):  Consistent with existing EPA guidance, only the weight of the hazardous waste must be counted toward generator status. The weight of the container or packaging does not need to be counted toward generator status (see memo dated November 11, 2011; RCRA Online # 14827). The entire weight of the hazardous waste must be counted toward generator status; not just the active ingredient.
   
Comment: Many technical grade commercial chemicals are mixed with carriers or diluents that are not active ingredients. Although CERCLA is clear that the active ingredient weight determines whether a reportable quantity has been released, RCRA rules are not clear. (214)

   EPA Response (214): The commenter cites a lack of clarity under the RCRA regulations regarding how active ingredients and commercial chemical products are regulated. The commenter appears to be referring to how, for purposes of determining the quantity of hazardous waste generated under RCRA, the entire amount of a U- or P-listed Commercial Chemical Product (CCP) must be counted, rather than only the quantity of the sole active ingredient that might be contained in the mixture. EPA disagrees that the definition of CCP as laid out in 40 CFR 261.33 is unclear and points to the "comment" that appears following 261.33(d), which clarifies the definition of U- or P-listed hazardous waste as including "...all formulations in which the chemical is the sole active ingredient." EPA finds that the existing regulatory text is clear that solid wastes that meet the U- or P-listing are hazardous wastes in their entirety. The commenter also appears to draw a comparison to how chemical product mixtures are treated for purposes of release reporting requirements under CERCLA, which are not part of this final rule.  The commenter is referred to 40 CFR 302.6(b), where the amount of hazardous constituents (versus the entire mixture or solution) may be evaluated against the reportable quantities (RQs), if such amounts are known; otherwise, the entire amount of the mixture that was released must be evaluated against the RQ.
   
Comment: The clarifying language on the mixture rule for SQGs and LQGs should include a reference to the prohibition on dilution in lieu of treatment and a reference that the diluted waste is still subject to land disposal restrictions, even if the waste has been de-characterized by dilution outside of the exemption allowed in 40 CFR 268.3 for CWA equivalent treatment. In particular, disposal of diluted waste into a septic system (Class V injection well) is a concern. (214)

   EPA Response (214):  The final rule incorporates the commenter's suggestions associated with the prohibition on dilution as well as the diluted waste being subject to land disposal restriction requirements. Regarding the disposal of diluted waste into a septic system (Class V injection well), only non-hazardous wastes are allowed into Class V injection wells; thus, the Agency believes this comment is outside the scope of this rule.   

Comment:  One State believed EPA's proposal attempts to clarify how hazardous waste regulations apply to situations where both acute and non-acute hazardous waste are generated in the same calendar month and where hazardous wastes are mixed with non-hazardous wastes. One State is generally supportive of the clarifying language. However, while the proposed language for CESQGs in particular improves the understanding of the regulation regarding how mixtures of non-hazardous waste and hazardous waste would affect generator categories, the commenter recommends to further clarify with regard to mixtures of listed hazardous waste and non-hazardous waste. (217)

EPA Response (217):  The mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill. Therefore, a CESQG/VSQG mixing/diluting its waste to avoid regulation is difficult to understand since all it does is increase the costs to the generator. However, states may be more stringent than the federal program in which case they may prohibit mixing for dilution purposes. The Agency has made clear in preamble and regulatory text for the final rule that SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i) and they must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  The proposal to add a mixing provision for SQGs would allow a small quantity generator to mix its hazardous waste with non-hazardous waste and remain eligible for the conditional exemption applicable to a small quantity generator. One State believed the two scenarios provided are confusing because there may be instances when the quantity levels exceed SQG limits without bumping up their generator status. A much easier to understand scenario is presented in the LQG section located further down in Column 3 on page 57929. The State suggests it would be even clearer if CESQGs, SQGs, and LQGs all were to be held to the same standard as opposed to having different regulations applicable to each individual category. As stated previously, a couple of States suggested the regulations should be written clearly that land disposal restrictions may still apply even after the waste is rendered non-hazardous. (217)

EPA Response (217):  The mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill. Therefore, a CESQG/VSQG mixing/diluting its waste to avoid regulation is difficult to understand since all it does is increase the costs to the generator. However, states may be more stringent than the federal program in which case they may prohibit mixing for dilution purposes. The Agency has made clear in preamble and regulatory text for the final rule that SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i) and they must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  "Mixing" non-hazardous and hazardous waste is not defined. Under the current wording, it appears a CESQG could mix any hazardous waste with a non-hazardous waste and, as long as it is not a characteristically hazardous waste, the CESQG can dispose of it as a non-hazardous waste. Some States are concerned because it may allow CESQGs to take advantage of this rule and dilute their hazardous wastes in order to make them pass as a non-hazardous waste. A couple of States suggested EPA include a reference to Land Disposal Restrictions concerning the dilution of hazardous waste. (217)

EPA Response (217):  The mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill. Therefore, a CESQG/VSQG mixing/diluting its waste to avoid regulation is difficult to understand since all it does is increase the costs to the generator. However, states may be more stringent than the federal program in which case they may prohibit mixing for dilution purposes. The Agency has made clear in preamble and regulatory text for the final rule that SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i) and they must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  The last paragraph in column 1 provides a CESQG characteristic waste mixing scenario. One State suggested a second scenario is needed for a situation where either listed or acutely hazardous waste is mixed with enough waste to bump the generator into a higher category. Once mixed, the generator would need to complete a full waste determination on the resulting mixture, and not solely rely on the characteristics of the mixed waste in order to be in compliance with §262.11. (217)

EPA Response (217):  The mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill.  Therefore the mixture and derived from rule associated with mixing a listed waste with a solid waste to derive a listed waste does not apply to a VSQG. Instead, the VSQG must determine if the resultant mixture derives a characteristically hazardous waste.  However, states may be more stringent than the federal program for VSQGs and prohibit mixing for dilution purposes as well as following the mixture and derived from rules when mixing a listed waste with a solid waste.
  
Comment:  EPA requested comments on whether the proposed language for the mixtures rule, including making the mixture rules easier to find in the body of the regulations, improves understanding of the regulations regarding how mixtures of hazardous waste and non-hazardous waste affect generator size. Through experience, the commenter believes that the mixture rules are one of the most confusing and misunderstood parts of the regulations. The commenter's understanding  -  and how we apply the regulations  -  is that, with a few exceptions, mixing is dilution that is prohibited under the Land Disposal Restrictions and is subject to Permitting.  The commenter believes that US EPA should clearly state those conditions within the mixture rules, which would go a long way toward preventing misunderstandings that could result in improper management and disposal. (229)

EPA Response (229):  EPA believes that the final rule addresses the commenter's concerns by making it clear that an SQG or LQG mixing non-hazardous wastes with a hazardous waste until the material is no longer hazardous is prohibited. As stated in final preamble and regulatory text, SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); additionally, SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  Additional guidance on mixing hazardous waste residues from spills with non-hazardous waste or other hazardous waste (that is compatible) is requested. (240)

EPA Response (240):  EPA believes that the final rule provides sufficient guidance by making it clear that an SQG or LQG mixing non-hazardous wastes with a hazardous waste until the material is no longer hazardous is prohibited. As stated in final preamble and regulatory text, SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); additionally, SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  The Notice's recognition that EPA guidance on determining the generator category for facilities that generate acute and non-acute hazardous waste, as well as residues from the cleanup of a spill in the same month, has not been consistent historically is significant and appreciated. It has and can continue to lead to practical compliance issues for generators like those described in the NPRM (e.g., having to schedule shipments of acute and non-acute waste at different intervals, different contingency planning requirements, reporting, etc.). In addition, the commenter asks EPA to clarify in the final rule how the quantity of RCRA waste is determined if residues from a spill are added. The commenter would like EPA to confirm in its final action that the amount of waste for purposes of the conditions for exemption is based on the amount of residue from the spill and not the amount of the mixture (i.e., solid waste or other inert non-solid waste in addition to the residues from the spill). This in essence is an exemption from the mixture rule and would also be the basis for making a generator applicability determination. (240)

EPA Response (240):  First, in the final rule, the mixture rules have been separated out as a condition for exemption and are now found at §262.13 (f). Second, a generator's category is predicated on the resultant mixture - not on the amount of the original hazardous waste residue from the spill. Similarly, 
as stated in final preamble and regulatory text, SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); additionally, SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  Regarding Federal Register pages 57928-30 (Proposal for Generators That Mix a Non-Hazardous Waste with a Hazardous Waste), the commenter agrees that the proposed changes are clearer. (248)

EPA Response (248):  EPA agrees with the commenter.

Comment:  As a general rule and for reasons unrelated to the potential for "kicking up" into a larger generator category, the commenter generally advises dealers against mixing hazardous wastes with non-hazardous wastes. That said, the commenter supports EPA's proposals aimed at simplifying the language of its mixture rules as they apply to VSQGs, SQGs and LQGs. At the same time, the commenter urges EPA to consider a rule that would treat VSQGs and SQGs the same with respect to mixing hazardous and non-hazardous wastes. Specifically, the commenter suggests making both categories subject to the same rules, tests, and 1000 kg monthly thresholds for mixing listed and characteristic hazardous wastes with non-hazardous wastes. (253)

EPA Response (253):  The Agency appreciates the commenter's suggestion but to allow such an activity would require a proposed rule that is outside the scope of this rule.

Comment:  Regarding Federal Register page 57928 (Proposal for Generators That Mix a Non-Hazardous Waste with a Hazardous Waste), while the commenter agrees with EPA's intent, we believe this will cause more confusion and may cause the mismanagement of hazardous waste. The commenter believes it would be beneficial for EPA to standardize the LDR forms and provide standard interpretation on the requirements. (284)

EPA Response (284):  EPA appreciates the commenter's suggestion but this is beyond the scope of this rulemaking.

Section 3.2.1 - CESQGs mixing

Comment:  The commenter supports EPA's proposal to clarify that a CESQG may maintain its generator status when it mixes hazardous waste with non-hazardous waste as long as the resulting mixture does not exhibit a hazardous waste characteristic (77)

EPA Response (77):  EPA agrees with the commenter.

Comment:  EPA's proposal attempts to clarify how hazardous waste regulations apply to situations where both acute and non-acute hazardous waste are generated in the same calendar month and where hazardous wastes are mixed with non-hazardous wastes. The commenter is generally supportive of the clarifying language. However, while the proposed language for CESQGs in particular improves the understanding of the regulations regarding how mixtures of non-hazardous waste and hazardous waste would affect generator categories, the commenter would also recommend that further clarification be provided with regard to mixtures of listed hazardous waste and non-hazardous waste. EPA's current examples only speak to mixtures of characteristic hazardous waste and non-hazardous waste mixtures but do not include examples of listed hazardous waste and non-hazardous waste mixtures. (116)

EPA Response (116):  The mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill.  Therefore the mixture and derived from rule associated with mixing a listed waste with a solid waste to derive a listed waste does not apply to a VSQG. Instead, the VSQG must determine if the resultant mixture derives a characteristically hazardous waste. 
Comment:  The proposed text for VQSGs is mostly clear. We recommend replacing "If the mixture does exceed the quantity limit" with "If the mixture does cause the generator to exceed the quantity limit" to avoid confusion/inconsistency. Even if the mixture itself is less than 100kg, it must be considered along with other waste generated in the same month to determine whether VSQG generation quantity limits have been exceeded. It would be clearer to say that a VSQG "becomes" or "is" an SQG or LQG during a month when VSQG quantity limits are exceeded (per 40 CFR 262.13) than to say that SQG or LQG conditions of exemption apply. (122)

EPA Response (122): In response to comments, Agency has modified the regulatory text for VSQGs mixing hazardous waste with solid waste to make it more clear what is applicable to them.  

Comment:  The commenter does not support allowing CESQGs to mix hazardous waste with non-hazardous waste for the purpose of shipping their waste to an LQG that is under the control of the same person. Under current regulations, CESQGs are not allowed to mix hazardous waste and non-hazardous and thus should not be allowed to do so for purposes of shipping to a LQG. (134)

EPA Response (134): The Agency disagrees with the conclusions of this commenter. The existing rules at §§ 261.5(h) and (i) already allow for the mixing of hazardous waste and non-hazardous waste by a VSQG. All the Agency is doing is clarifying those rules. 

Comment:  The commenter agrees with the proposed revisions to § 261.5(h) and (i) and § 261.3 which will make the regulations clearer and eliminate confusion when generators are trying to determine the correct category when the mixed hazardous waste exceeds the CESQG quantity exclusion level or when the mixture exceeds the CESQG quantity exclusion level. (134)

EPA Response (134):  EPA agrees with this commenter.

Comment:  In proposed rule preamble Section VI.B1, EPA discusses the fact that the so-called "mixture and derived from rules" do not apply to CESQGs. These rules clarify that, when listed hazardous wastes are mixed with other solid wastes or are created as the result of the treatment of hazardous waste, they remain subject to regulation as listed hazardous wastes. The purpose of this rule is to prevent generators from rendering their wastes non-hazardous by intentionally diluting them. The commenter is concerned that this statement by EPA could have significant unintended consequences, especially in the commenter's state since state statutes and regulations are more stringent in that CESQGs are not allowed to dispose of any amount of hazardous waste (mixed or not) with non-hazardous solid waste (i.e., trash). (178)

EPA Response (178): The mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill. Therefore, a CESQG/VSQG mixing/diluting its waste to avoid regulation is difficult to understand since all it does is increase the costs to the generator. However, states may be more stringent than the federal program in which case they may prohibit mixing for dilution purposes by CESQGs. The Agency has made clear in preamble and regulatory text for the final rule that SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i) and they must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  EPA needs to define what mixing is in regards to a VSQG mixing hazardous waste with a material. Mixing a D001/F003/F005 liquid paint waste with sawdust or oil dry is clearly mixing and is within the spirit of the rule. Mixing a D001/F003/F005 liquid paint waste or placing still bottoms by discharge into a roll off container filled with municipal solid waste is technically mixing but not in the spirit of the rule. In many cases, these wastes do not actually mix. Is the intent of this to ensure that VSQG waste is blended in with non-hazardous solid wastes?  (206)
   
EPA Response (206):  The mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill. Please note that the Agency is not changing the mixing rules for generators as much as clarifying what rules apply. Regarding the statement, "Mixing a D001/F003/F005 liquid paint waste or placing still bottoms by discharge into a roll off container filled with municipal solid waste is technically mixing, but not in the spirit of the rule," generators are not allowed to dispose of liquids in landfills and a VSQG must also be aware that any mixing of wastes, such as the above, could derive a characteristically hazardous waste, possibly bumping the VSQG into a higher generator category.

Comment:  Explicitly state under 40CFR§262.14(b) that the mixture and derived from rules do not apply to VSQGs when mixing a listed hazardous waste with a material. This is stated in the August 17, 1988, 53 FR 31149. (206)

EPA Response (206):  The commenter is correct. However, based on comments the Agency received, we also agreed that the mixture rules are more applicable for determining a generator category than as a condition for exemption which is what placing it under 40CFR§262.14(b) would do.

Comment:  The commenter supported the proposed clarifications regarding when mixtures of hazardous waste and non-hazardous waste will cause exceedance of the SQG and VSQG threshold amounts of hazardous waste generation that demarcate their status. However, these standards should not be identified as Conditions for Exemption as they have nothing to do with delineating between VSQGs, SQGs, LQGs and TSDFs. (219)

EPA Response (219):  EPA has addressed this comment in the final rule. 

Comment:  EPA has specifically requested comment on whether the proposed language for CESQGs and SQGs improves the understanding of the regulations regarding how mixtures of non-hazardous wastes and hazardous waste would affect the generator category and the appropriate treatment of the resulting mixture. Based on the commenter's experience, it is recommended that any changes to the regulations for this situation be written carefully. As proposed, this practice might allow an estimated 150,000 tons of hazardous waste to be placed in sanitary landfills annually. It is our opinion that dilution of waste in any form is not a good idea and can easily lead to mismanagement and it is sometimes very difficult to differentiate between mixing that is allowed under these regulations and dilution which is not. The commenter agrees that the proposed language appears to help regulated parties understand how mixtures of hazardous and non-hazardous waste affect the generator's category. However, practically speaking, the activity appears to be dilution for the purpose of rendering the waste non-hazardous, which is typically prohibited without a permit. Although we understand such conditional mixing is allowed and these regulations have been in place for some time, the success and demonstration of adequate waste mixing depends on the amount of mixing performed (so there are no remaining "hot pockets" of contamination) and also on whether appropriate testing was done to determine if the mixture is no longer hazardous prior to disposal as solid waste. Therefore, we recommend that these facts be acknowledged in some way in the final rule or the regulations. (223)

EPA Response (223): The Agency has made clear in both preamble and regulatory text that SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i) and they must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation. Regarding VSQGs, the mixing rules for federal CESQGs/VSQGs are different than for SQGs and LQGs because CESQGs/VSQGs can always dispose of their hazardous wastes in a municipal solid waste landfill. Therefore, a CESQG/VSQG mixing/diluting its waste to avoid regulation is difficult to understand since all it does is increase the costs to the generator. However, states may be more stringent than the federal program in which case they may prohibit mixing for dilution purposes.

Comment:  The commenter supports the proposed clarification of the applicability of waste mixture requirements to VSQGs; however, the commenter further recommends EPA consider eliminating or significantly reducing the differentiation between a VSQG's mixing of hazardous waste and an SQG's or LQG's mixing of that same waste. The environmental risks presented by a waste do not depend on the regulated status of the business that generated it. Allowing VSQGs to mix toxic listed wastes with non-hazardous dross and consider the resulting mass non-hazardous if it does not display a characteristic, while simultaneously considering that identical wastes mixed in an identical way by SQGs and LQGs present a sufficient environmental risk to require management as a listed hazardous waste, is not reasonable. The commenter has applied nearly equivalent mixture requirements to VSQGs as SQGs and LQGs are subject to since 1992 [16 SR 2102; revising Minn. R. 7045.0292]. The commenter retained solely an allowance for VSQGs to mix limited amounts of non-chlorinated characteristic or listed solvents from vehicle maintenance (excepting only those solvents that are chlorinated) with used oil, with the resulting mixture eligible to be managed as used oil (since most used oil generated by VSQGs is burned for energy recovery on-site). The commenter's experience has been that these mixture requirements do not present an unreasonable burden to VSQGs, either operationally or economically, and increase environmental protection by ensuring toxic listed wastes are not diluted or "mixed away" and then disposed in facilities that cannot adequately handle them. The commenter has observed that applying nearly the same mixture requirements to all generators has resulted in clarity and easy understanding, and therefore high levels of compliance in a synergistic effect further increasing environmental and public health protection, among all generator sizes and believes this benefit would be realized nationwide. (232/281)

EPA Response (232/281): The objective of this rule was simply to clarify the regulations associated with the mixing of a hazardous waste and solid waste by generators. The Agency appreciates these comments but modifying the mixture rules for VSQGs to be consistent with SQGs and LQGs is beyond the scope of this rule. 

Comment:  The commenter agrees with the proposed revisions to § 261.5(h) and (i) and § 261.3 which will make the regulations clearer and eliminate confusion when generators are trying to determine the correct category where the mixed hazardous waste exceeds the CESQG quantity exclusion level or to situations where the mixture exceeds the CESQG quantity exclusion level. (243)

EPA Response (243):  EPA agrees with the commenter.
Section 3.2.2 - SQGs and LQGs mixing
 
Comment: For small and large quantity generators, more could be done to improve the readability of the regulations. The first paragraph in the preamble under "2. LQGs and SQGs that mix a non-hazardous waste with a hazardous waste (40 CFR 261.3)" is helpful (p. 57929, middle column). Could the regulatory text at 262.16(c) and 262.17(f) include something like this with references to the complicated exceptions for wastewaters contained in 261.3(a)(2)(iv)? This would be extremely helpful in making the SQG and LQG mixing rules clearer and easier to locate. Also, it would be helpful if the phrase "although [the mixture] would still be subject to applicable land disposal restriction requirements" (referring to a mixture containing characteristic hazardous waste or waste listed only due to the characteristics of ignitability, corrosivity, and/or reactivity, where the mixture itself does not exhibit a characteristic) appeared in 262.16(c) and 262.17(f), because this is explained in 261.3(g)(3) and could be easily overlooked by a generator following the reference to 261.3(g)(2)(i) only. Similar to the comment above regarding VSQGs, an SQG "becomes" or "is" an LQG in a month when it exceeds SQG generation quantity limits (per 262.13). It would be clearer to say this than to say "must meet the conditions for exemption applicable to a large quantity generator." (122)

EPA Response (122): In response to comments, the Agency has modified the regulatory text for SQGs and LQGs mixing hazardous wastes with solid waste to make more clear what regulatory requirements are applicable to them.  Similarly, in response to comments, the Agency has moved the mixing regulations to § 262.13 (f) because these regulations are more applicable to determining a generator's category than as a condition for exemption. 

Comment:  The commenter has concerns about proposed clarifications to the requirements that apply to SQGs and LQGs that mix hazardous waste with non-hazardous solid waste. Although the commenter understands what EPA is trying to accomplish with these clarifications, we are concerned that they could encourage mixing and improper disposal of hazardous waste. (178)

EPA Response (178):  EPA believes that the final rule addresses the commenter's concerns by making it clear that an SQG or LQG mixing non-hazardous wastes with a hazardous waste until the material is no longer hazardous is prohibited. As stated in final preamble and regulatory text, SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); additionally, SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation.

Comment:  One State commented, in concert with this new provision, which is highly supported, it should also be cross-referenced at §262.16(c)(2) for SQGs that mix hazardous waste and non-hazardous waste which results in an exceedance on the SQG monthly threshold. Proposed Subpart L should be listed as an option in addition to complying as a LQG for that month. (217)

EPA Response (217):  In response to comments, the Agency in its final rule moved the discussion of the mixture rules into its own section at 40 CFR 262.13 (f) since mixing is unrelated to waste accumulation.  

Comment:  The commenter supports the proposed clarification of the applicability of waste mixture requirements to SQGs and LQGs and believes that clarity in requirements decreases misunderstanding and increases both compliance and ease of enforcement if necessary. (232/281)

EPA Response (232/281):  EPA agrees with the commenter.

Comment:  The commenter supports clarifications of the so-called RCRA "Mixture Rule" applicable to SQGs  -  the SQG Mixture Rule.  In addition to adding citations to Part 262 to cross reference the mixture definitions to the SQG and LQG applicable requirements, EPA proposes to add at §261.3 a provision that will indicate that a small quantity generator may mix its hazardous waste with non-hazardous waste and remain eligible for the conditional exemption applicable to a small generator provided that (1) the mixture is not a characteristic hazardous waste and (2) if the mixture retains the characteristics of hazardous waste, the mixture does not cause the generator to exceed the SQG quantity limits for a calendar month. The commenter believes that this is a helpful clarification of (h) and (i), how the mixture rule was intended to operate. (240)

EPA Response (240):  EPA agrees with the commenter.

Comment:  The commenter supports EPA's proposal to add a provision for LQGs that states that mixtures of hazardous waste with non-hazardous waste are subject to the mixture rules. (243)

EPA Response (243):  EPA agrees with the commenter.

Comment:  On Federal Register page 57929 (3[rd] column), EPA discusses a SQG mixing 100 kg of characteristic hazardous waste (or F003-like listed hazardous waste) with 1000 kg of non-hazardous wastes and the resulting mixture not exhibiting a characteristic. EPA's statement that the resulting mixture "would still be subject to applicable land disposal restriction requirements" gives no indication that such mixing is typically not even allowed under 268.3(a). Also, such mixing constitutes 260.10-defined treatment, and a permit exemption (or TSD permit) is needed.

EPA Response (269):  The Agency has modified the mixture regulations in response to comments, such as this, to make clear that  SQGs and LQGs are subject to the mixture rule found in §§ 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i). Similarly; SQGs and LQGs must comply with § 268.3(a), which prohibits impermissible dilution to avoid regulation. Additionally, mixing either a listed or acutely listed hazardous waste with a non-hazardous waste derives a listed hazardous waste and the generator must make a full waste determination on the resulting hazardous waste mixture. EPA has noted in guidance that generators are allowed to treat their hazardous wastes in containers (except for thermal treatment) without a permit (provided that the relevant conditions for exemption are met).
Section 3.3 - CESQG Consolidation at an LQG

3.3 General Comments
Summary: 
(a) Several commenters, particularly the retail sector, claimed that VSQG hazardous waste can already be consolidated at any intermediate location, under the existing RCRA regulatory framework, as long as the VSQG ensures that the waste is ultimately delivered to an acceptable facility listed in the regulations (99, 168, 233, 234).
(b) Other commenters noted that certain states already operate consolidation programs that go beyond what EPA is finalizing in this notice. For example, Minnesota operates a VSQG collection program (VSQGCP) where non-affiliated LQGs apply and are individually reviewed and approved by the state to receive hazardous waste from any VSQG at their discretion. Currently, Minnesota has approved 31 such VSQGCPs, providing relatively convenient safe disposal for VSQGs across the state (232). The Utility Solid Waste Activities Group and other commenters also expressed their concern that EPA has not acknowledged many state practices that facilitate the removal of small hazardous waste streams from remote, unmanned locations (93, 149, 213).
(c) Several commenters were unable to identify how the ability of VSQGs to ship wastes to LQGs would be something they could benefit from (168, 192). The Retail Industry Leaders (RILA) commented that EPA dramatically understates the costs and overstates the benefits of the consolidation provision (168). SOCMA did not see where any savings would be realized, assuming VSQGs would have to package, label, and manifest the waste for shipment to an affiliated LQG (192).
(d) Earthjustice requested EPA remove the existing provisions allowing VSQGs to treat, store or dispose of their hazardous waste at non-hazardous waste facilities (264).
(e) Earthjustice also asked EPA to explain why similar conditions being set for VSQG-LQG consolidation are not also necessary to ensure safe hazardous waste management when CESQGs send their wastes to non-hazardous waste sites under 40 C.F.R. §§ 261.5(f)(3) and (g)(3) (264). 

EPA Response: 
(a) EPA does not agree with this characterization of the existing regulations and has expressed that in writing as far back as 1987 in a RCRA Hotline Monthly Report Question (April, 1987, RCRA Online 12894). As explained in the guidance, a VSQG must either treat or dispose of its hazardous waste in an on-site facility or ensure delivery to an off-site facility listed in previous § 261.5(f)(3) and now found at § 262.14(a)(4).
(b) It is not EPA's intention to interfere with existing state consolidation programs. If a state has authorized a facility to manage hazardous waste or has permitted, licensed, or registered a facility to manage municipal solid waste or non-municipal, non-hazardous waste, EPA would consider that to be a facility allowed to receive VSQG waste under § 262.14(a)(5). In addition, EPA notes that states can be more stringent and thus, can adopt the VSQG consolidation provision finalized in this rule and add other requirements as they deem necessary and allowable under state law.
(c) EPA disagrees with commenters about the benefits of the consolidation provision. First, to clarify, VSQGs would only need to label the waste with the words "Hazardous Waste" and comply with any applicable DOT requirements. The shipments would not have to be manifested to the LQG. Many commenters, including many regulated generators, expressed their opinion that the VSQG consolidation provision would allow them to manage their hazardous waste in a more efficient and cost-effective manner.
(d) EPA finds that Earthjustice's argument has no merit. EPA is not reopening the CESQG exemption (now called the VSQG exemption) itself. Their argument that the CESQG exemption is unlawful is moot since the CESQG exemption has existed for decades, going back to 1980, and was essentially recognized and accepted by Congress when they included a SQG provision in the Hazardous and Solid Waste Amendments of 1984.
(e) This comment is out of scope. EPA's proposal sought comment on the VSQG/LQG consolidation issue, and not at all on reopening the CESQG exemption generally. 

Section 3.3.1 - Need for consolidation provision

Summary:
(a) A large number of commenters expressed support for allowing VSQGs to consolidate at LQGs under the same control (60, 76, 77, 78, 82, 88, 91, 93, 98, 103,107, 108, 110, 116, 121, 123, 126, 129, 131, 133, 134, 137, 145, 146, 154, 159, 160, 163, 172, 178, 181, 183, 185, 187, 188, 190, 195, 202, 206, 212, 213, 216, 217, 219, 221, 224, 225, 226, 235, 236, 240, 243, 248, 250, 253, 254, 256, 257, 258, 259, 262, 263, 282, 284, 285).Commenters expressed their support for consolidation, stating that it will ease the financial and administrative burden for VSQGs and encourage responsible waste management, treatment, and disposal. Specifically, some commenters stated that consolidation at an LQG would ensure greater safety and environmental protection because LQG staff are generally more knowledgeable than those at a VSQG. In addition, the Minnesota Pollution Control Agency confirmed with direct observation that allowing a VSQG to send its hazardous waste to another site where proper and safe management is available at a reasonable financial and management price, such as is provided by a VSQG collection site, does consistently reduce the average time that VSQGs accumulate waste onsite, reducing on-site health and safety risks and also lowering the potential for both accidental releases and the temptation for improper disposal of larger amounts(232).
(b) A few commenters did not support allowing VSQGs to consolidate at LQGs under the same control, stating it would likely result in increased handling and movement of hazardous waste, which could result in mixing of incompatibles, unsafe storage, improper handling, and incidents in transit (68, 264). One commenter stated that LQGs would likely not be as familiar with the CESQG's waste and its hazardous properties and recommended it be limited to waste similar to that which is generated and managed at the LQG. This commenter also suggested not allowing reactive or hard to handle wastes to be included (68).
(c) Some commenters, while expressing their support for the consolidation provision, also noted their opinion that the conditions were too stringent or did not need to be so extensive and might discourage use of this option (77, 98, 212, 263, 284). One commenter noted that DOT requirements would preclude most generators from taking advantage of this new provision as most are not permitted to transport hazardous materials (154).
(d) The Environmental Technology Council (ETC) and other commenters support the consolidation provision but believe it should only take place where the LQG has operations independent of the CESQG. The LQG must be able to show it was not established solely for the purpose of receiving hazardous waste from a CESQG (134, 181, 243). One state also strongly believes that the LQG must maintain its LQG status based on its own on-site generated waste and not as a result of being an LQG simply based on wastes received from the CESQGs. Otherwise, the state argued that the LQG would seemingly be engaged in waste management that requires a RCRA permit (108). 
(e) One commenter noted that many entities, such as hospitals and universities, operate multiple and distinct CESQGs but most do not have a facility that also generates waste at a level that would classify them as an LQG (254). Commenters asked for clarification on whether such entities are allowed to operate one of their facilities as an LQG even if they don't physically generate waste at an LQG level (189, 195, 214, 217, 248, 254). Another commenter said EPA should provide an allowance for a facility that is typically an LQG but occasionally reverts to SQG to participate in the consolidation program without being considered in a state of non-compliance because it was an SQG in a month it received CESQG waste. This commenter noted that sometimes an LQG might not know its generator status until the end of a calendar month (146).
 
EPA Response:
(a) EPA has decided to allow VSQGs to consolidate at LQGs under the same control because it will improve the management of VSQG hazardous waste and thanks the commenters for their support. EPA has determined the management of VSQG will be improved for a number of reasons. First, LQGs are subject to more stringent management conditions compared to VSQGs, such as accumulation time, labeling, training, emergency planning, and containment standards. In addition, LQGs may only transport (using a hazardous waste manifest) hazardous waste to RCRA-permitted or interim status hazardous waste TSDFs, which in turn, are subject to more stringent management standards than the municipal or non-municipal solid waste facilities that VSQGs are allowed to use. Therefore, allowing hazardous waste generated by a VSQG to be sent to an LQG under the control of the same person will improve overall tracking, oversight and management of the hazardous waste and enable more effective environmental protection. Furthermore, a company, because of economies of scale, may reduce its overall waste management costs, as well as its potential financial liabilities for hazardous waste it generates at VSQG facilities, as it would be handled under the more comprehensive LQG and TSDF regulatory programs. Consolidation by an LQG of hazardous waste generated by several VSQGs under its control may also increase potential opportunities for hazardous waste recycling by the LQG. Even though the amount of hazardous waste allowed on site by VSQGs at any one time is limited, the longer that hazardous waste is accumulated on site, the greater the risk of adverse impacts to human health and the environment. Allowing VSQGs to send their hazardous waste to an LQG under the control of the same person will likely reduce the overall time that the VSQG accumulates hazardous waste on site, which would further reduce the potential risk to human health and the environment.
(b) EPA disagrees with those few commenters that did not support allowing VSQGs to consolidate at LQGs under the same control and has determined that the benefits of having the waste managed more protectively outweigh any increased handling or movement of the waste. EPA has also decided that since the consolidation provision is limited to VSQG waste consolidated at an LQG under the same control, we do not need to place restrictions on the type of VSQG hazardous waste that can be consolidated. Since the LQG is under the control of the same person, liability remains within the same company and thus, the LQG has strong incentives to handle the VSQG waste properly and will know who to ask at the VSQG if they are not familiar with the waste.
(c) EPA has determined that most of the proposed conditions of the VSQG-LQG consolidation provision are necessary to ensure the waste is managed protectively. EPA did revise the labeling provisions as discussed below to reduce the burden on VSQGs and harmonize the labeling with the labeling requirements already required at LQGs.
(d) By limiting the consolidation provision to facilities under the control of the same person, EPA is ensuring the responsibility for managing the VSQG waste remains within the same company and liability for improper management is upon this same company. The waste must be managed at the LQG according to the LQG regulations but there is nothing in the regulations that would prohibit a VSQG or SQG from becoming an LQG. As long as they take on all the responsibilities associated with being an LQG and they manage the VSQG waste as LQG waste, they would be eligible for consolidating VSQG waste. Since the LQG requirements are quite extensive, EPA does not expect it to be a common occurrence for a VSQG or an SQG to decide to operate as an LQG.
(e) EPA confirms that a hazardous waste generator can opt to operate at a higher level (i.e., as an LQG) if they wish to consolidate their VSQG waste, as long as the facility complies with all of the conditions required of an LQG, such as notification, weekly inspection of accumulation areas, personnel training, contingency planning, etc. If a facility that is usually an LQG reverts to SQG status in a given month, they can continue to participate in the consolidation program as long as they continue to manage the VSQG waste received under the LQG generator requirements. 

Section 3.3.2 - Scope of consolidation SQGs


Summary:
(a) Several commenters supported allowing VSQGs to consolidate hazardous waste at SQGs under the control of the same person, in addition to LQGs (59, 70, 85, 87, 92, 118, 146, 163, 168, 214, 224, 234, 240, 253, 257).These commenters stated that the same rationale applies and allowing same-company SQGs to participate would give the VSQGs more options for managing their hazardous waste. The benefits realized would be saving time, resources, and money, as well as improved management of hazardous waste since the VSQG waste would be subject to the increased regulatory requirements of an SQG. Some commenters pointed out that SQGs have an additional on-site accumulation limit of 6,000 kg of hazardous waste at any one time and this should continue to apply if the provision is expanded to allow SQGs to consolidate VSQG waste (70, 118, 168). Other commenters noted that allowing SQGs to participate would greatly benefit generators in remote rural areas and facilities that generate a majority of their hazardous waste at off-site locations, such as utilities (85, 146). USWAG, DOD, and others noted that EPA should expand the consolidation provision to allow VSQGs to transfer their hazardous waste to any other sites under the control of the same person, regardless of generator category (93, 98, 149, 171, 177, 187, 195, 253, 257). USWAG noted that since utilities have undertaken waste minimization measures, very few LQG sites remain (93).
 
EPA Response: 
(a) At this time, EPA is limiting the scope of this consolidation provision to VSQGs sending their hazardous waste to an LQG under the control of the same person. EPA did not take comment on allowing VSQG-SQG consolidation and there are more implementation issues that would need to be worked out before EPA could determine if allowing the consolidation provision to be expanded to SQGs is workable, particularly how the overall accumulation limit of 6,000 kg of hazardous waste accumulated at any one time at an SQG would factor into taking VSQG waste. After a sufficient number of states adopt the intra-company consolidation provision, the Agency plans to evaluate how the consolidation option is working. EPA will then consider possible expansion of the provision in the future, including whether to allow VSQG consolidation at SQGs under the same control. EPA reiterates, however, that an SQG can choose to comply with the LQG regulations and thus, participate in the VSQG consolidation program that way. 

Section 3.3.3 - Scope of consolidation: under the control of the same person


Summary:
(a) A number of commenters supported limiting the scope of the consolidation provision to VSQGs and LQGs that are under the control of the same person and specifically opposed expanding the provision to VSQGs not under control of the same company (108, 116, 125, 174, 182, 195, 196, 217, 223, 248). According to the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), most states believe that the transfer of hazardous waste from VSQGs to LQGs that are not under the control of the same person would introduce a large chance for improper management of hazardous waste and would not be protective (182, 217). One commenter that opposed the intra-company consolidation program also did not support allowing CESQGs to send their waste to LQGs that are under the control of an entirely different company (264).
(b) Some commenters supported expanding the scope of the consolidation provision to allow VSQGs to send waste to unrelated LQGs, arguing that limiting the scope to under the same control limits the potential effectiveness and versatility of the consolidation provision (107, 121, 144, 149, 168, 183,225, 253, 254, 259, 262). One commenter specifically argued that customer returns to a product manufacturer should be allowed under the VSQG consolidation provision, even though the companies are not under common control. This commenter noted that the same conditions and protections apply with respect to customer returns to a product manufacturer, arguing the manufacturer is essentially in control, knows the returned product's hazardous properties, and can declare its willingness to assume liability and responsibility for the waste (107). Another commenter argued that if retail CESQGs were allowed to send potentially hazardous waste back to a return center, this would be an effective, workable, and simplified way to handle these materials (234). The Minnesota Pollution Control Agency (MCPA) questioned EPA's assertion that VSQGs sending waste to an LQG under the control of the same person is necessary to ensure proper management. Through MPCA's experience running the VSQG Collection Programs (VSQGCPs) for over 20 years, MCPA believes the regulator-approval paradigm is the superior model to EPA's proposed "under the same control" approach and does not believe limiting the program to facilities under the same control is necessary or helpful to a large majority of the regulated community. However, MCPA does not support the self-implementing variation that would allow consolidation at unrelated facilities without state or EPA approval (232). Hennepin County (MN) also expressed their support for the MN program and urged EPA to consider developing regulations akin to MN's VSQG collection site rules (229). Several other commenters agreed with allowing consolidation between unrelated VSQGs and LQGs as long as it was authorized on a case-by-case basis and not self-implementing (85, 134, 189). Others agreed with the proposed variation that would allow consolidation between unrelated VSQGs and LQGs on a self-implementing basis if the implementing agency did not respond in a 60-day timeframe (131, 146, 183, 219). However, ASTSWMO noted that most states disagreed with this approach because there would be no incentive to manage the hazardous waste appropriately and because of the burden this would put on states to review these requests (217).One commenter argued for allowing CESQG waste to go to any facility that chooses to operate as an LQG, regardless of whether the LQG normally generates waste at an LQG level or generates hazardous waste at all (254).
(c) One commenter raised implementation questions about how the relationship between VSQGs and LQGs would be documented and reported, including whether the RCRAinfo database would be modified (112). The RCRAInfo Site Identification Expert Group and one state commented specifically on using the Site ID form for the consolidation provision and noted their opinion that using the comment field for recording the VSQG information is inappropriate because it is designed to hold free-form text and is not easy to query. They suggested creating a new addendum form for the purpose of opting in or out of the VSQG-LQG consolidation provision and for listing/updating the information for the VSQGs taking part (125, 189).
(d) Several commenters asked for clarification of "under the same control." Two commenters suggested that since EPA had concluded that so long as the two entities are "within the same corporate structure" in the Definition of Solid Waste rule, that would qualify for "under the control of the generator" and EPA should clarify that we would interpret new §262.14(a)(5)(viii) the same way (131, 219). The same commenters also thought a VSQG that is a joint venture of the LQG or vice versa, and where the joint venture is controlled to a significant extent by the related venture party, should also qualify as under the control of the same person. They suggested the significant control be any ownership amount at or above 35% (131, 219). Another commenter requested EPA provide clarification about whether franchises are included in the definition of control (206). One state suggested promulgating a definition of "control" (217). Another commenter asked EPA to allow VSQGs to ship to an LQG with a "minority share" in the commonly controlled business or vice versa (240). Other commenters suggested variations of "under the same control," such as allowing for a contractual relationship between a federal agency and its facilities operated by other persons (118) or requiring some sort of business relationship that ties them together in a meaningful way, such as a contract (168, 259).The Coalition of Industrial Generators also noted that they would not object to this option being conditioned on there being a direct or indirect contractual relationship between the VSQG and LQG (219). Florida stated that it appears EPA is eliminating the possibility of contractors returning waste to their headquarters under the co-generator policy (214). Connecticut requested clarification on the meaning and intent of the language that under the control of the same person does not extend to contractors who operate generator sites on behalf of a different person (178). One commenter argued that generators should be able to consolidate at locations not under the same control if the VSQG is a public entity or not-for-profit (256). 
(e) One commenter claimed that this provision requires VSQGs to be under the same ownership as LQGs is inconsistent with the proposed Hazardous Waste Pharmaceuticals rule (132). 

EPA Response: 
(a) EPA agrees with commenters that supported limiting the consolidation provision to VSQGs and LQGs that are under the control of the same person. Limiting transfers to facilities under control of the same person is appropriate because it ensures common control is maintained over both facilities and takes advantage of strong liability incentives to ensure the hazardous waste is safely managed. Additionally, if a VSQG sends hazardous waste to an LQG under the control of the same person, the LQG is likely to be more familiar with the type of hazardous waste generated by the VSQG. Furthermore, questions regarding liability and responsibility for such hazardous waste are clearer than is the case with facilities from unrelated companies. 
(b) After consideration of the comments received, EPA has decided not to finalize an inter-company consolidation provision at this time. There was not enough support in the public comments and significant implementation issues were identified. It is likely that additional safeguards would need to be put in place to allow VSQG consolidation at an LQG that is not under the control of the same person. After a sufficient number of states adopt the intra-company consolidation provision, the Agency plans to evaluate how the consolidation option is working. EPA will then consider possible expansion of the provision in the future, including whether to allow VSQG consolidation at SQGs under the same control and/or LQGs under the control of a different person. 
(c) EPA is finalizing the requirement that the LQG must list the VSQGs they receive waste from on the Site ID form, which is also a form including in the LQG's BR. EPA will be revising the Site ID form to allow for this and plans to consult with the RCRA Site ID expert group and take their comments into account when making those revisions to ensure that the form instructions are clear and that the data is readily accessible. 
(d) EPA is using the same language for the key terms in "under the control of the same person" that we used in the exclusion from the definition of solid waste (DSW) for hazardous secondary materials that are generated and legitimately reclaimed under the control of the generator (40 CFR 261.4(a)(23)), which was promulgated on October 30, 2008, (73 FR 64668) and revised on January 13, 2015 (80 FR 57918). "Person" is defined in § 260.10 to mean an individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state or any interstate body. Control means "the power to direct the policies of the generator, whether by ownership of stock, voting rights, or otherwise, except that contractors who operate facilities on behalf of a different person shall not be deemed to "control" such facilities." We have clarified in the preamble to this final rule that consistent with the October 30, 2008, final rule, companies within the same corporate structure would be considered "under the control of the same person" if they meet the definition of same "person" and "control." EPA has been explicit that contractors would not be considered to be under the control of the same person in both the DSW and the generator rules. If a contractor is operating a generator site on behalf of a different person, that person can use the consolidation provisions if they send their waste to an LQG under the same control. Additionally, EPA and the implementing state agencies do not have the expertise to review and enforce business contracts and contractor liability. If the other business arrangements mentioned by the commenters meet the definition of under the control of the same person as defined, EPA would consider those acceptable. EPA intends to evaluate how the intra-company consolidation provision is working before we consider expanding it to facilities that are under the control of a different person, such as contractors. 
(e) For the reasons stated above, EPA has determined that the consolidation provision should be limited to VSQGs sending their waste to an LQG under the control of the same person. In terms of the proposed pharmaceuticals rule, the situation isn't analogous. The proposed pharmaceuticals rule was tailored specifically to that industry sector and the specific nature of the hazardous pharmaceutical waste streams. This final generator rule applies to all generators across many different industries and sectors and thus, we have determined that the VSQG consolidation should be done at an LQG under the control of the same person (i.e., same company). 

Section 3.3.4 - Conditions for VSQG


Summary: 
(a) Most commenters did not comment specifically on the VSQG conditions but a few agreed with the proposed conditions for VSQGs to consolidate at an LQG under the same control (70, 182). One state suggested the VSQG maintain a simple shipping log (108). Another state recommended that EPA require the generating and receiving facilities to maintain copies of all shipping papers, as well as inventory records documenting the transfer, especially since these materials may still be regulated by DOT (214). Hennepin County (Minnesota) stated that VSQGs should be recorded to maintain records at the generator site showing the amount of hazardous waste generated and shipped to the LQG (229). MCPA also recommended EPA consider requiring VSQGs to keep some type of record documenting the transfer of their waste and explained how they require VSQGs to retain the "consignment receipt" for the waste which is signed by the VSQG collection facility when it receives the waste. MCPA has found it to be a nearly de minimus burden on the VSQG and a very important tool for waste tracking and liability assessment and resolution (232). A California county suggested an annual log be kept for wastes shipped from each CESQG to the LQG (250). 
(b) Marking and Labeling Containers. One commenter specifically supported the proposed labeling and marking of containers for transporting and storing CESQG waste being sent to an LQG (236). Several commenters stated that having two "systems" of labeling was confusing and unnecessary and discussed other ways to distinguish the VSQG waste from the LQG's own waste when it is consolidated. Specifically, the records that an LQG are required to keep should be sufficient to distinguish VSQG waste from the LQG's own waste. In addition, there will likely be situations where an LQG supplies the labels to the VSQG, so using one common label is reasonable (131, 134, 182, 217, 219, 220, 232). Some commenters said that the numerous conditions, including labeling at the VSQG, are too prescriptive and would limit the use of this option (77, 129, 131, 168, 233, 262). Some of these commenters specifically stated that having VSQGs label their containers with the hazardous waste code is a big disincentive since they don't have the expertise onsite to classify their wastes and aren't required to do so under the current RCRA regulations (77, 224, 262). One state and ASTSWMO asked that EPA clarify where the marking and labeling should occur at the CESQG and suggested it should occur at the point of generation, rather than at the point a decision is made to send it to the LQG (116, 217). Another state asked EPA to require the use of DOT shipping names while the HW is accumulating onsite, not just during transport, which will promote later compliance with transport labeling requirements (145). ASTSWMO noted that one state did not believe the label generally has enough information for the LQG to make a full waste determination and suggested requiring the CESQG generate a waste profile sheet prior to transferring to the LQG or use waste acceptance protocols utilized by commercial TSDFs. This could also be helpful if the LQG was not as familiar with the CESQG's individual waste streams, such as in the academic laboratory setting (217). 
(c) A commenter suggested we specify that a CESQG can transport their own waste to an LQG if DOT requirements are met (60). Another state said it would be appropriate to require the vehicle that the waste be transported in be owned and under the control of the same person so there is a straight path to liability and that there is some type of financial assurance in place in case of an accident in transit (223). One state and ASTSWMO noted that the proposed rule does not require use of a HW transporter and asked EPA to consider the potential issues associated with having hazardous waste transported by a potentially less knowledgeable or accountable person or company (116, 217). Another state agency asked for clarification that a generator could use a third party hazardous materials transporter if the waste is not manifested (214). MCPA recommended limiting the entities who may transport the VSQG hazardous waste to employees of the VSQG and LQG under the control of the same person. MCPA suggested that if EPA did not limit the transportation in this way, "fly-by-night" transporters could be attracted to this market with substantial risk of improper handling, misdirected shipments, or lack of accountability (232). Another state suggested requiring the CESQG to use a uniform hazardous waste manifest when shipping to the LQG under the control of the same person (217). 
(d) One association could not identify where their members would benefit from the consolidation provision and could not determine where any savings would be realized. This association thought a VSQG would still have to package, label, and manifest the waste for shipment to the affiliated LQG (192). 
(e) One commenter noted that the generating CESQG site should be required to be identified as the original generator through some means, such as an EPA ID number (196). Another commenter asked for clarification on whether it is the EPA ID number for the VSQG that is required under proposed §262.14(a)(4)(viii)(B)(4) (206). One state stated that it would be beneficial to have CESQGs also notify for tracking purposes and another state stated their preference that all CESQGs notify the state (217, 248).

EPA Response: 
(a) EPA has determined that the recordkeeping requirements for VSQGs consolidating at an LQG under the control of the same person should be done and maintained by the LQG. LQGs already have recordkeeping requirements under RCRA and this will not be new to them, whereas VSQGs do not have any federal recordkeeping requirements as part of the current RCRA program. Since the VSQG-LQG consolidation is simply an option for these generators, EPA is seeking to strike an appropriate balance between proper environmental management and reasonable recordkeeping burden. Otherwise, VSQGs could just continue to manage their hazardous waste by sending it to a non-hazardous landfill or combustor. 
(b) EPA agrees with the commenters who recommended against labeling "VSQG" waste differently than waste at the LQG. EPA has determined that using a different label would not improve management of the hazardous waste at either generator. Therefore, EPA has decided that labeling the VSQG's waste to be consolidated with the words "Hazardous Waste" (along with an indication of the hazards  -  see Section 5.1 for comments on the other labeling requirements) is sufficient under the consolidation provision. As explained in Section 5.1 of this EPA Response to comments document, we are not requiring all of the marking and labeling requirements that were originally proposed. Specifically, we are not requiring the hazardous waste code be added until later at the LQG prior to shipment off-site. EPA has determined that requiring more information be on the containers at the VSQG would be counter-productive since VSQGs currently do not have to label at all. 
(c) EPA has determined that since the consolidation provision is limited to VSQGs consolidating at an LQG under the control of the same person, we do not have to limit who is allowed to transport the VSQG waste to the LQG and the uniform hazardous waste manifest is not required. The same person who has control over the VSQG and LQG under this consolidation provision could be liable for improper hazardous waste management, so the VSQG and LQG have strong incentives to ensure that the waste arrives safely to the LQG. Since VSQGs are not required to manifest or use a hazardous waste transporter under the current regulations, we were conscious about only adding requirements that were necessary under the new consolidation provisions because if the requirements were too burdensome, VSQGs would not use the consolidation provision. Furthermore, any applicable DOT requirements continue to apply. 
(d) The commenter is confused about the parameters of the VSQG consolidation provision. The VSQG would only need to label their waste with the words "Hazardous Waste" for shipment to an LQG under the same control. The waste would not need to be manifested nor would it have to go by hazardous waste transporter. Any applicable DOT shipping requirements would continue to apply. 
(e) Under the federal RCRA program, VSQGs do not have to obtain an EPA ID number. While some states require this, that is a more stringent requirement. EPA is not requiring VSQGs to obtain an EPA ID number to participate in the consolidation program. However, because this is a less stringent provision than the current federal program, states will have to adopt the consolidation provisions to be effective in a particular state and they have the option of being more stringent. Thus, a state could adopt the consolidation program and require VSQGs to obtain EPA ID numbers if they so wish. 

Section 3.3.5 - Conditions for LQGs


Summary: 
(a) Most commenters did not comment specifically on the LQG conditions for consolidating VSQG waste but a few were supportive of the conditions EPA proposed for the LQGs consolidating VSQG waste, including notification, recordkeeping, labeling, managing the incoming VSQG waste in compliance with its LQG status, and reporting the VSQG waste on its biennial report (134, 181, 217, 220). MPCA was specifically supportive of recordkeeping, labeling and managing the incoming VSQG waste in compliance with the requirements otherwise applicable to the LQG's own hazardous waste (232). 
(b) Notification: Some commenters thought notification was not necessary and duplicative since the consolidation would be included on the LQG's biennial report or the information could be collected from the LQG's records that they are required to maintain on-site (73, 137, 213). One commenter urged EPA to make this a one-time notification or include the notification as part of re-notification or biennial reporting (88). Other commenters argued that the numerous conditions, including notification and recordkeeping by the LQG, were burdensome and would limit the use of this option or present challenges to the LQG (77, 127, 168, 212, 262). One state believes that having the LQG submit the Site ID form with the CESQG information would make compliance and enforcement unnecessarily difficult (189). A couple commenters expressed their opinion that the notification requirement would be extremely burdensome to comply with within 30 days, especially for remote field locations (213, 214, 216). ASTSWMO noted some individual state comments about the notification requirements, including that regulators would not be able to understand the complete picture because only LQGs are required to notify (217). One commenter asked for clarification about whether notification must be made exactly 30 days before the first shipment of CESQG waste to an LQG or at least 30 days before and whether that was 30 calendar or business days (220). MCPA strongly recommended EPA replace the proposed notification requirement with a non-self-implementing request for approval, such as MN's program. MCPA also recommended that EPA explicitly require the EPA identification number of the VSQG to be included in the records kept by the LQG (232). Another commenter asked for clarification on whether the notification requirement is an update or change of the LQG's form for the CESQG since the requirement seems to require a new CESQG number (240). Re-notification: EPA proposed that LQGs notify using an updated Site ID form 8700-12 within 30 days of a change in the site name, site address, or contact information for a VSQG sending their hazardous waste for consolidation at the LQG. However, some commenters said it was not necessary, particularly in the event of the contact information changing, noting the movement of personnel can occur more frequently than the site name or address changes (163, 182, 217). 
(c) One state commenter suggested that if a LQG consolidates across state lines, they should be regulated to send a copy of their notification form to those state agencies in which the CESQG facilities are located (82, 217). 
(d) One state commenter recommended that EPA include a clear provision that allows the accumulation time clock to start when the waste is received at the LQG site (174).Several commenters requested clarification on the accumulation start date and asked for confirmation that the generator would have 90 additional days to make new disposal arrangements (214, 217). One commenter, in requesting clarification, submitted that the LQG accumulation limits should apply to the CESQG waste on the date that it is received by the LQG (240). One state noted that the receiving LQG is directed to date the hazardous waste containers when they arrive but it is not clear whether they are to obscure the original accumulation start date (248). 
(e) Two associations recommended that this provision requires notification of shipments. Without such notification, they argued that the material could be easily diverted and both first responders and the community at large would be vulnerable to the hazards associated with any diverted waste (132). 
(f) ASTSWMO noted that one state thought the mixing of CESQG waste at an LQG could create a hazardous situation if the wastes are incompatible. This state suggested some level of minimum standards prior to waste acceptance and waste mixing at LQGs (217). 
(g) One commenter requested confirmation that LQGs operating under the consolidation provision would also have to meet the applicable requirements in 40 CFR Part 263 (0284). 
(h) One state noted that there is no explanation of what should happen if an LQG has to reject a load from a CESQG and suggests EPA add a provision for rejected loads (217). 

EPA Response: 
(a) EPA is finalizing the conditions that the LQG must comply with under the VSQG-LQG consolidation provision basically as proposed and thanks the commenters for their support. 
(b) Notification. The Agency has determined notification is necessary in order to communicate to state regulatory agencies and inspectors the origin of the hazardous waste received by the LQG and to ensure the received shipment is managed in compliance with the conditions of the provision. EPA also believes notification by the LQG, rather than notification by the VSQG, is more efficient and less burdensome, because LQGs are already required to submit Site ID forms as part of obtaining a RCRA Identification Number and as part of the biennial reporting process. Additionally, it is more efficient for one LQG to notify on behalf of numerous VSQGs. EPA has clarified that the original notification must be submitted at least 30 days before the LQG receives the first shipment from their VSQG and notes that is calendar days. EPA notes that the information required at the federal level is the VSQG's name, site address, and a contact person. EPA does not require VSQGs to get EPA identification numbers so that is not required at the federal level. EPA disagrees with MPCA's suggestion of requiring state agency approval instead of notification because we limited the consolidation provision to VSQGs and LQGs under the control of the same person. Re-notification: EPA agrees that if the site name and address of the VSQG remains the same and only the contact person's information changes, it is not necessary for the LQG to notify again simply because the contact information for the VSQG changes and we have made that clear in the final regulatory language. Due to the fact that the VSQG consolidation provision is limited to facilities under the control of the same person, the LQG would likely have knowledge of any change in contact information and could provide that to the implementing agencies if necessary.
Recordkeeping. EPA also has determined that recordkeeping is necessary to ensure the VSQG and LQGs operating under the consolidation provision are meeting the conditions of the provision, including the condition that the VSQG and LQG are under control of the same person. Records can also be used to ensure that the hazardous waste from the VSQG is managed according to the other conditions for exemption of this provision, such as the requirement that LQGs are receiving shipments of hazardous waste from VSQGs in quantities commensurate with the VSQG's generator category. This recordkeeping condition can be fulfilled through routine business records, such as a bill of lading, and will not present an undue burden to the LQG. Additionally, the LQG can then use this information to report the hazardous waste from the VSQG on its biennial report forms. 
(c) EPA is not requiring at the federal level that an LQG supply its notification to each state where the VSQGs are located but a state can be more stringent when it adopts the consolidation provision. 
(d) To be clear on the accumulation start date, EPA has included this regulatory language: "If the LQG is consolidating incoming hazardous waste from a VSQG with either its own hazardous waste or with hazardous waste from another VSQG, the LQG must mark each container with the earliest date any hazardous waste in the container was accumulated on site." This will prevent an LQG from starting the accumulation clock over again, which could lead to an endless loop of accumulation. Furthermore, EPA does not require accumulation start dates at VSQGs so we are not requiring original accumulation dates to be obscured but it should be clear the date the accumulation starts at the LQG. 
(e) We are not requiring notification of every shipment from the VSQG to the LQG but instead are requiring the LQG maintain records of shipments for 3 years. These records would need to be accessible to inspectors visiting the LQG.
(f) EPA is not expressly prohibiting mixtures of VSQG waste at LQGs but notes there are regulatory consequences of mixing the waste as explained in § 262.13. Because the VSQG and the LQG are under the control of the same person, there are strong incentives to handle the waste properly and EPA does not expect there to be issues with the LQG mixing incompatibles. If there is a question, the LQG can contact the VSQG.
(g) EPA confirms that LQGs that operate under the consolidation provisions will have to also comply with the applicable requirements of 40 CFR Part 263 if they act as the transporter that is sending the hazardous waste off-site to a RCRA designated facility. However, if the LQG is acting as the transporter by picking up the VSQG waste for consolidation, they would not have to comply with 40 CFR 263 for shipments between the VSQG and the LQG. With respect to the LQG's on-site management of all hazardous waste received from the VSQG, the LQG must comply with the LQG conditions for exemption in §262.17. 
(h) Because the consolidation provision is limited to VSQGs and LQGs under the control of the same person and because the shipments do not require a federal hazardous waste manifest, EPA does not believe there needs to be a procedure for rejected loads. The VSQG and LQG can work together to determine the best means of handling any waste that the LQG can't take. 

Section 3.3.6 - Biennial reporting for consolidation


Summary: 
(a) Several commenters agreed that the LQG should be required to report the hazardous waste received from off-site CESQGs on their biennial report (BR) (125, 189, 232). The RCRAInfo Site ID expert group and Idaho made the following suggestions: a new source code be added that LQGs would use to identify this waste on the Generation and Management (GM) form and the generation quantity should be reported as 0 on the GM form since the waste was not generated at the LQG (125, 189). MCPA requested EPA consider requiring the BR be submitted in duplicate to the authorized state if the state so desires (232).

EPA Response: 
(a) Biennial Reporting. EPA has decided that generators will be required to report on the biennial report hazardous waste they receive from VSQGs by type of hazardous waste. In other words, if an LQG receives the same type of hazardous waste from multiple VSQGs, it only need report the total quantity of that hazardous waste received from all VSQGs. Biennial reporting will enable states and EPA to better understand the additional volumes and types of hazardous wastes managed at an LQG, which will assist in prioritizing compliance assistance. EPA will take the comments of the RCRAInfo Site ID expert group and the states under advisement when it revises the BR instructions to account for the new consolidation provision. If a state wants to require the BR be submitted to them in addition to EPA, they would need to make that a requirement when they adopt the VSQG consolidation provision. 

Section 3.3.7 - No limit on waste received from CESQGs


Summary: 
(a) Two commenters specifically supported the concept that there would be no maximum limit on the amount of hazardous waste received by an LQG from its CESQG facilities. One commenter said that in most instances the amount of hazardous waste would be small (88). MCPA supports the proposed absence of a maximum limit on the amount of hazardous waste the LQG may collectively receive from a VSQG but noted that the maximum amount a facility could receive from an individual VSQG in a calendar year is 1200 kg/year due to the VSQG monthly accumulation limit. MCPA thinks it is important for EPA to explicitly state this limit as some generators might mistakenly think that once they have transferred their hazardous waste to an LQG, they themselves no longer have to count it towards their generator status (232). 

EPA Response: 
(a) Because LQGs currently have no maximum limit on the amount of hazardous waste they can accumulate, and because the regulations that are applicable to LQGs are protective, the Agency has determined there is no need to establish a maximum limit on the amount or types of hazardous waste that an LQG can receive from VSQGs. In fact, we believe the more hazardous waste that is shipped to LQGs, the greater potential for better management, since these hazardous wastes will be managed under the more comprehensive hazardous waste regulations, as opposed to potentially being sent to non-hazardous waste disposal facilities. In addition, the LQG will need to move the VSQG waste off site in a timely manner since the 90-day accumulation limit for the exemption from permitting will still apply. EPA also notes that the VSQG still must count the waste it generates at its site to determine its generator category in accordance with 40 CFR 262.13. Transferring their waste for consolidation at an LQG under the control of the same person does not effect this requirement.

Section 3.3.8 - Enforceability of consolidation provision


Summary: 
(a) One commenter stated that if a typical LQG accepted CESQG waste during a month that it determined it was an SQG, it should not be subject to an enforcement action. This commenter suggested this could be handled by allowing the receiving facility to be either an LQG or SQG (146). MCPA supports EPA statements regarding the enforceability of the consolidation provision but notes that requiring state or EPA Region-specific approval would provide a partial mechanism to address EPA's concern regarding liability of VSQGs sending hazardous waste to a non-compliant LQG. MCPA believes that by requiring the VSQG to make sure the receiving facility has been approved by the state, the VSQG is performing some due diligence on the receiving facility and becoming knowledgeable about its general compliance history (232). 

EPA Response: 
(a) In terms of an enforcement action related to the VSQG-LQG consolidation provisions, EPA agrees that there shouldn't be an issue if the LQG continues to operate as an LQG and manage the VSQG waste received under the conditions for exemption in §262.17. As noted above, EPA has determined at this time to limit the consolidation provision to VSQGs sending their waste to an LQG under the control of the same person. States can be more stringent in how they implement the program and can add a state approval requirement if they see fit.

Section 3.3.9 - Interstate shipments


Summary: 
(a) One commenter stated that VSQG hazardous waste from states with more stringent programs should be allowed to be sent to a consolidator LQG, as long as the waste complied with the VSQG state requirements while in that state's boundaries. This commenter stated that EPA should specify that more restrictive states cannot prevent VSQGs from using consolidator facilities in other states that have adopted those provisions because this in effect constitutes "interstate commerce" and thus the federal rules should take precedence over any state rule (107).Several commenters stated that EPA was incorrect in stating that transit states could impose more stringent requirements on CESQG waste being transported through their state and asked EPA to clarify that transit states cannot impose requirements on CESQG waste merely passing through their state for consolidation at an LQG facility (168, 188, 232). On the other hand, one state agreed that CESQGs who elect to transport waste to an LQG under the control of the same person would need to coordinate when the waste is transported either through or to another state. This state noted that one simplified approach, albeit more restrictive, would be to limit CESQG consolidation to LQGs within the same state (217). Other commenters noted that consolidation could occur across state lines and if states have differing requirements for VSQGs, it can be very confusing and challenging to comply with state regulations. These commenters asked EPA to clarify and address these issues (127, 132). The American Trucking Association recommended that states self-identify whether they adopt EPA regulations to allow shipments between VSQGs and LQGs so the information is readily accessible to generators and shippers (283). 
(b) Some commenters noted that these materials need to safely and securely managed, especially during transport and that proper EPA Response to accidents could be a concern if seasonal or temporary workers put containers in private vehicles for transport to a consolidation location (127, 132). One commenter also noted that this could lead to diversion for illicit purposes (127). 

EPA Response: 
(a) Under the RCRA program, authorized states can be more stringent than federal regulations and are not required to adopt federal regulations that would be considered less stringent than current federal regulations. The consolidation provision being finalized today offers more flexibility to VSQGs and LQGs than under current federal regulations and would be considered a less stringent rule. Thus, some states may choose not to adopt this regulation. The result is that the VSQG/LQG consolidation provision can only work for those VSQGs and LQGs that are located in the same state or in different states that all have adopted this regulation. We do not have a basis under RCRA to require states to adopt a new federal regulation that is less stringent than the current federal regulation because states may always choose to have more stringent regulations than the federal regulations. Moreover, this scenario presents a common issue that arises in the RCRA program where authorized states do not all regulate the same hazardous waste in the same manner even if the waste may be transported as "interstate commerce" through multiple states. The fact that interstate waste shipments may constitute interstate commerce is not a basis by which EPA could require all states to adopt a new federal regulation that is less stringent than the current federal regulation. Regulated entities have often had to comply with different regulations in different states for interstate shipments as a result of RCRA's authorized state program system. In addition, as part of EPA's implementation of today's final rule, we plan to make resources and tools available on our website to the public including a map that tracks state adoption of the new provisions. 
(b) As noted above, because EPA has limited the VSQG consolidation provision to VSQGs and LQGs under the control of the same person, EPA has determined that the facilities will have strong incentives to ensure the proper handling and transport of the VSQG waste to the LQG. The LQG is required to maintain records of the shipments for 3 years. EPA has determined these requirements are sufficient for environmental protection without being too much of a regulatory burden that would discourage use of the consolidation provision. 

Section 3.4 - Biennial report for recyclers who do not store


Biennial report for recyclers who do not store

The Agency proposed that owners or operators of facilities that recycle hazardous waste without storing them before they are recycled submit a biennial report. From experience with the RCRA program, the Agency is aware of situations where a recycling facility that does not store prior to recycling, or that received manifested hazardous waste but had a subsequent exemption, may not always submit a biennial report. Hence, both EPA and the states have an incomplete understanding of what may be occurring with the management of hazardous wastes. 
Most commenters supported EPA's proposal (0085, 0125, 0134, 0174, 0178, 0181, 0185, 0206, 0217, 0229). Several stated that requiring submittal of this information would close an important information gap and provide additional information on recycling than they currently have, which is mainly just the recycling at permitted commercial TSDs. One commenter mentioned that having such information reported by the facility may serve useful in some contexts where a generator in their state has sent recyclable materials to an out-of-state facility (0174). Another commenter stated, "Collecting this information would give a better overall picture of the amount and type of waste recycled, as well as allowing oversight of these activities. It is important for States to know where these types of facilities are and how much wastes they manage." (0217)

Response: The Agency agrees with the reasons provided by those commenters that support the proposed change to the regulations. 

A few commenters (0219, 0240, 0263) were against the proposed change. For example, one commenter stated, "Based on the Biennial Report Instructions, the generator already is required to report on all such hazardous waste it sends off-site to a recycler that does not store it prior to recycling. Form GM of the Biennial Report Instructions indicate that although "waste recycled, without prior storage, only in an on-site process subject to regulation under 40 CFR §261.6(c)(2)" is not required to be reported on the biennial report, there is no exception from reporting the amount of such recyclable hazardous waste when it is sent off-site. Because the generator will report the amount of recyclable hazardous waste it sends off-site to a recycling facility that does not store it, EPA should have the information it claims it needs. Thus, we do not see a need for requiring the recycling facility to report on the hazardous waste it receives in a biennial report, and requiring such reporting could lead to redundant accounting." (0219)

Response: The Agency believes that this proposed change is important and necessary. The generator may not know whether the receiving facility is storing or not storing its hazardous wastes prior to recycling. Similarly, many generators send their recyclable wastes first to a transfer or consolidation facility and then to a recycling facility. In such cases, the Agency is unable to use the generator's' GM form to identify the recycling facility. Therefore, without requiring this information directly from the recycling facility, states and the Agency have an incomplete understanding of what the receiving facility is doing, including how much hazardous wastes of different types are being recycled. 

Similarly, one commenter saw no benefit to the environment of this added paperwork requirement with the associated opportunity for another possible TSD-mandate noncompliance (late or missed reports), particularly when biennial reports are only required by LQGs at present. (0263)
Response: The Agency disagrees with this commenter. First, recycling facilities that store prior to recycling are already required to submit a biennial report. Second, for oversight purposes, the Agency and states need to understand the scope and magnitude of recycling nationally. The Agency sees no reason why a facility that does not store prior to recycling hazardous waste should not have to submit a biennial report, particularly if this facility is receiving large amounts of hazardous waste. Third, the Agency believes the values and benefits of an affected facility completing a biennial report exceeds the costs of completion. Otherwise, the Agency would not have proposed this change.

A few commenters were unclear about the scope of reporting and what types of facilities had to submit a biennial report (0240, 0217). They commented that: 
The proposed RCRA Improvement Rule would appear to require facilities that recycle hazardous waste without accumulating or storing it to submit biennial reports under 40 C.F.R. §265.75. EPA reasons that since these facilities receive hazardous waste using a hazardous waste transporter and hazardous waste manifest they should be treated no differently than a permitted TSDF with interim status. Although we are not absolutely sure what type of facility is intended to be affected by this requirement (and would appreciate more clarification on this topic), if the requirement is meant to apply to a re-claimer or recycler of used solvent under the conditional exception to definition of solid waste rule, 80 Fed. Reg. 1694 (Jan. 13, 2015) or to used solvent wipes, 78 Fed. Reg. 46448(July 31, 2015), it may affect some of FPA's members. A facility that is reclaiming spent solvent under the conditional exclusion for certain types of solid wastes from other facilities under common control is not "managing or treating a hazardous waste" for disposal, and therefore this situation is not analogous to a TSDF." 
Therefore, one of the commenters objects to the inclusion of such activities in biennial reports or filing reports solely to cover such activities because it sees little or no benefit from the requirement  -  just another potential for a recordkeeping violation. (0240)
Response: To clarify, this requirement is not applicable to a re-claimer or recycler of used solvent under the conditional exception to definition of solid waste rule.

Another commenter asked whether this requirement would apply to those facilities that have on-site distillation units that recycle their own spent solvents daily without storing it?(0217)
Response: This requirement is not applicable to generators that have on-site distillation units that recycle their own spent solvents daily without storing it. 

Another commenter recommended that EPA revise this proposal to separately require facilities that recycle hazardous waste without storing it to first obtain an EPA ID# from their authorized state or EPA, as applicable, and then subsequently to complete and submit the Biennial Report. (0229)
Response: EPA does not agree with this recommendation because current regulations already require receiving facilities accepting manifested hazardous wastes to have a RCRA ID. If not, they are out of compliance with RCRA regulations and so are the transporters who cannot deliver regulated hazardous wastes without the facility having a RCRA ID.

One commenter mentioned that if the proposed rule is finalized, significant changes would be required by EPA including the Biennial Report instructions and forms (adding codes) and the RCRAInfo database. There are also changes the States would have to make including State-specific instructions and forms as well as State hazardous waste databases. (0217)

Response: The Agency will update Biennial Report instructions and forms and the RCRAInfo database as a result of this rule.

Two commenters (0214 and 0276) sought clarification to this proposed revision. 
One sought clarification about how recycling facilities that receive waste from CESQGs must report. Some CESQGs use manifests, while others use bills of lading to ship hazardous waste. (0214)
Response: VSQGs (formerly called CESQGs) are allowed to send their hazardous wastes to a RCRA permitted recycling facility or to a recycling facility under an authorized state program without having to manifest its hazardous wastes. (See 40 CFR 261.5 (g)(3) under the former regulations and 40 CFR 262.14 (a)(5) under the new regulations.) States also may be more stringent and require CESQGs to use a hazardous waste manifest when shipping their hazardous wastes to either a RCRA permitted recycling facility or to a recycling facility under an authorized state program. Under the existing and new rules, recycling facilities receiving either manifested hazardous wastes (as in the case of SQGs and LQGs) or non-manifested hazardous wastes in the case of VSQGs are required to complete and submit a biennial report. These rules apply to recycling facilities that store or do not store prior to recycling. 

Another commenter sought clarification on the following: 
On p 57993 at 262.13(c)(3) the term "prior storage" is used in the "on-site" recycling context. ("...is recycled without prior storage...") Typically this has always meant storage/accumulation of any length of time prior to recycling. But that is at odds with what EPA considers as "prior storage" in situations where off-site recycling is to take place. For example, RO 11365 suggests a few hours of storage may not constitute "prior storage," and RO 11411 indicates that some EPA regions allow 24 hours. [FOOTNOTE 29 ATTACHES HERE] Should not the on-site storage for a few hours of a hazardous waste prior to on-site recycling also not constitute "prior storage?" It is noted that, unlike on-site recyclers, off-site recyclers need to obtain a TSD permit for "prior storage", but this should not be the basis for allowing off-site recyclers to have a different measure of what constitutes "prior storage" than on-site recyclers. This is important when using the proposed 262.13(c) to determine whether a waste destined to be recycled on-site needs to nevertheless be counted for purposes of determining generator category. (0276)
Response: The commenter raises good points. As seen by the two RCRA Online documents identified above, the Agency has no definitive set time as to what constitutes "prior storage" prior to recycling and has deferred this issue to the regions and states as being a site-specific decision. However, rules already exist for on-site recycling. SQGs and LQGs have either 180 days or 90 days to recycle on-site the hazardous wastes they generate consistent with the 180 day and 90 day waste accumulation provision. Otherwise, the generator may be operating without a permit. Similarly, rules already exist for what to count regarding the on-site reclamation of a regulated hazardous wastes; i.e., count once per year for same wastes. 

Section 3.5 - Miscellaneous part 261 comments


Comment: One commenter stated that the revision to 40 CFR 261.33(e), while logical in the context of elimination of the reference to §261.5 (which is being repealed), ignores other changes made to the tables in sections (e) and (f) since original promulgation. Specifically, the wording of the introductory paragraphs are left to state that each waste is assigned the acute hazardous waste (H) identifier (in the case of §261.33(e)) or the toxic waste (T) identifier (in the case of §261.33(f)). The proposed rule appears to delete the existing "Comment" and the text "These wastes and their corresponding EPA Hazardous Waste Numbers are:", both of which are critical to use and interpretation of these listings. Please clarify that the changes proposed are only to the first paragraph of the introductory text of paragraphs (e) and (f). (0078)
One commenter referenced 261.33(e) introductory paragraph and asked if EPA intended to remove the comment and "These wastes and their corresponding EPA Hazardous Waste Numbers are:" (0082) 

One commenter referenced 261.33(f) introductory paragraph and asked if EPA intended to remove "unless otherwise designated" (it appears that some wastes in the table are otherwise designated), the comment, and "These wastes and their corresponding EPA Hazardous Waste Numbers are:" (0082) 
One commenter referenced 261.33(e) & (f) and asked if comment/notes in 40 CFR still provided? Toxic only if no lettering otherwise (T), (R), (I), (C) combinations. Are the 261.33(f) listings now all (T)? Or is acetone now listed for toxicity in addition to ignitability? Used acetone would be expected to be more toxic than unused acetone, so why is there no corresponding change to the F003 listings? (0214)

EPA Response: EPA is not deleting the comment or the introductory language to the tables containing the P-lists and the U-lists as part of this change. The 5 asterisks (* * * * * ) in the proposed regulatory text indicate that the remainder of the section of regulatory text is to be left unchanged. Thanks to comments, EPA did determine that it accidentally proposed to delete the words "unless otherwise designated" from the language of 261.33(f) and is restoring them in the final rule. 

Comment: 261.1(a)(1) You missed a conforming change here to remove "establishes special management requirements for hazardous waste produced by conditionally exempt small quantity generators and" from the description of contents of part 261 subpart A. (0082) 
EPA Response: Thank you for your comment. EPA is correcting this oversight in the final rule. 

Section 4 - Revisions to Existing Part 262


Comment: One commenter stated that the new requirements for CESQGs, SQGs, and LQGs in sections 262.14 through 262.17 add labeling, reporting, and recordkeeping requirements that broaden the specificity of requirements and require full compliance to be classified a generator, thereby adding more ways that a generator could find itself subject to TSD requirements. The commenter stated that the reporting and recordkeeping requirements should remain focused only on LQGs, since they generate the most hazardous waste. The commenter stated that EPA should withdraw all of the added recordkeeping requirements and withdraw the applicability of TSD regulations in the case of noncompliant generators. (0263)
EPA Response: In this final rule EPA is not adding more ways that a generator could find itself subject to TSD requirements. The standards in section 262.34 (being replaced) are all conditions for exemption from permitting under the long-standing generator program regulations and the bulk of the conditions found in the new §§ 262.14 - 17 are simply reorganized from §§ 261.5 and 262.34. These requirements include some labeling, reporting, and recordkeeping requirements. EPA disagrees with the commenter's suggestion and is finalizing the framework for the generator regulations mostly as proposed.

Section 4.1 - Revisions to Purpose, Scope, and Applicability (262.1 and 262.10)

(a) Comment: One commenter stated that EPA add the following language to 262.1 or to the definition of VSQG in 260.10: "A generator that meets the requirements of §262.14 for VSQGs is exempt from all applicable independent requirements for other waste generator categories (i.e., SQG and LQG) regardless of the monthly quantity of waste generated." (0165) 
(a) EPA Response: EPA does not agree with the commenter's suggestion. The commenter suggests that a VSQG would be exempt from independent requirements for other generator categories regardless of the monthly quantity of waste generated, but the generator's category is defined by how much waste is generated in a month so that factor cannot be removed from the determination of which category the generator belongs to (and which independent requirements must be followed). 
(b) Comment: One commenter recommended that EPA clarify the text in 262.10(a)(3) to refer to "hazardous wastes" rather than "wastes" to be more precise about the applicability of the provision. (0174) 
(b) EPA Response: EPA agrees with this comment and is making this revision in the final rule. 
(c) Comment: Some commenters stated that they support the clarification provided by sections 262.1 and 262.10. (0178, 0248)
(c) EPA Response: EPA agrees with the commenters that these sections are useful and is finalizing them with some changes for further clarity and precision. 
(d) Comment: Commenters stated that they support the proposed new section 262.10(a)(3) that specifically prohibits generators from sending hazardous waste to facilities that aren't "designated facilities." (0085, 0178, 0185, 0217, 0229) Commenters stated that it fills an important gap in the RCRA regulations by stating this clearly and improves the ability of authorized states to enforce this provision. (0178, 0217, 0229) 
(d) EPA Response: EPA agrees with the commenters and in finalizing § 262.10(a)(3) as proposed. 
(e) Comment: One commenter stated that they are not clear about the meaning and significance of the word "unless" in proposed section 262.10(a)(1). (0178) 
(e) EPA Response: In response to comment on this section, EPA has revised it in the final rule, removing the word "unless" and other confusing wording. 
(f) Comment: One commenter stated that section 262.10(g)(1) uses the term "applicable requirement" twice and asked if it should be "independent requirement" instead. (0178) 
(f) EPA Response: EPA has revised this paragraph in the final rule and part of the revisions include replacing "applicable requirement" with "independent requirement." 
(g) Comment: One commenter found proposed 262.10(g)(2) to be confusing and did not understand the regulatory effect of the section, but was concerned that it would restrict the enforcement options available to authorized states at generators of hazardous waste. (0178) 
Some commenters expressed concern about the changes to section 262.10, particularly the language in proposed sections 262.10(a)(1) and (2) and section 262.10(g)(2) with regard to limiting the enforcement options for authorized states because EPA explicitly states that these facilities would be "a facility that stores hazardous waste." (0178, 0196, 0281) Commenters were concerned that this language would preclude the use of informal actions for minor violations of conditions for exemption and may have to cite the generator for a violation of operating a hazardous waste storage facility without a permit, which may not be appropriate to the severity of the actual violation. Commenters also stated that the regulations should be written reflect the generation of hazardous waste as the norm and stated that the exemptions and conditions apply not to generators, but to collectors and treaters. Commenters also were concerned that the regulations could conflict with state waste violation classification schemes. (0178, 0196, 0281)
Some commenters stated that the proposal is draconian in its approach to the classification of independent requirements and conditions for exemption and that it is an attempt to dictate enforcement policy through a rulemaking. The commenters added that the rule mandates an enforcement result that even the most aggressive enforcement official likely would not take in most circumstances. (0219) 
(g) EPA Response: EPA has revised § 260.10(g) in the final rule to be more clear and to state in a more straightforward manner what the plain meaning of the section is  -  that is, that because the conditions for exemption in part 262 are part of exemptions, noncompliance with the conditions means that the facility loses the exemption. Any violations would then be considered violations of the permit, interim status, and operations requirements in parts 124, 264 through 267, 270, and in section 3010 of RCRA instead. 
EPA does not consider these revisions to the regulatory language to be a change to the RCRA generator program because the regulations that were previously in §262.34 and the provisions for VSQGs in 261.5 were always conditions for exemption from storage facility permit, interim status, and operating requirements and have always worked in the same way that we explain in the proposal and final rule. For violations of generator regulations, regulatory agencies retain full enforcement discretion authority to determine whether an enforcement action is warranted in response to any given finding during an inspection and if so, what enforcement tools, including notices of violation, civil and criminal complaints, penalties and injunctive relief, are appropriate to address the detected violations. The revisions to the regulatory text in this rule do not mandate that regulatory agencies pursue enforcement actions when the previously would have exercised enforcement discretion and do not mandate the charging and penalization of every violation of regulatory requirements that legally may result when a generator loses its exemption if that action would be disproportionate to the seriousness of the generator's violations. 

Section 4.1.1 - Defining and listing independent requirements and conditions of exemption


(a) Comment: Some commenters agreed with the proposal to define "independent requirement" and "condition for exemption." (0085, 0127, 0134, 0145, 0159, 0178, 0185, 0217, 0223, 0248, 0257) Commenters stated that they agree that this is how the generator regulations are organized and that this change will be a great help by explaining which requirements are independent requirements and which are conditions and improve compliance. (0223, 0257) 
(a) EPA Response: EPA agrees with the commenters and is including these definitions in the final rule.
(b) Comment: One commenter agreed with the concept of defining these terms but thought that the proposed definitions were confusing and legalistic and suggested EPA use language that would be more understandable to the average generator. (0134) Some commenters stated that the definitions and the proposed new language in 262.10(g) is confusing. (0154, 0160, 0174, 0217, 0224, 0232)
(b) EPA Response: EPA has not made significant changes in the final rule to the definitions in the proposed rule as they succinctly and accurately describe the difference between independent requirements and conditions for exemption where a more narrative approach would be less succinct. However, EPA has made an effort to explain more clearly in the preamble to the final rule what the significance is of the definitions and how they operate within the generator framework. EPA has made revisions to the language in §262.10(g), most notably § 262.10(g)(2) to clarify what it is saying about noncompliance with conditions for exemption as compared to independent requirements. EPA's revised language reduces references to other parts of the regulations and uses plainer English to describe how noncompliance with conditions for exemption is viewed by the Agency. 
(c) Comment: One commenter stated that the definitions of "independent requirement" and "condition for exemption" should be in § 260.10 rather than § 262.1. (0217)
(c) EPA Response: EPA disagrees with this comment and is finalizing these definitions in § 262.1. The definitions refer to terms that are specific to the generator regulations in part 262 and are only applicable in part 262 and therefore are best defined in that part, closest to the regulatory text that uses them. 
(d) Comment: Some commenters agreed with the proposal to state explicitly that all generators must comply with independent requirements and generators that accumulate hazardous waste must comply with conditions for exemption. (0085)
Some commenters agreed with EPA's proposal to revise section 262.10(g) to make clear the regulatory consequences of not complying with the generator regulations, stating it is useful. (0134, 0185, 0248) 
One commenter agreed with EPA's changes to make the framework more clear to generators as long as no substantive modifications are made to actual requirements, limits, and exemptions imposed upon and afforded to VSQGs. (0253) 
(d) EPA Response: EPA agrees with the commenters and is finalizing these pieces of the proposal in the final rule, with some changes, notably to § 262.10(g)(2), to further clarify the information in that sections regarding consequences of noncompliance with conditions for exemption. EPA also agrees that the changes made to the regulatory text in this section do not represent a change to the RCRA program, but merely clarify how that program works in the regulations themselves. 
(e) Comment: One commenter stated that the introduction of the terms "independent requirement" and "condition for exemption" is unlikely to enhance understanding of the requirements. (0078, 0174, 0217) A commenter stated that the distinction between these types of requirements is already transparent to the regulated community. (0078)
(e) EPA Response: EPA disagrees with the commenters and has determined that a significant number of generators will gain understanding about how the generator rules are designed and the difference between independent requirements and conditions for exemption by including them in the regulations, as we proposed. Together with the descriptions of the program in the preamble, EPA believes these changes will inform generators more fully of their responsibilities and clear up confusion on this topic that regulated entities have expressed to EPA during the implementation of the program. EPA believes that generators should be aware of the legal consequences of noncompliance, which is what the addition of the definitions and the revisions to § 262.10(g) accomplish. 
(f) Comment: Some commenters opposed the proposal or expressed concern about the changes to section 262.10, particularly the language in proposed sections 262.10(a)(1) and (2) and section 262.10(g)(2) with regard to limiting the enforcement options for authorized states because EPA explicitly states that these facilities would be "a facility that stores hazardous waste." (0116, 0178, 0196, 0217, 0232, 0281) Commenters thought that violations of generator conditions should only result in violations of the next higher level of generator status, not violations of TSDF standards and that the choice of whether to charge those violations be up to the enforcement officials for each case. (0113, 0131, 0219) Commenters were concerned that this language would preclude the use of informal actions for minor violations of conditions for exemption and may have to cite the generator for a violation of operating a hazardous waste storage facility without a permit, which may not be appropriate to the severity of the actual violation, instead of having the choice to do so. Commenters noted that the new language may be seen as draconian by third parties and misinterpreted. Commenters also stated that the regulations should be written reflect the generation of hazardous waste as the norm and stated that the exemptions and conditions apply not to generators, but to collectors and treaters. Commenters also were concerned that the regulations could conflict with state waste violation classification schemes. (0116, 0178, 0196, 0217, 0232, 0281) One commenter stated the concern that this framework would lead to generators drawing the conclusion that complying with a condition for exemption is more important than complying with an independent requirement, when the independent requirements are critical components of the program. (0232)
Some commenters stated that this approach calls into question the important ability of the implementing agency to focus appropriate enforcement based on an understanding of a facility's history. (0128, 0129, 0131, 0188, 0219, 0225, 0263) Some commenters stated that the proposal is draconian in its approach to the classification of independent requirements and conditions for exemption and that it is an attempt to dictate enforcement policy through a rulemaking. The commenters added that the rule mandates an enforcement result that even the most aggressive enforcement official likely would not take in most circumstances and that EPA does not in its proposal discuss using prosecutorial discretion in making penalties that are proportional to noncompliance. (0113, 0168, 0219, 0260) Some commenters stated that state enforcement officials do not need this new regulatory language as they do a good job enforcing the regulations. (0160) 
(f) EPA Response: EPA has revised § 260.10(g) in the final rule to be more clear and to state in a more straightforward manner what the plain meaning of the section is  -  that is, that because the conditions for exemption in part 262 are part of exemptions, noncompliance with the conditions means that the facility loses the exemption. Any violations would then be considered violations of the permit, interim status, and operations requirements in parts 124, 264 through 267, 270, and in section 3010 of RCRA instead. 
EPA does not consider these revisions to the regulatory language to be a change to the RCRA generator program because the regulations that were previously in §262.34 and the provisions for VSQGs in 261.5 were always conditions for exemption from storage facility permit, interim status, and operating requirements and have always worked in the same way that we explain in the proposal and final rule -- the standards in former § 262.34 have always been conditions for exemption that apply to generators and it would not be appropriate to alter the structure of the regulations to make these just apply to collectors and treaters. For violations of generator regulations retain full enforcement discretion authority to determine whether an enforcement action is warranted in response to any given finding during an inspection and if so, what enforcement tools, including notices of violation, civil and criminal complaints, penalties and injunctive relief, are appropriate to address the detected violations. The revisions to the regulatory text in this rule do not mandate that regulatory agencies pursue enforcement actions when the previously would have exercised enforcement discretion and do not mandate the charging and penalization of every violation of regulatory requirements that legally may result when a generator loses its exemption if that action would be disproportionate to the seriousness of the generator's violations.
Regarding how the revised language is seen, EPA has addressed this concern by emphasizing in the preamble to the rulemaking the point that regulatory agencies retain full enforcement discretion in taking enforcement actions. EPA does not think generators would be reasonable to infer that the independent requirements are less important than conditions for exemption because, as the commenter stated, they are a critical piece of the generator regulations. The distinction between the types of requirement illustrates not importance, but simply the legal consequences and mechanism in the case of noncompliance. EPA has heard in the comments from some states implementing the RCRA program that this is how they view the operation of the regulations and that having the regulations more clearly laid out will be helpful in implementation of the regulation and communication with generators. Some states may need to adjust their practices to account for the revisions to the language of the generator regulations, but the added descriptions in the preamble about enforcement discretion remaining unchanged were partially a result of comments from states concerned about whether EPA was intending to limit that discretion, which EPA is not. 
(g) Comment: Some commenters opposed the revisions to section 262.10, including the distinction between "independent requirements" and "conditions for exemption" and the edits to 262.10(g), stating that the changes would fundamentally shift the focus of enforcement against hazardous waste generators and would make it so enforcement officials would be forced to bring an enforcement action for an unpermitted TSDF against a generator for relatively minor violations of conditions for exemption. Commenters argued that all standards should be independent requirements. (0077, 0087, 0113, 0120, 0128, 0129, 0131, 0168, 0188, 0192, 0219, 0220, 0224, 0225, 0240, 0262) Some commenters stated that the need for these provisions has not been proven and that the cumulative burden is unacceptable. (0131) Some commenters stated that these revised regulations are confusing. (0188) The commenters stated that this is disproportionate considering the potential violations and that it would lead to an excessive number of violations and unreasonable penalties, resulting in high risk and uncertainty for the generators. (0077, 0087, 0113, 0126, 0129, 0154, 0192, 0200, 0212, 0219, 0224, 0225, 0260, 0262, 0263) Commenters added that generators are attempting to comply with the standards in part 262 and are easily distinguishable from unpermitted TSDFs. Commenters argued that EPA could always enforce against flagrant non-compliers as TSDFs and that adding language will mandate stricter enforcement and some commenters suggested that EPA modify the language in 262.10(g) to state that noncompliance may lead to failure to maintain the exemption. (0077, 0128, 0212) Commenters stated that this set up of the regulations may mean that a VSQG violating the labeling requirement in the consolidation provisions or an SQG violating a condition would have to then comply with all the regulations for a TSDF or be subject to fines for violating each one or even comply with the next highest generator category, both of which would have high costs associated with them and asked if this was EPA's intention. (0113, 0120, 0128, 0131, 0154, 0168, 0192, 0200, 0212, 0219, 0220, 0224, 0225, 0233, 0240, 0260, 0262) One commenter stated that EPA seems to go out of its way in the proposal to point out that any violation could lead to a generator being an unlicensed TSDF, which could be devastating to the retail sector. (0232) Commenters stated that the proposed framework does not acknowledge the differences in risks present at different facilities and clashes with basic fairness. (0200, 0240) One commenter stated that the mere possibility of penalties that bear no relation to potential noncompliance could discourage investment in ventures that generate hazardous waste or make landlords reluctant to rent to such ventures. (0168) Some commenters stated that EPA's approach in this rulemaking to independent requirements and conditions for exemption is unlawful and contravenes the authorizing statute, Congressional intent, and the Constitution under the Due Process and Excessive Fines Clauses. Commenters stated that the RCRA statute makes it clear that permitting was never meant to apply to generators by distinguishing between standards for each in section 6922 and 6924. Commenters argued that the proposal violates the Due Process and Excessive Fines Clauses because there is little doubt that the penalties or other consequences of violation of a condition would be viewed as "grossly disproportionate to the gravity of a defendant's offense" for many of the conditions, which the Supreme Court stated was not allowed per U.S. v. Bajakajian, 524 U.S. 321, 334 (1998). (0168, 0192, 0200, 0219, 0260, 0262) Some commenters suggested that this frame work would result in noncompliant generators having to apply for TSDF permits as a result of their violations, which would be a lengthy and inappropriate process for generators. (0260) 
Some commenters stated that the result of these changes would be to give EPA and the states huge and unfair leverage to settle violations of the generator requirements involving higher penalties than the gravity or economic benefit of the violation would justify. (0192)
(g) EPA Response: As stated above, EPA does not consider these revisions to the regulatory language to be a change to the RCRA generator program because the regulations that were previously in §262.34 and the provisions for VSQGs in 261.5 were always conditions for exemption from storage facility permit, interim status, and operating requirements and have always worked in the same way that we explain in the proposal and final rule. There is no increase in burden as a result of these revisions and no change to how EPA perceives the risk of different types of facilities. Contrary to the commenter's statement that these revisions are unnecessary, the confusion that has persisted over the long-standing legal consequences of noncompliance with conditions for exemption is evident in these comments, which demonstrates the need to revise the regulations to include these concepts so all generators can more easily understand them. Therefore, EPA disagrees with the commenters' suggestions to remove these revisions from the final rule or to revise them to state that generators' failure to comply with them "may lead to failure to maintain the exemption." 
In addition, EPA disagrees that these revisions to the regulatory language would fundamentally shift the focus of enforcement against hazardous waste generators. EPA has made very clear in the preamble to the final rule that these revisions do not mandate regulatory agencies to bring any enforcement action for minor violations or infringe on a regulatory agency's enforcement discretion when deciding to charge violations discovered at an inspection. There will be no need for regulatory agencies to change such discretionary charging and penalty approaches and policies as a result of these revisions, so long as they are consistent with the long-standing conditional exemption scheme clarified by today's rule.Likewise, because there is no change in the framework of the regulations, EPA sees no need for there to be specific changes in whether a generator facility would be subject to getting a TSDF permit as a result of enforcement action  -  if the facility would not need to take such actions as a result of an enforcement action previously, EPA does not expect that to change.
Regarding the commenters' argument that the proposed regulations are unlawful and counter to federal statute, EPA agrees that generators, by their mere status as generators in RCRA section 3002, do not trigger permitting requirements. However, RCRA 3004 provides that storage, treatment and disposal facilities must comply with permit requirements of section 3005, and it does not contain any specific carve-out for generators or any other party that may store hazardous waste. Under its section 3002 authority, EPA long ago promulgated regulations that allowed generators to accumulate hazardous waste on-site without a RCRA permit, provided they meet certain conditions. These conditional exemptions from permitting requirements for generators that accumulate on-site have been in existence for 35 years without being overruled by Congress, an indication that Congress did not consider the conditional exemption inconsistent with its intent. 
Likewise, the revisions to the language of the generator regulations will not be unlawful under the Due Process and Excessive Fines Clauses because EPA's written RCRA Civil Penalty Policy and EAB decisions have provided for penalties that reflect the level of seriousness of the noncompliance with the condition for exemption. The mere fact that noncompliance with one condition could theoretically trigger multiple other violations does not mean that excessive fines inevitably, or even rarely, will result. 
Regarding the comment that the revisions would change the leverage a state has in assessing penalties, this rule is merely a restatement of the way the underlying regulatory scheme has always worked. EPA has always considered generators who accumulate on-site but do not comply with the generator accumulation conditions to be unpermitted storage facilities. EPA's position was confirmed by the Environmental Appeals Board in the In re M.A. Bruder decision. 10 E.A.D. 598 (EAB 2002). However, as indicated in that decision, EPA retains substantial discretion in calculating penalties that are commensurate with the circumstances of the violation, including considering the extent of deviation from the generator accumulation conditions rather than from the TSDF permitting requirements. These revisions in this rule create no change in a state's leverage to settle or authority to calculate appropriate penalties.

(h) Comment: One commenter stated that they believe the current regulatory language is adequate to allow the regulating entity to properly respond to violations depending on whether violations are egregious or persistent. 
(h) EPA Response: As stated above, EPA does not consider these revisions to the language of the regulations as a change in how the program operates and agrees that the current regulations are adequate for regulating entities to respond to violations. However, EPA believes that the regulations should be revised to be clearer about how the framework is designed so that all generators are aware of the legal consequences on noncompliance with conditions for exemption. The comments on the proposed rule indicate some misunderstanding about the RCRA program and EPA is using these revisions to clear up that misunderstanding. 
(i) Comment: Some commenters stated that if these revisions are finalized, they would expect most large quantity generators to apply for Part B permits to protect themselves from small inadvertent infractions. (0255, 0262)
(i) EPA Response: Because these revisions to the language are not a change to the regulatory framework of the generator program, EPA does not expect to see any increase in permit applications from generators as a result of them. EPA has revised the language in the preamble to the final rule to be more clear about the fact that the revisions do not impact the ability of regulating agencies to exercise enforcement discretion when charging violations and states that the revisions do not mandate a change in policy regarding whether to bring an enforcement action upon discovering a violation or what kind of enforcement vehicle to use. 
(j) Comment: Commenters expressed concern that although EPA has the option to forgo an enforcement action or to bring one for illegally operating a TSDF, state enforcement agencies and environmental or citizen groups may use this framework to bring extreme action against a generator that is not a flagrant violator for a minor violation. (0126, 0168, 0188)
(j) EPA Response: State enforcement agencies are no more likely to bring "extreme action" than EPA is, and are instead likely to follow EPA's enforcement policy of avoiding such action for a minor violation. Even though RCRA allows state regulations to be more stringent than federal regulations, states often follow EPA's enforcement policies, and also similarly exercise their enforcement discretion. Private rights of action, including RCRA citizen suits, are subject to judicial decision making that is not likely to result in "extreme" penalties. 

(k) Comment: Some commenters stated that the tone of the proposed language in 262.1 and 262.10(g) is opposite of the other rule proposals and that EPA should focus on making the regulations easier to understand. (0160)
(k) EPA Response: Much of the Generator Improvements Rule, including the reorganization of § 262.10, is dedicated to making the rules easier to understand. EPA has also revised the language in § 262.10(g)(2) to rely less on legal and regulatory citations and to be more straight forward. EPA believes that the new language about independent requirements and conditions for exemption and consequences of noncompliance is a valuable addition because it will inform generators of the consequences of potential noncompliance with these provisions so they can better understand the regulations under which they operate. 
(l) Comment: Some commenters stated that EPA should limit the conditions for exemption to those provisions that distinguish one generator status from another and remove all operating standards from sections 262.14-17. (0113, 0120, 0131, 0219, 0225) 
One commenter suggested that EPA state that the distinction between accumulation and storage is the amount of time the generator keeps the waste on site. (0217) 
(l) EPA Response: EPA disagrees with the commenters' suggestion that the only conditions for exemption should be the amount of waste a generator generates in a month and the only distinction between accumulation and storage should be how long the waste is kept on site. The amount of hazardous waste a generator generates determines its generator category and which set of conditions it must comply with, but EPA is not changing the nature of the conditions in this rulemaking. Previous § 262.34 clearly lays out the conditions required if a generator is going to accumulate hazardous waste on-site for 90 days or less (or 180 days or 270 days, per other subparagraphs of § 262.34) and EPA did not propose to change the nature of these conditions. They include technical standards and inspection requirements for waste management (§§262.(a)(1) and § 262.34(d)(2) & (3)); labelling standards (§ 262.34(a)(2) & (3)); emergency preparedness and prevention standards (§ 262.34(a)(4) and §262.34(d)(4) & (5)); and closure requirements (§ 262.34(a)(1)(ii)); among others. Compliance with these conditions is a long-standing prerequisite for maintaining an exemption from the permitting, interim status, and operating standards for TSDFs and establishes the distinction between accumulation as a generator and storage that must be permitted. 
(m) Comment: A commenter stated they were unable to determine why some provisions were in one category and others in the other, stating that the Agency's decisions on this were arbitrary and that the Agency was deficient under the APA by not explaining its decisions. (0168) The commenter argued that under § 262.34, only the exceedance of the time or quantity limits for accumulation of hazardous waste is capable of turning a generator into a TSDF. (0168) The commenter stated that even if EPA could somehow justify its lack of rationale for designating and structuring requirements from existing Section § 262.34 as conditions for exemption, that justification would not extend to the new generator requirements being proposed for the first time, much less to existing requirements outside of Section 262.34, that EPA is proposing to now designate and structure as conditions for exemption. See, e.g., 80 Fed. Reg. at 57,997 (proposed to be codified at 40 C.F.R. § 262.16(b)(7)) (requiring SQGs to comply with land disposal restrictions requirements in Part 268) and 57,801 (proposed to be codified at 40 C.F.R. § 262.17(a)(9)) (same requirement for LQGs). (0168) The commenter raised a number of questions about the consequences of noncompliance with a single "minor" condition of the generator exemption, such as whether the generator would be subject to all TSDF requirements, before and after correcting the violation, whether the generator would have to get a permit and cease handling hazardous waste until the permit was approved, and whether the generator would be subject to corrective action, and states that because EPA did not address these questions in the proposal, the proposal is deficient under the APA. (0168) 
(m) EPA Response: EPA disagrees with the commenter's assertion that under § 262.34, only the exceedance of the time or quantity limits for accumulation of hazardous waste is capable of turning a generator into a TSDF. Previous § 262.34 clearly lays out the conditions required if a generator is going to accumulate hazardous waste on-site for 90 days or less (or 180 days or 270 days, per other subparagraphs of § 262.34) and they include technical standards and inspection requirements for waste management (§§262.(a)(1) and § 262.34(d)(2) & (3)); labelling standards (§ 262.34(a)(2) & (3)); emergency preparedness and prevention standards (§ 262.34(a)(4) and §262.34(d)(4) & (5)); and closure requirements (§ 262.34(a)(1)(ii)); among others. Compliance with these conditions is a long-standing prerequisite for maintaining an exemption from the permitting, interim status, and operating standards for TSDFs and establishes the distinction between permit-exempt accumulation as a generator and storage that must be permitted. Current generator regulations that do not appear in § 262.34, such as making a hazardous waste determination, counting, notifying EPA, and keeping certain types of records do not fall within this category of conditions for exemption and are independent requirements. This is not a change from the previous language of the regulations to the new rule. Regarding the specific provisions the commenter mentions as being proposed for the first time, small and large quantity generators both have had to comply with the land disposal restrictions in part 268 -- this is not a new requirement. As Tables 6 and 7 that crosswalk the regulations in the proposed rule say, these requirements have been located in § 262.34(d)(4) for SQGs and § 262.34(a)(4) for LQGs. They are, like all the other provisions in § 262.34, conditions for exemption from permitting, interim status and operating standards for permitted facilities. As EPA has stated and clarified in this document and in the final rule, this framework for the regulations is not a change -- many generators are able to work to get back into compliance with the generator regulations without getting a permit when enforcement violations are charged, but the changes to the language in this regulation do not mandate a regulating agency to change how it handles these situations and exercises its enforcement discretion. 
(n) Comment: One commenter stated that the key problems with EPA's approach are that whenever there is a violation of any one condition for exemption, multiple violations would occur and multiple penalties could be assessed. (219) 
(n) EPA Response: What the commenter describes is true with every conditional exemption in the RCRA regulations. However, as described in this response-to-comment document and in the preamble to the final rule, EPA and states continue to have discretion to charge violations and calculate penalties in numerous ways depending on the circumstances of the noncompliance, considering, among other things, the potential for harm and the extent of deviation from compliance. This includes the ability of the regulators to compare the violation against compliance with the conditions as opposed to compliance with permit requirements. See In re MA Bruder, 10 E.A.D. 598 (EAB 2002), an Environmental Appeals Board decision. EPA and the states also have the discretion to charge specific violations of individual requirements as there is no mandate that every violation must be charged nor that a penalty be calculated for every violation. Furthermore, where the same act or omission may lead to numerous violations, EPA's practice includes routinely `compressing' multiple violations into single counts in our complaints. This practice is described in the RCRA Civil Penalty Policy at page 21.
(o) Comment: One commenter stated that although the preamble states that making a correct hazardous waste determination is a condition for VSQGs but an independent requirement for SQGs and LQGs, this cannot be correct because the provision must be an independent requirement for VSQGs because it is done before the management of the hazardous waste. (0077)
(o) EPA Response: EPA disagrees with the commenter's assertions that a provision must be an independent requirement because it is completed before the management of the hazardous waste. Under the previous regulations at section 261.5, CESQGs (now VSQGs) were required to make correct hazardous waste determinations as a condition of being excluded from full regulation (sections 261.5(f)(1) and 261.5(g)(1)) and this structure in the final rule is consistent with those regulations. 
(p) Comment: One commenter stated that section 262.10(a) should be structured in a way that lists all the independent requirements for VSQGs. (0077) One commenter stated that regulations for VSQGs should be either independent requirements or conditions for exemption, parallel to the structure for SQGs and LQGs, and not conditions for exemption from SQG or LQG regulations. (0217) 
(p) EPA Response: EPA agreed with the commenter about the structure of § 262.10(a) and has included a section that lists all the independent requirements for VSQGs in the final rule. Likewise, the revisions to this section make it clear that the provisions for VSQGs are parallel to the other generator categories, with a set of independent requirements in § 262.10(a)(1)(i) and an exemption from permitting referenced in § 262.10(a)(2)(i). 
(q) Comment: One commenter stated that moving 262.10(b) in front of 262.10(a)(1) would be a more logical reading order for this section of the regulations. (0082) One commenter suggested including a reference to 262.11(a)-(d) to 260.10(b) since all generator also have to comply with 262.10(a)-(d). (0082)
(q) EPA Response: EPA is not making the changes the commenter suggested, believing that starting the section with the big picture view of what the requirements are for all generators is a useful approach for high level section of the regulations such as this one. Regarding a reference to § 262.11, EPA does not think this reference is as relevant as the one to § 262.13 because this section is about using information about your generator category to determine which regulations you must follow and § 262.13 describes how to determine your regulatory category. 
(r) Comment: One commenter suggested that EPA include further guidance and examples on this topic in the final rule. (0121)
(r) EPA Response: EPA intends to provide trainings and issue guidance on the Generator Improvements Rule and will be including this topic in the training. 
(s) Comment: One commenter stated that the way 262.14 VSQG conditions for exemption currently reads, it is not clear if the independent requirements apply to VSQGs that exceed quantity limits. (0214)
(s) EPA Response: The commenter did not specify which language precisely it found unclear or whether the comment is referring to generation limits per month or accumulation limits. If a VSQG exceeds its generation limits, it becomes either an SQG or an LQG and must meet all independent requirements for that category; in addition, the generator should consult either §262.16 or §262.17, as appropriate, for conditions for exemption from permitting. If the VSQG exceeds the accumulation limit of 1,000 kg, but remains within the monthly generation quantity limit for VSQGs, the generator remains a VSQG, but the waste must be managed like waste from the larger generator category. 
(t) Comment: One commenter asked whether the language in 262.10(a)(2) addresses accumulation of waste in exempted units, such as wastewater treatment units at facilities that discharge to a private plant that does not have a NPDES permit but engage in NPDES equivalent treatment. (0214) 
(t) EPA Response: The "exempted units" mentioned by the commenter (wastewater treatment units, or WWTUs) are defined in 40 CFR 260.10, and EPA notes that this final rule is not revising this definition in any way. Units that meet the definition of WWTU under RCRA subtitle C are exempt from RCRA permitting and interim status requirements (see 40 CFR 264.1(g)(6) and 265.1(c)(10), respectively). Part of the definition of WWTU is that the unit is "part of a wastewater treatment facility that is subject to regulation under either section 402 or 307(b) of the Clean Water Act." This part of the definition limits the scope of the exemption to WWTUs operating at facilities that discharge either directly to surface waters (i.e., subject to regulation under CWA 402) or indirectly to Publicly-Owned Treatment Works, or POTWS (i.e., subject to 307(b) of the CWA). However, the situation described by the commenter in which the discharge is to a private plant engaged in CWA-equivalent treatment does not meet this definition, therefore the unit described by the commenter does not appear to be an exempt WWTU as defined in RCRA 260.10. Since the commenter describes a WWTU that would not qualify as an exempt WWTU, the commenter's question regarding the applicability of 262.10(a)(2) to accumulation in exempt WWTUs is no longer relevant. 
(u) Comment: One commenter asked if EPA's use of "those independent requirements" on page 57986 when discussing enforcement refers to part 264 requirements or the part 262 requirements the facility could have used to maintain the exemption. (0214)
(u) EPA Response: EPA was in this section referring to the TSDF requirements from which compliance with part 262 provides an exemption, not the "independent requirements" in part 262 itself. EPA has removed "independent" from this language in the final rule. 
(v) Comment: One commenter stated that Table 1 in the proposed rule was useful and should be included in the regulations. (0217) 
(v) EPA Response: EPA is not including this table in the regulations as it is a summary of requirements and does not include the detail needed for regulatory language. However, EPA intends to update the table and issue it as guidance for implementation of the final rule. 
(w) Comment: One commenter stated that they read the preamble statement at pg 57934 that states that "this new addition will reinforce to generators that they must meet these independent requirements whether or not they accumulate waste on-site" to mean that EPA perceives generators to have a difficult time complying with the current requirements. The commenter disagreed and believed the current standards are mostly clear and that this statement is confusing -- the commenter argued that generators that do not accumulate hazardous waste on site are not subject to independent requirements. (0217)
(w) EPA Response: EPA disagrees with the commenter. The independent requirements as laid out in the proposal are triggered by the generation of hazardous waste and are applicable to all generators regardless of whether they accumulate the hazardous waste on site. These provisions (e.g., §§ 262.11, § 262.12 (previous), 262.40, 262.41) refer either to "a person who generates solid waste" or a "generator," defined in § 260.10 as "any person, by site, whose act or process produces hazardous waste..." None of these provisions refer to the generator having to accumulate that waste for the provision to kick in. In the current regulations, these provisions contingent on accumulation are in §262.34 and are the "conditions for exemption" discussed in the new rulemaking. The confusion evident on this topic in the comments to the proposal illustrates the need for the new clearer language. 
(x) Comment: One commenter stated that EPA should not assume that "virtually every generator accumulates or stores its hazardous waste on site for some period" as some retail outlets are progressing to a daily delivery model in which stores receive a shipment of product every day and can send single items that might be hazardous waste back to distribution centers that day. The commenter argued that this would mean that a store had no accumulation of hazardous waste. (0243)
(x) EPA Response: A hazardous waste determination must be made at the point of generation. That may mean the retail store has generated a hazardous waste if the returned product cannot be used/reused or recycled. If a hazardous waste has been generated because it cannot be recycled, then the waste starts being accumulated as well  -  even if for a short period of time. Therefore, even though the waste spends very little time being accumulated, the generator must follow the applicable RCRA regulations. EPA notes that if the generator operates within the accumulation limits outlined in section 262.15 of 55 gallons of hazardous waste or 1 quart or kilogram of acute hazardous wastes and follows the other conditions in 262.15, accumulation in a satellite accumulation area may be an option for these operations. 
(y) Comment: One commenter states that the proposed section 270.1(c)(2) changes the specific exemption for generators from RCRA permits to restrict the exemption to only those generators in compliance with "all of the conditions for exemption in" the new sections 40 CFR 262.14, 262.15, 262.16, and 262.17. The commenter added that currently this exemption is broadly open to generators who store hazardous waste for less time than the thresholds in 40 CFR 262.34 and that being penalized for some minor infraction of the numerous requirements in the new sections should not force a generator to apply for a Part B permit as the draft regulations would do. That is a mandatory penalty that does not fit the infraction. Because applying for a Part B permit exposes a facility to being investigated under RCRA Corrective Action, a fact that is not known by many generators, this change is of even greater adverse consequence and of even greater cost for the regulated community. The commenter stated that regulator discretion needs to be re-enabled so that minor infractions will receive commensurately minor penalties. (0263)
(y) EPA Response: EPA has purposely made this change to § 270.1(c)(2) as a part of its revisions to this rulemaking to make it clear that in order for a generator to be excluded from permitting requirements, they must meet all the conditions for exemption, as laid out in the final rule at §§ 262 14-17. This is consistent with similar changes being made throughout the generator regulations to make clear how the regulations have always been intended to work. As discussed earlier in this section of the Response to Comments, in practice, it is rare that a generator that is not complying with the conditions for exemption has to apply for a permit as a result of an enforcement action rather than coming back into compliance and EPA is not affecting an implementing agency's ability to exercise enforcement discretion during enforcement actions. 

(z) Comment: Commenters stated that proposed section 270.1(c)(2)(iii) deletes the explicit exclusion from Part B permitting for CESQGs by deleting the reference to 261.5 and failing to add the reference to 261.14 (USEPA instead notes 261.14 in 270.1(c)(2) but ties the exclusion to compliance with the section). One commenter argued that this is a quantum leap in regulatory exposure for CESQGs to serious consequences for such small hazardous waste generators and that the explicit exclusion from Part B permitting for CESQGs needs to be retained. (0263, 0266)
(z) EPA Response: EPA has revised this section in the final rule to include a reference to § 262.14 after determining that it made an error by deleting the reference to persons who own or operate facilities solely for the treatment, storage, or disposal of hazardous waste excluded from regulations under 261.5 (now 262.14). The implications of deleting the VSQG reference from this section were greater than EPA realized in the proposed rule. 

Section 4.1.2 - Deletion of 262.10(c)

(a) Comment: Commenters agreed with EPA's proposal to delete and reserve section 262.10(c) from the generator regulations. (0085, 0174, 0185, 0217, 0232, 0248)
(a) EPA Response: EPA agrees with the commenters and is deleting this section in the final rule. 
(b) Comment: One commenter suggested that instead of deleting and reserving 262.10(c), EPA should revise it to codify the long-standing EPA interpretation regarding treatment by generators in tanks and containers, which would strengthen the ability of states to allow such treatment when it is appropriate and prevent it when it is not appropriate. (0178)
(b) EPA Response: EPA is not going to use this section of the regulations for a different set of regulations, such as treatment in tanks and containers. Replacing the contents of §262.10(c) with other text would lead to confusion in the future when a person examining a reference to this section of the regulations has to determine if the reference refers to §262.10(c) before or after the promulgation to the Generator Rule. In addition, codifying this interpretation was not proposed in the original rulemaking and is out of scope of this final rule. 
(c) Comment: A commenter stated that language in § 262.10(c) accounts for accumulation of waste in exempted units, such as waste water treatment units. The commenter stated that the removal of this language without the addition of a clarification on the "point of generation" is an issue, especially with regard to implementation of the land disposal restrictions. The commenter added that this deletion is a serious gap because subtitle C facilities may not have a waste profiling process, or if they do, they may not be aware of the 268.40 and 488 standards that apply to decharacterized hazardous waste. (0214)
(c) EPA Response: EPA disagrees with the commenter. After examining the history of this provision, described in the proposed rule at 80 FR 57934-5, EPA determined that this is an outdated provision that originally applied to generators that manage treat, store, or dispose on site, a category of generator that used to have distinct requirements from generators that transport waste off-site but no longer do. All the original requirements listed in § 262.10(c) (§§ 262.11, 262.12, 262.40, 262.42, and 262.70) are independent requirements applicable to all generators regardless of management or accumulation of the waste, even if it is in an exempt unit. The reference to § 262.34 added in 1982 would also not apply to exempt units because § 262.34 requires the use of containers, tanks, drip pads, or containment buildings for the storage of hazardous waste. EPA is deleting and reserving this obsolete section in the final rule. 

Section 4.1.3 - Enforceability under section 3008 if not meeting requirements

All comments on section 3008 addressed in Section 4.1.1.

Section 4.1.4 - Deletion of Labs XL

Comment: Commenters stated that they agreed with the deletion of the references to the obsolete Labs XL. (0085, 0174, 0185, 0217, 0221, 0232, 0248)
EPA Response: EPA is promulgating this revision in the final rule. 

Section 4.1.5 - Generators shall not transport to non-designated facility

(a) Comment: Commenters agreed with EPA's proposal in § 262.10(a)(3) to add a provision stating that generators may not transport to a non-designated facility. (0085, 0134, 0178, 0181, 0195, 0217, 0223, 0232, 0248) One commenter stated that they have a similar provision in their state and it is useful for training generators and for enforcement purposes. (0232) 
(a) EPA Response: EPA agrees with the commenters and is promulgating this provision in the final rule. 
(b) Comment: One commenter suggested that EPA expand the language in this provision to explicitly state that generators may not place their hazardous waste in the trash. (0178) 
(b) EPA Response: EPA notes that this provision applied to all categories of generator and that under federal regulations, a municipal solid waste landfill permitted, registered and licensed by the state would be a designated facility for VSQGs. 
(c) Comment: One commenter suggested that EPA define what is considered "offering" for these purposes. (0223)
(c) EPA Response: The term "offer hazardous waste" is one that is used regularly in the hazardous waste regulations, particularly in the regulations for shipment and the Hazardous Waste Manifest and EPA believes that it is well understood by the regulated community. 
(d) Comment: One commenter asked if this provision would cover generators that send waste that does not meet treatment standards to a subtitle C landfill that does not treat waste before landfilling. (0214)
(d) EPA Response: This provision is a reference only to the type of facility to which the generator is transporting its hazardous waste. Failure to meet treatment standards prior to shipment would be noncompliance with those requirements. 
(e) Comment: Commenters stated that adding a new provision specifying that generators may not transport to a non-designated facility is unnecessary. (0077) Commenters argued that it is unnecessary because the regulations and statute already place the responsibility on the generators for the ultimate disposition of the hazardous waste. (0077) 
(e) EPA Response: EPA disagrees with the commenter. EPA and several other commenters on this provision believe that this provision is useful in making this requirement clear for all generators and for implementing agencies to point to when educating generators, performing compliance assistance, and enforcing the regulations. 
(f) Comment: One commenter stated that they are concerned that this proposed provision would seem to prohibit states from maintaining many of the commonsense and environmentally protective options they have provided for utilities managing hazardous waste in the absence of follow-up from EPA on the Utilities XL consolidation project, such as authorizing the use of transfer facilities, allowing for hazardous waste determinations to be made at consolidation facilities, and/or agreeing to allow utilities to consolidate at the nearest manned facility or establish other best management practices. (0093) (f) EPA Response: It is EPA's understanding that when utilities are consolidating waste from remote facilities, particularly unmanned facilities, those facilities are VSQGs. If a state has a program in place for consolidation of VSQG waste, as mentioned in the comment, EPA believes that in many or most cases, these consolidation facilities would meet the requirements as a facility a VSQG may ship hazardous waste to, specifically as a facility "authorized to manage hazardous waste by a state with a hazardous waste management program approved under part 271." EPA does not expect that this provision will interfere with that type of program.

Section 4.1.6 - Other

There are no comments organized to this section of the comment outline. 

Section 4.2 - Waste Determinations

Comment: The numerous proposals associated with changes to part 262.11 pertaining to Hazardous Waste determinations and documentation while still keeping CESQGs (or if they become Very Small Quantity Generators) unaffected by these changes. (0076)

Response: CESQGs/VSQGs are not affected by the changes to 40 CFR 262.11. However, they continue to be subject to making an accurate hazardous waste determination. 

Comment: Upon review of the docket named above, we are concerned that the proposed rule changes to 40 CFR Part 262.11 establish requirements that will place additional ongoing functional and financial burdens on laboratories in many sectors. We do not believe that a balancing of these burdens has been given due consideration in the EPA reasoning for imposing these new requirements.

In preparing this comment, ACS has carefully vetted the concerns raised below with hazardous waste experts at a variety of leading academic institutions and in related professional organizations. These experts have raised concerns in greater detail on the general issues described in this comment. Many of their concerns are related to specific state interpretations of the RCRA regulations, which -- as you can see in the attached policy statement -- also remain the primary concern of the ACS with regard to RCRA impacts on laboratory waste management. Thus, while this comment addresses the EPA docket request within the general purview of the ACS policy statement, we agree that concerns by other laboratory stakeholders are important to consider in reviewing this rule. (0083)
Response: The Agency disagrees with the above comment. The Agency's policy and position from the beginning of the RCRA program has been that a waste determination must be made at the point of generation (i.e., the point at which the material first becomes a solid waste under RCRA.  See, for example, 55 FR 11830, March 29, 1990). This includes both the time and place the waste is first generated. By requiring that the hazardous waste determination be made at the point of generation in § 262.11(a), the final regulation clarifies that the determination cannot be made downstream in the process, where other materials could be mixed with the waste or where the waste may have changed its physical or chemical characteristics. A generator's hazardous waste determination at the initial point of generation is critical to ensure proper management of the waste not only by the generator, but also by transporters and TSDFs who rely on the generator's determination to allow them to safely manage the waste and provide appropriate treatment and disposal. This proposed revision to § 262.11 is not a substantive change to the program; preambles to a number of previous rules explain that EPA has always maintained that hazardous waste determinations must be made at the initial point of generation . (See 45 FR33095-96, May 19, 1980 and 55 FR 11830, March 29, 1990)
The Agency is also aware that many generators, such as academic and industrial laboratories, generate new or different waste streams frequently, and that making hazardous waste determinations for multiple waste streams is more difficult than when a generator has a small number of waste streams that seldom vary. However, EPA stresses that in the laboratory setting, it may be even more important to make accurate hazardous waste determinations at the point of generation, so that emergency scenarios involving mixing of incompatible wastes or other dangerous situations can be avoided and lab worker safety maintained. Whether a generator generates one new waste daily or annually, the process for making a hazardous waste determination is still the same. Through knowledge of the process or materials, and/or through testing, all generators must make a hazardous waste determination at the point of generation. The Agency would expect generators producing new wastes frequently to establish efficient processes to make those waste determinations, particularly to the extent they can use knowledge of the materials or feedstocks in the waste determination process.

The Agency realizes that the educational and industrial laboratory sectors raised concerns about the undue waste determination burden from the large numbers of potentially hazardous wastes that might be generated at their sites. EPA realizes that these sectors operate differently from the traditional industrial hazardous waste generators. In fact, to address laboratory sector concerns, EPA developed an optional set of alternative standards in 40 CFR part 262 subpart K, entitled, "Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities." This rule was designed to account for the manner in which academic laboratories operate. In addition, a few years ago, the EPA began a review of how RCRA hazardous waste regulations apply to the retail sector in order to better understand retailers' challenges in complying with RCRA regulation. These efforts are on-going.

From a practical viewpoint, those involved in conducting experiments in a laboratory setting will need to make a hazardous waste determination when they have a generated a waste they know will be disposed. The question that needs to be answered is whether the waste is hazardous or not, and why; i.e., what hazard is exhibited that makes the waste a hazardous waste, such as ignitable, toxic, corrosive and reactive. Once they know the hazard they can place a label in an appropriate place where the waste will be stored until it is picked up and moved to a central accumulation area. The Agency believes technical staff can help those working in a lab to determine whether their experiments will produce a hazardous waste and determine why the waste is hazardous. The Agency also believes students, researchers, etc. are already being trained in this determination because they have to be aware of the potential hazards they are dealing with. (In fact this commenter said so; i.e., "While these individuals are aware of the associated hazards, that knowledge does not qualify them to make hazardous waste determinations."
The problem appears to be whether the researcher will need to identify the RCRA waste codes. The process for identifying RCRA waste codes begins at the point of generation, but the actual marking of these codes on a container must occur prior to the wastes being sent off-site to a RCRA permitted TSDF, or prior to being treated and disposed of on-site. In other words, sufficient time will exist for the technical experts in the laboratory to identify the RCRA waste codes to complete the waste determination process. The Agency was not clear about this in the proposed rule. The Agency believes this process should alleviate this issue in a laboratory setting.
Comment: The rule maintains the current ambiguous situation regarding the "point of generation" of hazardous waste and where the application of RCRA requirements begins;

2. The requirements for documentation of hazardous waste determinations, even when the waste is determined not to be hazardous, have significantly more impact on the management of laboratory waste than on other hazardous waste generation settings; and

3. The additional labelling requirements for hazardous waste will impose a significant burden on laboratory waste generators without providing the benefits described in the docket. (0083)
Response: The Agency disagrees with the above comments. With respect to the "point of generation" comment, the Agency's policy and position from the beginning of the RCRA program has been that a waste determination must be made at the point of generation (i.e., the point at which the material first becomes a solid waste under RCRA.  See, for example, 55 FR 11830, March 29, 1990). This includes both the time and place the waste is first generated. By requiring that the hazardous waste determination be made at the point of generation in § 262.11(a), the final regulation clarifies that the determination cannot be made downstream in the process, where other materials could be mixed with the waste or where the waste may have changed its physical or chemical characteristics. A generator's hazardous waste determination at the initial point of generation is critical to ensure proper management of the waste not only by the generator, but also by transporters and TSDFs who rely on the generator's determination to allow them to safely manage the waste and provide appropriate treatment and disposal. This proposed revision to § 262.11 is not a substantive change to the program; preambles to a number of previous rules explain that EPA has always maintained that hazardous waste determinations must be made at the initial point of generation . (See 45 FR33095-96, May 19, 1980 and 55 FR 11830, March 29, 1990)
With respect to the requirements for hazardous waste determination documentation, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, the Agency believes this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
With respect to the comment on labeling requirements, the Agency believes we have clarified how the process shall work. From a practical viewpoint, when a hazardous waste is first generated at the point of generation, a hazardous waste determination will have to be made. The question that needs to be answered is whether the waste is hazardous or not, and why; i.e., what hazard is exhibited that makes the waste a hazardous waste, such as ignitable, toxic, corrosive and reactive. Once they know the hazard they can place a label in an appropriate place where the waste will be stored until it is picked up and moved to a central accumulation area. In a laboratory setting, the Agency also believes students, researchers, etc. are already being trained in this determination because they have to be aware of the potential hazards they are dealing with. (In fact this commenter said so; i.e., "While these individuals are aware of the associated hazards, that knowledge does not qualify them to make hazardous waste determinations."
The issue appears to be whether a worker, researcher, etc.  will need to identify the RCRA waste codes. The process for identifying RCRA waste codes begins at the point of generation, but the actual marking of these codes on a container must occur prior to the wastes being sent off-site to a RCRA permitted TSDF, or prior to being treated and disposed of on-site. In other words, sufficient time will exist for the technical experts in the laboratory to identify the RCRA waste codes to complete the waste determination process. The Agency was not clear about this in the proposed rule. The Agency believes this process should alleviate the concerns of this commenter.
Comment: While the EPA concern about inadequate waste determination processes by some generators is understandable, the proposed solution does not scale at all with the problem in the laboratory setting. Because laboratories produce many individual containers of different mixtures of hazardous chemicals in a wide variety of sizes and configurations, from 5 milliliter vials to 5 gallon drums, documenting the basis for a hazardous determination on a container by container process will significantly increase the amount of record keeping required to meet these regulatory requirements.

In addition, many hazardous chemicals used in laboratories are not designated "hazardous wastes" by the current EPA definitions, including most new chemicals that have come into use in the 35 years since 1980. The result for chemicals such as ethidium bromide -- whose labelling criteria are set by, among others, the Department of Transportation -- is that their shipping requirements will be different than for EPA-identified hazardous wastes. Consequently, there will be significant confusion created by the waste determination documentation for both waste handlers and government inspectors when chemicals such as ethidium bromide are lab packed in containers that also contain RCRA hazardous waste.

The proposed heightened requirement for hazardous waste determination documentation parallels and exacerbates the current administrative burden borne by lab pack generators with regard to the Land Disposal Restriction (LDR) documentation that is required as part of the shipping paper package. We have described the burden in previous correspondence and meetings with the EPA and continue to believe that the LDR paperwork is an unreasonable requirement for lab waste generators to meet, particularly because it has been an obsolete program since 2000.

One possible alternative to these documentation burdens required by the RCRA regulations would be to identify the creation of a lab pack as the point of hazardous waste determination and thus the point of imposition of the documentation requirements. As suggested by the EPA, the creation of an electronic tool to facilitate this lab packing process by personnel specifically trained in RCRA waste codes is likely to increase compliance rates that the EPA is seeking with this proposed rule. ACS would be glad to work with the EPA on designing such software to address the EPA and generator's needs for proper documentation of lab packed wastes.

Point 3

Since laboratory waste is containerized in a wide variety of sizes and shapes, the proposal for additional labelling requirements to include hazard warnings will be 1) impractical for the smallest containers due to the size of the labels and 2) of limited value, since many containers are too small to be considered in developing a response plan to a hazmat incident. Here again, imposing the labelling requirements at the point of lab pack creation is the most reasonable approach to addressing the concerns described in the docket.

We appreciate the EPA's desire to continue to improve the RCRA hazardous waste management system. However, because the proposed rules impact such a variety of industries and settings, it is very important for the EPA to take a conservative approach in making changes to the system that is the basis upon which many institutional laboratory waste management processes have been developed. We believe that the three issues described above require rethinking to justify such changes. (0083)
Response: The previous response to this commenter's concerns are also applicable to the concerns raised here as well.    
Comment: Environmental regulatory burdens are inappropriately placed on many academic, commercial, and government laboratories when regulations designed to address large-scale industrial operations are applied to laboratories. Research, development, instructional, and service laboratories generate a broad range of small quantities of hazardous wastes, but are forced to individually manage each type of waste with the same rigor applied to those who create large amounts of relatively few wastes. By applying an industrial regulatory scheme to laboratories, unintended, ineffective, and inappropriate burdens are placed on these facilities. (0083)
Response: The response to this commenter's first comments above are responsive to the concerns raised here as well. 
Comment: There are several procedures and guidance documents in place to make hazardous waste determinations. By using these procedures and guidance documents, the steps necessary to produce records that identify a material as a solid waste are in place. However, as is noted in the preamble there are "solid wastes that clearly have no potential to be hazardous," and no documentation is available for such wastes. The preamble states that "the Agency is not interested in entities that generate solid wastes that clearly have no potential to be hazardous." But the Agency (EPA) and the state have interest in SRS and the wastes generated here.

There is nothing in the proposed wording of 262.11(e) that allows solid waste that "clearly has no potential to be hazardous" to be exempt from the requirement to maintain records supporting "solid and hazardous waste determinations, including records that identify a material as a solid waste." The statement "Generators may wish to segregate any of their municipal solid waste from other solid and hazardous wastes to avoid potential comingling" provides no relief because it presumes "municipal solid waste" to be a clearly defined and understood set of wastes that everyone agrees upon. This is not necessarily the case. With vague language such as this in the regulation, individual inspectors have the discretion to require records for practically any solid waste they observe. A regulated entity, such as SRS, cannot point to any clear wording in the regulation that says ''these solid waste streams do not require documentation supporting their determination." Wording addressing this point is needed. (0092)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: SRNS agrees that solid and hazardous waste determinations need to be accurate and makes diligent efforts to insure SRS waste determinations are accurate. In the course of making waste determinations at SRS, it is sometimes necessary due to the level of radioactivity present in a waste to use methods in on-site laboratories in order to characterize a radioactively contaminated waste, rather than sending the waste sample to a certified offsite laboratory. The state has been contacted in such cases, and their acceptance of the necessity of such steps has been obtained. The proposed wording of the last sentence of 262.11(d)(2) in reference to "a test other than a test method set forth in subpart C of 40 CFR part 261" says "However, such tests do not, by themselves, provide definitive results." This wording implies that the EPA expects the use of more data or information than just such test results when making waste characterizations. If this is the case, then the EPA should clearly state what is acceptable, rather than just stating that such tests, by themselves, do not provide definitive results. As currently proposed, the language leaves both the regulated community and the federal and state inspectors in question of just what does "provide definitive results" or if definitive results are necessary. We recommend deleting the last sentence, as it does not clarify the requirement, or adding to it in order to make the requirement clear. (0092)

Response:  The concerns expressed by this commenter are not completely clear.  If the commenter is concerned about the results of radiological testing and how they are to be used, the Agency would note that radiologic wastes are not regulated under RCRA unless they also exhibit a hazardous characteristic or are listed as hazardous.  Therefore, the results of radiologic testing are not part of the RCRA hazardous waste determination, and would need to conform with the requirements of the agency that co-regulates the waste (most likely the Department of Energy or the Nuclear Regulatory Commission).

If the commenter is concerned that their in-house laboratory is not capable of performing the regulatory tests identified in 40 CFR 261 Subpart C, and so evaluation of the waste using non-regulatory tests is performed, the Agency considers this to be using knowledge to make the RCRA determination.   As the regulations allow the use of testing (using the Part 261 Subpart C tests) or knowledge of the waste (including alternate tests), this is an acceptable approach.  However, only the results of testing using the Part 261 Subpart C tests are considered definitive by themselves for making an accurate hazardous waste determination.  This is because these tests are part of the Part 261 Subpart C regulations, and where they exist, the regulatory standard is defined as a certain result when the applicable test is performed.  

The information needed to make an accurate knowledge-based determination may be different for different wastes.  The Agency urges generators taking this approach to be sure alternative (non-regulatory) tests used can produce information that is relevant to the hazard characteristic being assessed, and that other available, relevant information about the waste, such as properties of known components of the waste, the process producing the waste, feedstock chemicals used, etc. also be considered in conjunction with the test results when making the determination.  

As we point out in preamble, most generators use knowledge of the process and associated chemical feedstocks in making their waste determinations, but situations may exist where process knowledge does not produce a clear conclusion, and additional information is needed.  In such a case, a non-SW-846 test method that nonetheless illustrates properties of the waste may provide information that leads to a determination that is clearer and well supported.  However, when such testing is done, the generator needs to understand why that particular test was chosen over other possible tests. Generators may not have knowledge of the possibilities for testing and may need to rely on expert advice from a laboratory or technical consultant. In such a situation, the generator should get the expert advice in writing, so that the implementing Agency can understand and evaluate the appropriateness of using the particular test chosen and the meaning of the test result for the waste being evaluated. This is necessary in order for the generator to have a well-reasoned and documented RCRA determination.
      
      When evaluating a waste for compliance with the hazardous characteristics for which there is a regulatory test, obviously the generator should use that test if at all possible, because when properly performed, its results will be definitive in making the RCRA determination. However, in choosing a non-regulatory test to better understand waste properties, choice of testing requires judgement, and test results by themselves will not provide definitive results regarding the RCRA classification, because such tests are not part of the regulatory definition of the RCRA characteristic. 
      
      Without such documentation, the implementation of the RCRA waste determination may become difficult. Generators are obligated to make accurate RCRA hazardous waste determinations. Generators without an informed, well-reasoned and documented basis for their RCRA classification are more likely to make an incorrect determination, which in turn could make them subject enforcement action.   


Comment: In the preamble, the Agency requested comment from generators who generate many new wastes each year on how to reduce the burden but maintain environmental protection. Laboratories - academic, analytical, and R&D all make many waste determinations each year. By their nature, R&D labs in particular are constantly creating new types of waste. At the Savannah River National Laboratory, hundreds of hazardous and nonhazardous waste determinations are made annually. Some of these waste determinations could be shared between labs and other industries to create consistency and ease the burden of waste determinations. The easiest type of waste determination to make is for waste chemicals. This characterization is generally based on the SDS and sometimes limited physical data such as pH. A database of these chemical waste determinations (hazardous and nonhazardous) could be provided on the EPA website, populated by generators, and overseen by the Agency. Other waste determinations of commonly found items could also be shared on EPA's website such as Universal Waste determinations of brands of lamps, batteries, etc. Calculators for electronics (e.g. circuit boards), painted surfaces, etc. could be shared. Also assistance with narrative hazardous waste descriptions could be shared such as solutions containing oxidizers - at what point are they considered D001(ox) or what classes of materials are considered "reactive" - D003. Fostering a sharing community while providing oversight of the information will allow the Agency to ensure protection and provide consistency within the regulated community as well as ease the burden of each generator making each determination on its own. (0092)

Response: The Agency appreciates the suggestions of this commenter. Such a resource, as suggested, may have practical value for generators, EPA and the states. We may evaluate the feasibility of these suggestions in the future.  

Comment: A RCRA hazardous waste determination that results in a "not regulated" finding does not necessarily mean that there are no environmental and/or safety concerns. Other regulations (e.g. Federal TSCA for PCBs. State rules for used tires, local watershed restrictions on Ph), institution recycling programs, etc. may dictate proper disposal. (over 20% of the chemical waste sent to permitted facilities by this institution carries no RCRA codes). (0097)
Response: The Agency agrees with the above comment. Generators need to be aware of other federal and state environmental regulations as well as states being more stringent than the federal program in regulating different wastes.  
Comment: These regulatory changes are unlikely to address the issue presented. It appears the problem is not so much that waste determinations are not being made (an individual who elects to pour a liquid down the drain has made a de facto waste determination) but they are not made correctly because the potential hazard is not recognized. The remedy is not additional regulation and documentation but, awareness and education. Yes, generators share in this education requirement but, before I'm told to consider electronics as possible hazardous waste tell me which electronics and why. (0097)
Response: The Agency does not disagree with the above comment. As part of implementing this rule, the Agency will explore ways to improve generator education and awareness. 
Comment: With the flexibility to make the hazardous waste determination in the laboratory, in an on-site central accumulation area or on-site TSDF, the individual in the laboratory generating the waste does not need to be familiar with the RCRA hazardous waste determination process.

Although few academic institutions have opted to follow Subpart K, either because their state has not recognized Subpart K or because they had issues with portions of the rule, the rationale for its promulgation remains valid and relevant. (0110)
Response: The Agency agrees with the above comment.
Comment: Further, EPA should clarify in the final rule that this requirement to make a hazardous waste determination only applies to materials generated as solid wastes. Materials excluded from the definition of solid waste, such as discharges to a Publically Owned Treatment Works (POTW), or hazardous secondary materials reclaimed in a closed-loop, are not solid wastes under 40 CFR §261.4(a)(1)(ii) and §261.4(a)(8) respectively, and, therefore, would not be subject to a hazardous waste determination. (0113)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: TDEC is supportive of EPA's proposed changes pertaining to hazardous waste determinations. (0116)
Response: The Agency appreciates the support of TDEC regarding the proposed changes pertaining to hazardous waste determinations. 
Comment: WMA has a number of concerns regarding these proposed changes to Section 262.11, and opposes these revisions because they impose significant new burdens on SQGs and LQGs (and potentially CESQGs) with no meaningful benefit in protecting human health or the environment.(0117)
Response: The Agency has responded to the concerns of commenters. For example, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes. The Agency is also not requiring generators to maintain records of their hazardous waste determinations until the facility closes. The Agency also has clarified when RCRA waste codes must be identified and placed on containers. Besides this, the Agency has modified regulatory text to clarify different components of the waste determination regulations at 40 CFR 262.11.
Comment: We feel strongly that some of these proposed changes will not only create a potentially dangerous risk to employees, students, faculty and the environment but will also drastically impede the success of hazardous waste programs at colleges and universities by de-centralizing the waste determination process and taking it out of the hands of experienced environmental health safety (EHS) professionals. (0119)
Response: The Agency disagrees with the above comment. In response to other comments, however, we have modified the rule significantly to remove recordkeeping requirements and clarified components of the waste determination regulations at 40 CFR 262.11 to make it easier for generators to comply with the rules.
Comment: We also suggest that sufficient training of generators would be a more effective approach to the waste determination deficiencies cited by the Agency as the basis for these proposed changes, and urge the Agency to consider amending the training requirements to specifically state a requirement to train all generator categories in proper waste determinations. However, this should extend only to facility personnel actively engaged in hazardous waste management, and not operators of satellite accumulation areas. (0121)
Response: The Agency appreciates the commenter's suggestion and may further evaluate its feasibility in the future. 
Comment: UNL supports codifying the waste determination process as written and described in the newly designated 262.11, with the exception of paragraph (e) (Recordkeeping for small and large quantity generators). (0121)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Require manufacturers to provide appropriate Federal and State hazardous waste codes in Section 13 of Safety Data Sheets (SDS), Product Information Sheets (PIS) or other forms of documentation to fulfill the requirements of 262.11 Hazardous waste determination. This will simplify processes to ensure consistent waste determinations for consumer and industrial products, fulfill the record keeping requirements of Title 40, 262.40(c), relieve the uncertainty and financial burden on retailers. (0124)
Response:  We cannot require manufacturers to provide appropriate Federal and State hazardous waste codes in Section 13 of Safety Data Sheets (SDS), Product Information Sheets (PIS) or other forms of documentation to fulfill the requirements of 262.11 Hazardous waste determination because these documents are the responsibility of OHSA and trade associations.. However, we can work with OSHA and trade associations to have their members request such information.
Comment: The new recordkeeping requirements include a provision that would require LQGs and SQGs to "maintain records supporting . . . solid and hazardous waste determinations, including records that identify a material as a solid waste, as defined by 40 CFR 261.2, and records identifying whether that solid waste is or is not also a hazardous waste, as defined by 40 CFR 261.3." The records would be expected to "comprise the generator's knowledge of the waste." 

The phrase "comprise the generator's knowledge of the waste" is quite expansive by its own terms and could conceivably be interpreted to require a record of literally everything a generator knows about a particular waste. The proposed language at section 262.11(e) goes on to specify that records should "include but not be limited to" various types of information listed in the rule. In addition to the listed information, a generator would likely also want to maintain any information that might be relevant in an inspection, or that might be important in defending an enforcement action challenging waste determinations.

We question whether maintaining records of this amount of information (particularly with regard to solid, non-hazardous waste) would provide any additional environmental benefit. Some of the described information is redundant and the recording of other types would be useless if not nonsensical. For example, we cannot envision a situation where a generator would need to consult records "in order to determine the process by which" its own waste is generated. (0126)
Response: In regards to the above comments, first, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators must keep records only for those solid wastes found to be hazardous wastes. Second, regarding the phrase "comprise the generator's knowledge," the types of information identified are meant to be examples of acceptable knowledge a generator might use. These examples are not all inclusive, but illustrative. Regarding the comment that the commenter could not envision a situation where it would consult its records "in order to determine the process by which" its own waste is generated, we disagree. Understanding the process used to generate the waste may provide important information to describe whether the waste is listed, possibly exhibit a characteristic, or is non-hazardous.
Comment: Even before a hazardous/non-hazardous waste determination is made, the rule would require LQGs and SQGs to maintain unspecified records of their initial determinations that a waste is a "solid waste." This requirement is excessive. If a generator considers a particular material to be a solid waste at the outset and then goes on to document its determination of the hazardous or non-hazardous nature of the waste, we see no practical purpose for retaining records of the original solid waste determination. (0126)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment:  Although Eastman agrees that the generator must be able to demonstrate the basis for hazardous waste determinations on manufacturing and non-manufacturing wastes, Eastman is concerned that EPA is too comprehensively rigid in specifying what information MUST be maintained for all waste streams. This is particularly true for waste stream characterization at the point of generation for each individual wastewater stream that discharges to publicly owned treatment works or onsite NPDES permitted wastewater treatment facilities where no land management is involved. (0128)

Response: We refer the commenter to a guidance memo dated April 1, 1985 (RCRA Online #11066).  In that memo, EPA states:
      
            Only the wastewater treatment unit (i.e., the tanks) is exempt; the exemption does not "follow" or attach to the waste. 
            
We also refer the commenter to a Q&A from June 1992 (RCRA Online # 13541), where we expand on the 1985 memo by going on to say:
      
      Consequently, all applicable hazardous management standards apply to the waste prior to treatment in the WWTU, and to any residue generated by the treatment of that waste. In other words, solid waste resulting from the treatment of a listed hazardous waste in an exempt WWTU will remain a listed hazardous waste, and solid waste resulting from the treatment of a characteristic hazardous waste in an exempt unit will remain hazardous as long as the solid waste continue to exhibit a characteristic.  
      
As indicated by this guidance, a generator must make a solid and hazardous waste determination for the wastewaters in order for the wastewaters (and the treatment residues) to be subsequently managed and treated effectively. Making the hazardous waste determination under §262.11 includes identifying all the applicable RCRA waste codes, including listings and characteristics (see §262.11(g)). However, only containers less than 119 gallons that are shipped off-site are required to be marked/labeled with the applicable hazardous waste codes (see §262.32). 

Comment: Eastman understands that it is the responsibility of the generator to maintain adequate documentation to demonstrate the status of solid wastes as either RCRA hazardous or non-hazardous. The key to this understanding is the term "adequate." In proposed rule 262.11(e), EPA states the following: 

These records MUST comprise the generator's knowledge of the waste and support the generator's determination, as described at 40 CFR 262.11(c) and (d). These records MUST include, but are not be [sic] limited to, the following types of information: The results of any tests, sampling, or waste analyses; records documenting the tests, sampling, and analytical methods used and demonstrating the validity and relevance of such tests; records consulted in order to determine the process by which the waste was generated, the composition of the waste, and the properties of the waste; and records which explain the knowledge basis for the generator's determination, as described at § 262.11(d)(2). (emphasis added)

In addition, EPA states the following at 80 FR 57943:

The Agency does not believe requiring generators to retain documents used to make their non-hazardous waste determination will pose an undue burden.

However, as stated, the proposed rule does impose a substantial burden on generators like Eastman because EPA dictates an enormous scope and extent of which records MUST be kept including, arguably, everything the generator knows about the waste. Eastman has developed, at substantial expense, an electronic management information system (EMIS) that tracks waste generation, management and final disposal at its larger facilities. This system includes electronic transfer and maintenance of analytical data, waste stream identification and characterization information as well as other functions. The system addresses land disposal restriction information, regulatory exceptions that may apply (e.g. alcohol exclusion), process description, etc. However, as inclusive as this system is, it does not include all the records encompassed by the rule as proposed. For example all QA/QC data or specifics on every listing included in 40 CFR 261 and why it does not apply are not provided in the system. In addition, some process information such as catalysts, proprietary ingredients and such are not specifically included. Although the listing issue can be addressed if requested or if there is concern or confusion on the part of the agency, the information is not maintained in writing as it has not been deemed necessary to this point after more than a hundred inspections by both state and federal authorities. This would be of particular concern for SQGs who take samples for analyses and receive only the results from the laboratory. In many cases, they may not have the expertise to understand the various QA/QC documentation including matrix spikes, surrogate spikes etc. This degree of specificity is an additional burden for all generator facilities. 

To address this conflict Eastman proposes that the reference to what "comprises the generator's knowledge" be deleted and the remaining language be modified as follows:

"These records may include, but are not limited to, the following types of information: The results of any tests, sampling, or waste analyses; records documenting the tests, sampling, and analytical methods used and demonstrating the validity and relevance of such tests; records consulted in order to determine the process by which the waste was generated, the composition of the waste and the properties of the waste; and records which explain the knowledge basis for the generator's determination as described at § 262.11(d)(2)." (0128)

Response: The Agency has revised the referenced statement to clarify that the types of information listed are examples, and not a mandatory list of documents or information.  However, the records used must comprise the generator's knowledge of the waste that is relevant to making the RCRA determination, and support the generator's determination, as described at 40 CFR 262.11(c) and (d). The Agency is seeking to best ensure accurate waste determinations. In seeking the generator's breath of knowledge and information about their waste, the Agency is seeking to minimize bias in the data set. That is, the Agency is trying to ensure that generators not collect only data supporting their conclusion, while ignoring valid and relevant data that argues for a different conclusion (which the Agency is likely to collect if asked to assess the waste). 

Sampling is necessary to determine whether the resulting test results are representative of the waste  -  as all hazardous characterization determinations must be based on representative samples.

Comment: Eastman supports the following statements at 80 FR 57942 and 80 FR 37943, respectively, and proposes that this clarifying information be included in the rule or as a footnote to the rule as follows:

The Agency does not intend for this provision to apply to those generators that generate a solid waste that clearly has no potential to be a hazardous waste. (80 FR 57942)

Documentation will not be required for entities that do not generate a solid waste, as defined by 261.2 or that generate a solid waste that has been excluded or exempted from RCRA Subtitle C controls. (80 FR 57943)

Because proper waste stream characterization is critical for compliance and protection of human health and environment Eastman believes the wording needs to be clearly vetted to make sure there are no unintended consequences if ALL of the information described is not maintained but assure that ADEQUATE information is maintained in accordance with the intent of state and federal rules. (0128)
Response: The Agency believes the commenter is addressing the issue of non-hazardous waste determination documentation. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Finally, we note that despite the recommendation in the Hazardous Waste Determination Program Evaluation Final Report (April 2013), the proposed rule does not contain any sector-specific information. We encourage the agency to work with industry stakeholders to develop such information to assist the regulated community in making hazardous waste determinations. The balance of this letter contains comments on specific provisions of the proposed rule. (0129)
Response: The Agency intends to explore the feasibility of establishing a dialogue with industry to address the issue of improving the accuracy of hazardous waste determinations. 
Comment: D. ETC Supports Improvements to the Waste Determination Process

In an effort to improve the waste determination process, EPA is proposing to revise the hazardous waste determination regulations at § 262.11. 80 FR 57935. The proposed changes included the following:

(1) confirming that a generator's waste must be classified at its point of generation and, for wastes potentially exhibiting a hazardous characteristic, at any time during the course of its management when the properties of the wastes may change;

(2) revising the language on making a determination for a listed hazardous waste in § 262.11 to explain more fully how generators can make this kind of determination including use of acceptable kinds of generator knowledge;

(3) explain more clearly how a generator should evaluate its waste for hazardous characteristics;

(4) moving the independent and retention requirements for hazardous waste determinations currently found at § 262.40(c) into § 262.11 to integrate this provision more directly into the hazardous waste determination regulations;

(5) revising the hazardous waste determination recordkeeping regulations to require that SQGs and LQGs maintain records of any test results, waste analyses, or other determination made in accordance with § 262.11 for at least three years including waste determinations where a solid waste is found not to be a RCRA hazardous waste;

(6) revising the hazardous waste determination regulations by copying § 262.40(d) into § 262.11 to address situations where an enforcement action has been initiated and the period of record retention must be extended automatically during the course of any unresolved enforcement action; and

(7) making clear at the very beginning of § 262.11 that the hazardous waste determination must be accurate.

ETC agrees that these proposed revisions will allow for safer management of hazardous waste, provide hazardous waste generators with greater clarity as to what their responsibilities are under § 262.11, and lessen the difficulties generators have historically had when attempting to make an accurate hazardous waste determination. (0134)
Response: The Agency appreciates the comments of this commenter with respect to improving the waste determination process. We note, however, that not all the changes the Agency proposed have been finalized. 
Comment: Ultimately, final waste determinations are best, and most accurate, when performed by highly trained environmental health and safety staff either at the time the waste is removed from the laboratory or in the central accumulation area. (0136)

Response: We agree that the final waste determinations are best, and most accurate too, when performed by highly trained environmental health and safety staff, but at the point of generation. If the final waste determination must wait until it is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation, manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-sire or on-site for subsequent waste management. 

Comment:   UofL believes that requiring a documented waste determination plan is a superior and more feasible approach. 

As an alternate to EPA's proposed rule language in 40 CFR 262.11(a) and §262.11(e), UofL suggests EPA instead require all generators of hazardous waste to have a documented process and plan for conducting waste determinations at the facility. This plan could be required to provide in detail how an entity performs waste determination (e.g., using process knowledge, safety data sheets, analysis, etc.) and would address EPA's stated determination and recordkeeping shortfalls of the current rule. A written waste determination plan could be required for all generators and available for inspection.
 (0139) 

Response: The Agency agrees with the above comments. We note, however, that based on other comments, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations.

Comment: An organization should be able to do a waste determination at the organizational level with environmental compliance professionals if there is a clear management system in place. A specialized dedicated group of an organization can ensure the safe management of hazardous waste by developing and training staff in easy-to-understand procedures, and by providing prompt and easy-to-use removal services for unwanted materials. Regulatory flexibility in how these wastes are managed is critically important for the safe management of all waste types. The physical location of the determination should not be rigidly prescribed and EPA should simply require that generators develop and implement appropriate procedures to ensure that accurate waste determinations are made in a manner that ensures proper management of the waste. (0140)

Response: We agree that waste determinations are best performed by a specialized, dedicated group of professionals, but at the point of generation. If the final waste determination must wait until it is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-sire or on-site for subsequent waste management. 

Comment: NDEQ generally supports the proposal to revise the hazardous waste determination regulations at §262.11 in order to provide a more complete explanation of the regulation and improve compliance by hazardous waste generators. NDEQ agrees that the cornerstone of the RCRA hazardous waste regulatory program is the determination requirement and that the importance of generators making an accurate hazardous waste determination cannot be overemphasized.

Within the larger proposal, NDEQ particularly supports the proposals to include the acceptable types of information associated with using generator knowledge to identify both listed or characteristic wastes, proposed for §262.11(c) and (d)(2), respectively. Use of generator knowledge to meet the determination requirement is an area which regularly requires time, discussion, and analysis by inspectors and other compliance staff. Though the proposed types of information still offer flexibility and state agency discretion in determining how the determination requirement may be met by generator knowledge, the proposed examples assist these discussions and offer direction to generators where none exists in regulation currently. (0145)
Response: The Agency appreciates the support of NDEQ with respect to the waste determination provisions in this rule. 
Comment: 2. B2. Proposed waste determination process will be very difficult for generators to comply with and will not result in increased protection of human health or the environment. (0154) 
Response: The Agency disagrees with the above comment. However, the changes we have made in response to other commenters should alleviate many of this commenter's concerns. 

Comment: :: P. 57938 / Section 3  -  Hazardous Waste Determination (When and Where): The University does not anticipate any impact, positively or negatively, from this proposed rule change. (0172)

Response: The Agency thanks the commenter for this comment. .

Comment: The proposal to require increased documentation and recordkeeping will create a significant burden at the laboratory level and would not be expected to enhance the management practices for solid waste. (0173)

Response: The Agency believes the commenter is addressing the issue of non-hazardous waste determination documentation and maintaining records of waste determinations until the facility closes. The Agency is not finalizing either of these provisions. Therefore, s this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Preamble Section VIII.B. CT DEEP concurs with EPA's proposal to revise the requirements that generators must follow to determine if their waste is hazardous ("hazardous waste determinations"). In particular, CT DEEP supports EPA's addition of language requiring that hazardous waste determinations be made at the point of generation, that the determinations must be accurate, and that generators must retain documentation of these determinations. CT DEEP notes that a requirement to document hazardous waste determinations has been included in Connecticut's hazardous waste regulations for more than 10 years, and has proven to be very effective in ensuring that generators properly classify their wastes. This documentation requirement also makes it much easier for CT DEEP inspectors to determine compliance with the hazardous waste determination requirement, and helps avoid disputes over whether or not a generator has properly classified a particular waste. Although this requirement has increased the compliance burden on generators to a certain degree, it is CT DEEP's belief that any such burden has been more than made up for by reductions in the number of enforcement actions issued for inadequate hazardous waste determinations, and by reductions in the number of misunderstandings between CT DEEP and generators during inspections about the classification of their wastes.

CT DEEP also supports EPA's proposal to clarify that generators must perform and document "negative" determinations (i.e., determinations that a waste is not hazardous). CT DEEP notes that it has always interpreted 40 CFR 262.11 as requiring this, and has consistently enforced it this way. Nevertheless, CT DEEP has had enforcement cases where the argument has been made that violations of §262.11 may only be cited in instances where the waste turns out be hazardous, and clarifying this matter will serve to preclude those types of arguments. (0178)

Response: The Agency appreciates the comments from CT DEEP. However, the Agency did not finalize the proposed recordkeeping requirements for non-hazardous waste determinations and maintaining records of waste determinations until the facility closes. In the first instance, while we believe requiring such documentation would help improve compliance in this area, in retrospect, requiring such documentation would not get at the root cause of this problem, which we believe to the need for generators to have clear processes and procedures for making accurate hazardous waste determinations.  Regarding the second proposal for which we took comment on, the costs far outweighed the benefits. The Agency will examine other options in the future.

Comment: On the matter of hazardous waste determinations, CT DEEP would also suggest that EPA consider adding a requirement for generators to repeat or "revisit" their hazardous waste determinations when appropriate. CT DEEP's hazardous waste regulations include a provision requiring generators to perform a hazardous waste determination on each waste stream at least once every twelve months or whenever there is a process or material change that could affect the waste. Although EPA's proposed language requiring that hazardous waste determinations be "accurate" addresses this issue to a certain degree, CT DEEP chose to be more explicit about when hazardous waste determinations should be repeated because it was constantly finding situations in which generators were relying on data that was years old and clearly out of date. CT DEEP would also note that the annual re-characterization requirement need not necessarily be met through total and complete reanalysis of the waste; rather, in many cases, it may be possible to use "knowledge of process" type information to document that there have been no changes to the process or the raw materials used that could have resulted in a change in the waste. (0178)

Response: The Agency applauds CT DEEP's waste determination provisions and is interested in better understanding the costs and benefits of requiring the annual re-evaluation of a generator's waste determinations.  

Comment: Proposed Rule Language, §262.11, Hazardous Waste Determinations. CT DEEP strongly supports the proposed changes to §262.11. CT DEEP believes that these changes make important clarifications regarding: (1) the need to perform so-called "negative determinations"; (2) the point in time at which hazardous waste determinations must be made; (3) clarification of the types of knowledge of process that are acceptable when making hazardous waste determinations; and (4) the need for generators to document the basis for their determinations. However, CT DEEP has the following comments on proposed §262.11: 

a.) Proposed §262.11 states that a generator must determine if a waste exhibits one or more of the characteristics of hazardous waste "by following the procedures in either paragraph (d)(1) or (2) of this section" [emphasis added]. CT DEEP notes that generators often use both analytical testing in accordance with 40 CFR Part 261 (paragraph (d)(1)) and knowledge of process information (paragraph (d)(2)) when performing a hazardous waste determination for a particular waste stream, and considers this acceptable (if not preferable in some cases), provided that it results in an accurate determination. For example, a generator may use knowledge of process to rule out the characteristic of toxicity for herbicides and pesticides, but use analytical testing (e.g., a TCLP test) to assess the waste for the remainder of the toxicity characteristic. CT DEEP believes that EPA should modify this language to clarify that both procedures may be used in this manner. (0178)

Response: The Agency has revised the regulatory language to clarify that both analytical testing and knowledge of the waste may be used in determining whether a waste is RCRA hazardous.  The Agency's focus is on ensuring as best we can that RCRA determinations are accurate.  Generators may use a combination of testing and knowledge if this is the most cost-effective way of making an accurate determination, as appears to be the case for the commenter's example.

b.) CT DEEP supports the language in proposed §262.11(d)(2) which clarifies that analytical tests other than those set forth in 40 CFR Part 261 may be used as part of a generator's "knowledge of process" information in making a hazardous waste determination. CTDEEP has interpreted the existing §262.11 as allowing this, and believes that such information can be useful as part of a larger body of information used to make a determination, provided it is technically sound and accurate.

Response: The Agency appreciates CTDEEP's support in this area. 

c.) As noted above, CT DEEP strongly supports the proposed recordkeeping requirements of proposed §262.11(e). CT DEEP has had a very similar requirement in our state regulations for more than ten years, and this requirement has proven exceptionally effective at ensuring that generators properly perform hazardous waste determinations, in preventing misunderstandings between generators and CT DEEP regarding waste determinations, and in avoiding the need for inquiries for additional information pursuant to RCRA inspections. However, CT DEEP believes that this requirement should not just apply to SQGs and LQGs under the proposed rule, but also to very small quantity generators (CESQGs). CT DEEP's hazardous waste regulations currently require CESQGs to document their hazardous waste determinations, and CT DEEP has found that this requirement has proven very important to ensuring that CESQGs are properly classified as such. Without documentation of proper waste determinations, it can be difficult (or impossible) to determine if the generator is truly a CESQG.

Response: The Agency is not finalizing the requirement that CESQGs/VSQGs document their hazardous waste determinations. Therefore, this comment is no longer applicable. 

d.) §262.11(e) includes the statement that "[g]enerators may wish to segregate any of their municipal solid waste from other solid and hazardous waste to avoid potential co-mingling." It is not clear to CT DEEP whether EPA included this language to: (1) simply offer helpful advice; or (2) imply that a generator can avoid having to perform a waste determination on their municipal solid waste by keeping it separate from other solid wastes and from hazardous wastes, either of which could contaminate it and necessitate a waste determination. CT DEEP has no issue with the former; however if it is the latter, CT DEEP would point out that any number of items might wind up in "municipal solid waste" that could render it hazardous, if generated at a non-residential site. This could include items such as rechargeable batteries, fluorescent lamps, cleaning products, aerosol cans, etc. As a result, CT DEEP believes that it is necessary for generators to perform waste determinations even on the municipal solid waste that is produced at their site. However, this determination need not be exhaustive; rather, it can often simply consist of routinely checking municipal solid waste containers for items such as the above, establishing procedures for the proper management of such materials, and training on-site personnel so that they do not place these items in the site's municipal solid waste. CT DEEP requests that EPA clarify the meaning and intent of this language so that it is not misinterpreted as a statement that municipal solid waste is categorically non-hazardous and exempt from waste determination requirements.
Response: The Agency is deleting the sentence regarding the co-mingling of wastes proposed at § 262.11(e). With the Agency addressing the mixing of solid with hazardous wastes by generators at § 262.13(f), this statement in § 262.11 is not needed.

e.) Further along in proposed §262.11(e), there is a statement that "[t]he records must include, but are not limited to, the following types of information...". CT DEEP believes that the words "as applicable" should be added onto the end of the above language, since not all of the information listed would be necessary for every waste determination. (0178)
Response: The Agency believes adding the words "as applicable" to the end of the mentioned sentence is not necessary because we believe the regulatory text, as finalized; i.e., "The records must include, but are not limited to, the following types of information:"  is sufficient to capture the same idea as CT DEEP. 
Comment: The Port Authority requests clarification on the types of non-hazardous waste determinations that are mandatory under this proposed change, as well as the documentation that would be required in order to support these determinations. For example, would MSDSs be required? If so, would a non-hazardous determination on the MSDS be sufficient to prove that the waste is non-hazardous? When would testing be required and to what extent? If the generator has general knowledge and expertise in making a non-hazardous waste determination, how would this need to be documented?

Without these types of clarifications, it would be burdensome and costly for the Port Authority to document and track every type of non-hazardous waste. The Port Authority requests that MSDSs be considered sufficient to prove that a waste is non-hazardous and that testing would not be mandated (0179)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: KULC-EHS supports some of the proposed changes relative to waste determinations with the exceptions described herein. KULC-EHS is opposed to the Agency's proposal to require SQGs and LQGs to maintain records of waste determinations where a solid waste is found not to be a RCRA hazardous waste, as well as the amount of information that is proposed to suffice as an acceptable record. This could easily be taken to an extreme and is particularly worrisome at institutions such as KULC where literally tens of thousands of small waste streams (often in milliliter quantities) of highly variable nature are generated each year. (0183)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The idea that "hazardous waste determination should be done by all employees instead of some" would be an extremely inefficient and perilous method of managing hazardous waste. Adding the level of complexity and understanding of chemistry that is required to make proper hazardous waste determinations is beyond the capability of many employees. Forcing all employees to make a hazardous waste determination does not improve safety, in fact we believe it would do just the opposite. Having highly trained EHS personnel consult with the hazardous waste generators at their facilities and then make the hazardous waste determinations is the safest method and not a process that we need to experiment with. (0186)
Response: We agree that waste determinations are best performed by a specialized, dedicated group of professionals, but such determinations must still be done at the point of generation. If  final identification of the RCRA waste codes must wait until  the waste is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-sire or on-site for subsequent waste management. 
Comment: It would be impossible for Health Safety employees to train this number of research personnel and other employees sufficiently to make hazardous waste determinations on their own - there is simply not time in their daily schedules nor does Health Safety have the personnel required to accomplish this task. Our research personnel are under increased strain with a dwindling availability of research grant dollars and subsequent increase in competition for these funds. We need our research personnel (and research personnel across the nation) to be focused on what they do best - performing research, not performing hazardous waste determination training. (0186)
Response: We agree that waste determinations are best performed by a specialized, dedicated group of professionals, but such determinations must still be done at the point of generation. If  final identification of the RCRA waste codes must wait until  the waste is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-sire or on-site for subsequent waste management. 
Comment: The proposed regulations indicate that the hazardous waste determination for each solid waste must be made at the point of waste generation. Current regulations do not designate where the waste determinations must be made. The researchers in academic laboratories are trained to collect the appropriate waste streams in their Satellite Accumulation Area (SAA) for disposal. Although these individuals are familiar with the chemical constituents and the properties of these chemicals, they are not familiar with the detailed regulatory waste classifications. There are mechanisms to make the necessary waste determinations prior to disposal. Currently, these waste determinations are made by EHS staff or hazardous waste vendors with a high level of RCRA and DOT familiarity, when the waste is removed from the SAA. Large Universities can have more than one thousand individual SAA's throughout their campuses, each managed by different individuals. Although the proposed regulations may encourage many academic institutions to opt-in to the Subpart K regulations, this is undesirable for many large institutions with well established hazardous waste management and compliance programs. The proposed expectation to train more than one thousand individuals to make detailed hazardous waste determinations and assign an appropriate regulatory designation (i.e. RCRA, DOT, NFPA, etc.) does not improve compliance and places undue burden on generators. The hazardous waste determination regulations are acceptable in their current form. (0187)
Response: We agree that waste determinations are best performed by a specialized, dedicated group of professionals, but such determinations must still be done at the point of generation. If  final identification of RCRA waste codes must wait until  the waste is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-sire or on-site for subsequent waste management. 
Comment: SOCMA opposes four aspects of the proposal related to making waste determinations. In all four cases, the existing rules are fully adequate. Moreover, the burdens discussed below would  -  literally  -  be increased exponentially nationwide by EPA's proposal to impose waste determination obligations on VSQGs. EPA's rationale seems to be that LQGs and SQGs aren't doing a good enough job at the task, so EPA will impose it on between 4-7 times as many entities, all of which are smaller and less able to afford to comply. (0192)
Response: CESQGs/VSQGs are not affected by the changes to 40 CFR 262.11. However, they continue to be subject to making an accurate hazardous waste determination. 

Comment: Clearly, the writers of this section of the preamble are not familiar with specialty batch chemical manufacturing companies, which comprise the bulk of SOCMA's membership. Many of our members generate hundreds of not thousands of waste streams per year, and their product lines often change from month to month, let alone from year to year. The notion of "generat[ing] the same hazardous waste streams from year to year" and thus needing to make a solid waste determination once is far from the reality of batch manufacturers. The very nature of batch manufacturing consists of very frequent changes to their manufacturing processes. In these cases, the burden would most assuredly not be minimal, and would be disproportionately felt by small and medium sized businesses. (0192)
Response: The Agency believes the above comment refers to their first comment associated with CESQGs/VSQGs having to document their waste determinations. As stated above, CESQGs/VSQGs are not affected by the changes to 40 CFR 262.11 in the final rule. However, they continue to be subject to making an accurate hazardous waste determination.

Comment: And yet again, EPA does not cite specific evidence of actual environmental damage resulting from these asserted misidentifications. The failure to make accurate waste determinations, potentially leading to the mismanagement of waste and environmental damages, does not, by itself, justify a new regulatory action. This is particularly true when, as previously noted, the estimated costs of the rule outweigh the benefits. For starters, in citing studies which show different non-compliance rates (ranging from 13 - 38%), EPA really only demonstrates problems with its data collection and enforcement. (0192)
Response: The Agency disagrees with this commenter.  First, the Agency refers the commenter to the docket where numerous situations (i.e., damage cases) were identified where EPA had to take removal actions because generators failed to manage their hazardous wastes safely. Second, while waste determination non-compliance statistics, in and of itself, do not lead directly to environmental damages, it does clearly indicate that hazardous wastes are being mismanaged in that they are not being disposed of in a RCRA permitted Subtitle C facility. Third, the Agency takes issue with the last comment about non-compliance rates only demonstrating problems with its data collection and enforcement since no evidence is provided to prove the statement. 
Comment: 262.11 Waste determinations
The proposed rule and pre-amble only address the changes to wastes that move from non-hazardous to hazardous. Will the rule be interpreted to be implemented in instances where a waste which may be hazardous at that point of generation but subsequently becomes non-hazardous even during compliant accumulation? (0196)
Response: Yes, the Agency is equally concerned about such situations and the final regulatory language at 40 CFR 262.11 (a) accounts for such situations; i.e., (a) The hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste such that the RCRA classification of the waste may change.
Comment: 262.11 Waste determination documentation
Overall, strong support of the proposed rule but concerns with how this would be applied in RD and university settings where Subpart K is not implemented. Would a general statement regarding waste types/groups be allowed? Could data be shared across generators performing like or similar research processes? (0196)
Response: We agree that waste determinations are best performed by a specialized, dedicated group of professionals, but such determinations must still be made at the point of generation. If final identification of RCRA waste codes must wait until  the waste is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-site or on-site for subsequent waste management.
Similarly, we will consider the commenters' suggestions regarding sharing information/practices for consistency and will continue to work closely with the Office of the Science advisor regarding this suggestion. We also will continue to work with other EPA offices affected by regulatory updates, and provide clearer hazardous waste descriptions. 

Comment: While NMA agrees that it is important that generators make an accurate hazardous waste determination, we believe that EPA's proposals needlessly complicate the existing requirement, which from our members experiences results in reliable hazardous waste characterizations. Accordingly, NMA opposes the proposed revisions to Section 262.11. If there are discrete compliance issues with particular types of wastes (for example solvent-contaminated wipes and aerosol cans are mentioned in the preamble), EPA should issue guidance to resolve those issues and provide appropriate compliance training instead of overhauling the regulations to implement a more expansive documentation and recordkeeping program that in turn creates additional compliance problems due to the impractical nature of documenting each solid waste determination. (0200)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations, as well as requiring retention of all waste determinations until the facility closes. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 2. Waste Determinations: EPA is proposing several changes to Section 262.11, which the agency claims are "designed to improve compliance by generators in making a hazardous waste determination for their solid wastes." However, the proposed revisions unnecessarily complicate the regulations without any justified benefit to human health or the environment, are not supported by the administrative record, and impose significant new burdens on SQGs and LQGs (and potentially CESQGs) with no meaningful benefit in protecting human health or the environment. Additionally, to the extent that EPA attempts to submit non-hazardous waste to a RCRA Subtitle C regulation, the proposed rule exceeds EPA's authority. (0200)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations, as well as requiring retention of all waste determinations until the facility closes. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: As proposed, both lab and operations personnel will be subject to labeling, training, and documentation requirements far in excess of what is needed to control the hazards of their day-to-day operations. Proposed rules will create a need for a constant stream of high level training to ensure effective determinations by hundreds of individuals, and provide little recourse for environmental health and safety (EHS) professionals to redirect a waste incorrectly determined to be hazardous into an appropriate non-hazardous disposal or recycling pathway. Operations will still be subject to these changes even if a College or University can find partial relief in subpart K; thus a two tiered management system and duplicative management burdens are created. (0202)
Response: The Agency recommends that colleges and universities work with their states to adopt Subpart K provisions because these provisions will address the proposed changes to 40 CFR 262.11.  We also agree that waste determinations are best performed by a specialized, dedicated group of professionals, but such determinations must still be made at the point of generation. If the  final identification of RCRA waste codes must wait until  the waste  is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-sire or on-site for subsequent waste management.
Comment: Many of these proposed changes are derived from policy letter, guidance, and clarifications that EPA has made through the years to help explain how hazardous waste determinations should be made. The proposed changes also derive from issues identified in EPA's 30 years of experience implementing the RCRA hazardous waste program. EPA's proposed rule clarifies issues that were only previously addressed in guidance.

This proposed rule change will have a slight impact on Wisconsin's facilities. WDNR asks that generators be allowed to voluntarily `declare' their non-hazardous waste to be a hazardous waste. A declared hazardous waste is not in the RCRA regulations; however, it is mentioned in the December 18, 1978; 43 FR 58969. There are some circumstances when declaring a non-hazardous waste to be a hazardous waste is a benefit for the environment. One example is classifying an extremely toxic waste as a hazardous waste even though the extremely toxic waste is not a characteristic or listed hazardous waste. In addition, since a generator needs to use objective knowledge when making a hazardous waste determination, the word `objective' should precede the word `knowledge'. (0206)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 4. AGA Encourages EPA to Treat Testing- and Knowledge-Based Characteristic Waste Determinations Equally

In determining whether a waste exhibits one or more hazardous characteristics, a generator may either test the waste using a test method specified in the regulation or apply knowledge of the hazard characteristic of the waste in light of the materials or the process used. 40 C.F.R. § 262.11(c). Historically, the regulations treated a determination made pursuant to either method  -  testing or knowledge  -  equally. However, under the Proposed Rule, for those characteristics that include a specific test as part of the regulation, the results of that test would be "definitive for determining whether the waste is hazardous." 80 Fed. Reg. 57940. AGA encourages EPA to reconsider this approach and remove any distinction regarding the validity of waste determinations made pursuant to either method in the final rule.

In stating that the results of a regulatory test are definitive for determining the regulatory status of a waste, EPA has undercut the certainty associated with the use of knowledge as a method for determining a waste's characteristics. EPA has provided no support or justification for why a test result should be provided greater weight than a knowledge-based determination. EPA's proposal could unnecessarily encourage many generators to undertake testing, if for no other reason than regulatory certainty. This would impose significant costs and unnecessary burdens on generators that continuously generate the same types of waste and rely on knowledge to support their determinations.

AGA recognizes that EPA is seeking to ensure that generators are accountable for making valid waste determinations. One possible solution that would allow either knowledge or testing to be definitive would be to add a provision at 40 C.F.R. § 262.11(d) allowing generator knowledge to be definitive when based on material safety data sheets that comply with requirements of the Occupational Safety and Health Administration for discarded commercial products. This would provide generators with certainty in making knowledge-based determinations without having to result to unnecessary testing. (0213)
Response: The Agency agrees with the commenter and has modified the regulatory text to acknowledge that both knowledge and testing of the waste have equal weight. 
Comment: Waste Determination Documentation for Very Small Quantity Generators

EPA requests comment on a possible requirement that VSQGs prepare waste determination documents and retain them. See 80 FR at 57946/col. 1. Industrial Generators oppose such a requirement. VSQGs have historically been subject to minimal RCRA standards due to the limited quantity of waste that they generate and their lack of familiarity (relative to other generators) with the waste regulations. Most VSQGs rely on third-party intermediaries, brokers, and waste management companies to profile their wastes, and to assist the VSQG in ensuring that the hazardous wastes are properly handled and disposed. EPA has not justified the burden that a requirement to prepare and retain waste determination documents would place on VSQGs given that they generate such a minimal amount of hazardous waste. Further, the TSDFs that receive the wastes from VSQGs for treatment or disposal are already required to maintain records of these wastes, so requiring VSQGs to retain the same information would be largely redundant. (0219)
Response: CESQGs/VSQGs are not affected by the changes to 40 CFR 262.11 in the final rule. However, they continue to be subject to making an accurate hazardous waste determination.
Comment: Alternative: Clarify the definition of "Waste Determination." The person who generates the waste must be trained to properly label the waste and feed it into the correct waste stream; this is Step #1 in "waste determination" and rightly belongs at the point of generation. The second step in waste determination involves segregating, labeling, assigning waste codes and packaging for transport; this belongs with a trained professional and can happen anywhere at the site, including a CAA. EPA acknowledged this in Subpart K with laboratory workers. We propose that EPA extend that logic to all generators.  (0221)

Response:  CESQGs/VSQGs are not affected by the changes to 40 CFR 262.11 in the final rule. However, they continue to be subject to making an accurate hazardous waste determination.
Comment: 9. Waste Determinations  -  p. 57936
The department supports all of these changes as being more useful for the generator and inspectors alike and for legitimizing the generator's determinations by the retention of records on both hazardous and non-hazardous determinations. We believe this will help to more quickly resolve questions and avoid unnecessary expenditures of facility manager's and inspector's time when questions arise on whether an adequate waste determination was performed. It is also important to codify long-standing guidance on wastes that change during storage to help generators avoid safety issues and violations.

We support the expansion of this section with additional information gleaned from guidance to better guide the generators in making waste determinations. This is justified considering that compliance with all other hazardous waste requirements hinges on whether or not an accurate waste determination has been done. It would also aid facilities and inspectors if generators would document any exemptions they are claiming so all parties are aware. This is a logical part of making a determination. States have likely found that a facility may have incorrectly applied an exemption, disposing of hazardous waste as solid waste or recycling without correct applicability with potentially long term and damaging consequences. This would save time on inspections and would help avoid time-consuming and unnecessary follow-up. It is as logical to request documentation on the foundation for why a waste is not hazardous as well as why it is. (0223)
Response: The Agency appreciates the support of the Missouri Department of Natural Resources regarding the proposed changes to the waste determination regulations. However, the Agency did not finalize the proposed recordkeeping requirements for non-hazardous waste determinations and maintaining records of waste determinations until the facility closes. In the first instance, while we believe requiring such documentation would help improve compliance in this area, in retrospect, requiring such documentation would not get at the root cause of this problem, which we believe to be the need for generators to have clear processes and procedures for making accurate hazardous waste determinations.  Regarding the second proposal for which we took comment on, the costs far outweighed the benefits. The Agency intends to examine other options in the future.

Comment: As a broader issue, EPA appears to be seeking more accurate waste determinations, but instituting a record-keeping requirement is not a solution to the complexity in the waste determination requirements. These issues remain largely unaddressed in this Generator Improvements Proposal. (0224)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: A. Difficulties implementing hazardous waste determination requirements are not Addressed

First, in many ways the Generator Improvements proposal addresses the symptoms and not the cause of the difficulties generators have in implementation of this program  --  namely, the proposed rules do not address the difficulties with hazardous waste characterizations. Determining if a waste is a hazardous waste is the initial step in determining whether these proposed rules apply, let alone whether there is proper inspection, record-keeping, and other requirements that are included in these proposed rules. 
The Generator Improvements Proposal does not address these concerns. If EPA wants to truly improve generator compliance, it must address the waste determination portion of the hazardous waste program. (0224)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. One reason we are not finalizing this requirement is because, in retrospect, we do not believe recordkeeping will get at the root cause of this problem. The Agency intends to examine the feasibility of developing a dialogue with industry to determine what may be done to improve waste determinations. 
Comment: EPA is proposing to modify the recordkeeping requirements for small and large quantity generators to include maintenance of waste determination records for both solid and hazardous waste. TCCI member companies understand that it is the responsibility of the generator to maintain adequate documentation to demonstrate the status of solid wastes as either RCRA hazardous or non-hazardous. However, TCCI believes that it is improper for EPA to specify the exact documentation that is necessary for each waste. (0225)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: §262.11 (a) Hazardous waste determination and recordkeeping.

The proposed requirement for a hazardous waste determination to be made at the point of waste generation before any dilution, mixing, or other alteration would create undue hardship on higher education sector institutions, particularly in research and teaching laboratories. Laboratories, art studios, maker spaces, and other research and teaching operations generate constantly changing waste streams at infrequent or erratic intervals. The population of students, faculty, and staff is constantly changing.

We know from experience that we can achieve greater safety and compliance when an institution issues guidance to laboratory workers and other generators so they are informed about aspects of chemical waste such as the characteristics, the regulatory listing, safe collection and storage, what can be mixed together safely, and labeling. This is followed up with procedures for final waste determination, performed by highly trained personnel such as environmental health and safety staff either at the time the waste is removed from the laboratory or in a central accumulation area.

Our experience is that generators are much more likely to take a cautious approach and collect and offer chemical waste that is not regulated by RCRA than to dispose of the waste in a manner that poses a risk to human health or the environment (e.g., via the sanitary sewer or municipal solid waste). Thus, the proposed changes that clearly state that waste determination must be conducted at the point of generation may make it more likely rather than less likely that a laboratory worker would dispose of a chemical waste improperly, due to the complexity and added burden this change would place on the generator.

This change would clarify the requirement that hazardous waste determinations be made in the laboratory at the process outflow, in the laboratory apparatus effluent, or on the research bench. Multiple determinations may be necessary if the effluent or outflow changes during this process. Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point.

Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. In addition, this would remove the environmental health and safety professional from involvement in the formal determination at a central accumulation area.

EPA recognized this difference from how general industry makes waste determination in its preamble to Subpart K (71 FR 29728).

With the flexibility to make the hazardous waste determination in the laboratory, in an on-site central accumulation area or on-site TSDF, the individual in the laboratory generating the waste does not need to be familiar with the RCRA hazardous waste determination process.

Although few academic institutions have opted to follow Subpart K, either because their state has not recognized Subpart K or because they had issues with portions of the rule, the rationale for its promulgation remains valid and relevant. (0226)
Response: We agree that waste determinations are best performed by a specialized, dedicated group of professionals, but such determinations must still be made at the point of generation. If the the final identification of RCRA waste codes must wait until  the waste is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-site or on-site for subsequent waste management.
Regarding the last comment, the Agency agrees that the rationale for the Subpart K program remains valid and relevant. 
Comment: Despite the EPA's efforts to tailor RCRA regulations to non-manufacturing sectors, the proposed rule falls short of its intended goal to promote flexibility and efficiency for universities. In particular, the sections on hazardous waste determinations, record keeping requirements for waste determinations, and the additional marking and labeling requirements for waste containers are poorly suited to the academic environment.In earlier proposals, EPA acknowledged the need for alternative rules to address the specific nature of hazardous waste generation in college and university laboratories in its Standards Applicable to Generators of Hazardous Waste, Subpart K - Standards Applicable to Academic Laboratories. In addition, EPA suggested that universities could mitigate the burdens of the proposed rule by adopting Subpart K. (0228)
Response: The rationale for the Subpart K program continues to remain valid and relevant.
Comment:  EPA should use this Proposal to clarify that generators, or at least retail generators, may "reasonably" utilize their businesses knowledge to determine their yearly generator status. EPA should provide generators guidance on what type and amount of information it would need to have to meet the "reasonableness" standard. EPA could use the Final Rule to specify to retail generators that they may use hazardous waste generation data gathered from past generation to establish generator status for current and future operations. Retail generator status could be determined by establishing an average for each retail store on an annual basis, such as taking the total annual volume and dividing it by twelve months to derive an average monthly volume. For example, as long as the average monthly volume is below 220 lbs., then the store would be CESQG.

As detailed in the comments submitted by the Retail Associations, there is no legal constraint on the EPA providing guidance on what is an acceptable methodology for a generator to establish its monthly waste generation totals. [Footnote 15: Retail Associations' Comments to Proposed Rule, December 23, 2015, page 38.] The law requires a generator to determine its generator status on a monthly basis - however, it does not state how to do so with any specificity. EPA is not legally restrained from acknowledging that Walmart has clearly done enough to determine its status through detailed data gathering. Since 2007, across thousands of facilities, our stores have never generated on average more than 220 lbs. of hazardous waste per month. Surely, that level of data should be legally sufficient for a retail generator such as Walmart, to determine its generator status. EPA needs to use the Final Rule to make that clear and to set forth acceptable parameters for retailers to use business knowledge and waste data to determine generation status on a forward-looking basis.

So long as the generator does have a legitimate, data supported rationale for its conclusion, EPA should be willing to allow averaging. Practically, "averaging" would solve a huge issue for retailers. Under an averaging methodology, the retailer simply needs to know its yearly waste generation totals, which it can collect from its hazardous waste contractors. It can use that data, and its knowledge that there will be no major business changes at that facility, to project its generator status forward and operate its RCRA programs accordingly. Many retail businesses do this already. Even large chains with small facilities, like convenience stores, use their business knowledge to determine they are CESQG. Very few, if any, are actually weighing their monthly waste generation amounts. One major pharmacy chain, in their NODA response, indicated that their stores average less than 10 lbs. per month. What is the value of continuing to make them track specific waste generation totals on a monthly basis, other than to prove the obvious? If EPA does not deal with the "look back" issue, retailers must continue to always operate an SQG or LQG compliant program based on the chance that one or two months of the year a facility might cross the thresholds.

Taken to the extreme, the "look back" problem means that even a hot dog stand vendor with a cart on the corner, would never be able to claim CESQG status based on his knowledge that his business obviously never generates more than a few aerosol cans or cleaning products a month. He would be forced to track and maintain his actual waste generation numbers and not dispose of his wastes until the end of the month when he can prove his generator status. That makes no practical sense, especially when it would apply equally to every single small business in the country. In essence, Walmart is making the same point as the "hot dog stand," albeit with a much greater level of data and precision; we "know" our generator status. Our business knowledge should suffice, and this Proposed Rule, when finalized, should make that clear.

Walmart appreciates EPA's attempt in this Proposal to give generators limited flexibility to deal with episodic generation events, but the proposed solution does not fit with the reality of the Retail Sector and appears designed for other types of businesses. Retail does not cross the threshold due to planned events, and unplanned episodic events, while rare in any single facility, are likely to happen more than a thousand times a month for the sector as a whole.

Therefore, Subpart L, as structured in the Proposal, is simply not practical for retail stores or regulatory agencies. Implementing the EPA's proposed changes will simply be a meaningless paperwork exercise. Practically speaking, what benefit will EPA derive from thousands of letters informing them that retail stores generated more than 220 lbs. of consumer product hazardous waste in any given month? Finally, many state agencies have already devised various policies in order to manage the current burden retailers have placed on their systems when it comes to changing generator status. With this new Proposal, States will lose their ability to adopt policies to manage that burden, which could create significant burdens on States' resources. The better solution is for EPA to use this rule to define what type of information is appropriate for a retail business to collect to be able to document their average generator status so that they are able to project that status into the future as long as the business model does not change. This would end the "look back" conundrum that is a huge burden on our sector. (0233)
Response: The Agency examined the possibility of including alternative methods for generators to determine their generator status, such as averaging monthly generation rates, rolling averages, etc. However, the statute clearly states that generator status shall be determined on a monthly basis. 
Regarding the comment about Subpart L not being practical for retailers, the Agency developed this provision for all generators, not just retailers. However, the Agency continues to believe that situations may arise where a retailer may be able to take advantage of this provision.    
Comment: As EPA recognized through the Retail NODA process, reform of RCRA's application to the Retail Sector and consumer products is necessary. Applying full Subtitle C regulation to only 1% of the discarded consumer products does not produce any tangible environmental or human health benefits. It also comes at a significant economic cost, placing an undue regulatory burden on a sector of the economy ill-equipped to handle it. For the reasons discussed in the Retail Sector's responses to the Retail NODA, retail stores face extraordinary hurdles attempting to comply with RCRA, including large numbers of locations and the requirement to evaluate millions of unique consumer products against RCRA's complex waste characterization scheme.

More reform is needed. Statements in the preamble to the Proposed Rule make incorrect assumptions about the burden of making waste determinations and the number of waste streams that the Retail Sector confronts under RCRA. Retailers can have millions of different waste streams over time if each product UPC is considered to be a different waste stream. The product mix changes on a daily basis. (0233)
Response: The Agency is unsure of what problem the commenter is trying to address with the above comments. We believe it may have to do with recordkeeping requirements. Therefore, in response, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: a. FPA generally supports clarification of where and when to make a hazardous waste determination, but requests confirmation of its understanding where "F-Listed" hazardous wastes are characterized.

Proposed new 162.11(a) would state that a hazardous waste determination must be made at the point of generation (i.e., when the material becomes a "solid waste"), and not, as some historic state and federal guidance has suggested, at a later point in the process where other materials could be mixed with the waste and where the waste changes its physical characteristics simply as a result of time elapsing. The rule also would impose a continuing obligation "to monitor and reassess" the material's hazardous waste status if "changes occur that may cause the waste to become hazardous." 57,938/2. As an example the agency points to a waste consisting of solvents mixed with water that separates and becomes biphasic over time. EPA states that in this case, the generator must make 2 hazardous waste determinations at the point of generation and after the waste separates into phases. 57,938/3. Also, if there is reason to know that the waste will behave in such a manner that it will exhibit toxicity, the generator must so advise the disposer of the materials (referring to nonhazardous wastewaters managed in surface impoundments. Id. at 57,939/col. 1.

FPA is generally supportive of these clarifications of the generator rules, but notes that the latter provision is inconsistent for F-listed waste which is characterized at use, not at the point of generation. Therefore FPA requests clarification that the agency does not intend to change the point at which F-listed wastes are characterized. (0240)
Response: The F-listed solvents each have a listing description that is used to determine if a spent solvent is a listed hazardous waste solvent. The Agency is not changing these listing descriptions nor is it changing the point of generation at which a spent solvent is determined to be a hazardous waste. However, we are clarifying that situations may exist where the properties of the waste may change as a result of exposure to the environment or because the properties of the chemical may change, and generators need to be aware of these situations, such as with the example cited regarding biphasic solvents.
Comment: b. FPA also is generally supportive of the NPRM's discussion of how to determine if a solid waste is a listed hazardous waste, but suggests that additional explication is necessary with regard to "U" and "P"-listed hazardous wastes.

EPA states that in many cases, identifying the origin of the waste is sufficient to determine whether it is a listed waste, but sometimes additional information about production feedstocks is needed for a "reliable determination." The proposed rule therefore says that except for characteristic wastes, it may be necessary to consult the hazardous waste listing documentation and TSDs as well as specific waste stream issues, and this research should be included in the determination. For instance in order to characterize a F001-005 solvent waste stream "accurately," knowledge of the composition of the unused solvent is needed and must be quantified to determine if the total of all the solvent constituents before use is greater than or equal to ten percent of the generated material's volume. See 57,939/col. 3. The reader is reminded about the derived from and mixture rules, except when the waste is listed because it exhibits a hazardous waste characteristic which the mixture no longer exhibits.

FPA is in general agreement with the preamble's discussion of listed waste characterizations. However with respect to the discussion in the Notice at page 57,943 on the difference between by-products and co-products, we feel that the discussion is incomplete or misleading. EPA should clarify that "U" and "P" characterizations are done differently than described therein because one must first look to see if the mixture, not the constituent, is listed. On a topic related to these characterizations, FPA also suggests strongly that the final rule also should define "commercial general product;" because our members think it is insufficient to define this term only in the rule's preamble, which will be increasingly difficult over time to access. (0240)
Response: The Agency is uncertain about the meaning of the above comments. However, based on our interpretation of the above comments, we respond as follows. First, the definition of commercial chemical products (CCPs) is found at the end of paragraph 40 CFR 261.33 (d) in a Comment as: The phrase "commercial chemical product or manufacturing chemical intermediate having the generic name listed in .   .   ." refers to a chemical substance which is manufactured or formulated for commercial or manufacturing use which consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient. It does not refer to a material, such as a manufacturing process waste, that contains any of the substances listed in paragraph (e) or (f). Where a manufacturing process waste is deemed to be a hazardous waste because it contains a substance listed in paragraph (e) or (f), such waste will be listed in either §261.31 or §261.32 or will be identified as a hazardous waste by the characteristics set forth in subpart C of this part.] 
Second, while the criteria for listing P and U-listed wastes are different, we do not understand the statement, "one must first look to see if the mixture, not the constituent, is listed" since the mixture of a listed waste with a solid waste or another listed waste always derives a listed waste. 
Third, there is no such term as "commercial general product" unless the commenter is recommending that we define such term. 
Comment: Clean Harbors generally agrees with that these proposed revisions will allow for safer management of hazardous waste, provide hazardous waste generators with greater clarity as to what their responsibilities are under § 262.11, and lessen the difficulties generators have historically had when attempting to make an accurate hazardous waste determination. We are concerned, however, that while there is a lot of discussion in the preamble regarding hazardous waste determination and documentation of `non-hazardous' determination, there is little of substance in the proposed regulations to stipulate type and/or quantity of the documentation that is needed. As written it is akin to proving of the `negative issue.' There is much discussion on what makes something a hazardous waste, but not the contrary. Further, there is an enforcement provision if the generator `fails to meet is applicable independent requirements under part 262.11, Hazardous waste determinations and recordkeeping.' We strongly recommend that EPA develop implementing guidance for generators, especially very small and small quantity generators that would assist them in complying with the waste determination and recordkeeping requirements. We suggest EPA develop a one page checklist for the generator to complete and that EPA accept this as appropriate documentation. (0243)

Response: The Agency will take the advice and recommendations of Clean Harbors under consideration. 
Comment: Proposed Change: Clarifies documentation for Hazardous Waste Determination- Use of generator knowledge, how generator evaluates hazwaste characteristics etc. Section VIII.B.1-3.,pages 57935-57939
EMD Position: Support
Comment/Notes: Strongly support clarifying the documentation required for evaluating hazardous waste characteristics, whether outcome of determination is hazardous or non-hazardous. (0250)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: NADA supports EPA's efforts aimed at providing enhanced clarity regarding the waste determination requirements. These efforts should assist small business and smaller generators in particular. Areas that could benefit from additional clarity is when (and by what actions, if any) articles, parts, or items of inventory become "wastes," and when (and by what actions, if any) they may be "hazardous" for purposes of potential treatment, disposal or recycling. In part, such clarifications involve "point of generation" issues. Perhaps EPA should develop an appendix or guidance document in this regard. NADA also supports the development of a more comprehensive waste determination electronic tool. (0253)
Response: The Agency will take the advice and recommendations of NADA under consideration. 
Comment: MU does not support the addition of new language to this section. In complex organizations such as colleges and universities, materials not wanted by one location but accumulated at said location may actually be an acceptable starting material elsewhere in the organization. The generator of that unwanted material is unlikely to know if utilization of that material elsewhere in the organization is possible, complicating whether to accumulate the material as hazardous waste or unwanted material. This concept is not unique to laboratories at complex organizations, although that is likely the most common application. The proposed addition that the hazardous waste determination be made at or near the point of generation (as well as the mandatory use of "Hazardous Waste" instead of allowing only "other words that identify the contents of the containers" as noted in MU's response to "Strengthening the Marking and Labeling Provisions for Containers in SAAs") may force organizations to choose to not identify locations producing such potentially reusable material as Satellite Accumulation Areas and thus removing those areas from the requirement to comply with RCRA.

EPA has already recognized this complexity under Subpart K where they allow experts such as Environmental Health and Safety staff to make a hazardous waste determination at another point in time, including at a location not "at or near the point of generation" as classically defined. This scenario is not limited to those entities eligible for Subpart K. Attempting to communicate clearly to each generating location (which can number in the thousands at a university) whether or not a material is suitable for reuse would be a tremendous never-ending burden and poor use of the staff that can make that assessment.

For those that have opted into Subpart K, implementation of a mandatory hazardous waste determination at or near the point of generation will exasperate the already complex training that exists for employees that work in locations both meeting and not meeting the definition of laboratory under Subpart K due to the dual management system. This conundrum could be avoided if Subpart K applied to all locations at a generator ID number. See "Additional Remarks Regarding Subpart K" near the end of this document for a more thorough discussion of this concern. (0256)
Response: Subpart K is applicable only to wastes generated in a laboratory setting. Expanding Subpart K to include the entire facility is beyond the scope of this rule. 
Comment: ACA has significant concerns with EPA's proposed changes to the waste determination regulations under RCRA. While EPA asserts it is proposing these changes in order to have more information on when a waste determination must be made, ACA maintains that the changes will result in significant increased compliance costs, unnecessary recordkeeping burdens, and leave generators more vulnerable to enforcement actions without any improved benefit to health or the environment.

The proposed requirement that hazardous waste determinations must be made at any time in the course of its management and if it has changed its properties increase the burden associated with RCRA, since it is unclear how often waste determinations need to be made, and could result in multiple waste determinations. In addition, EPA has proposed that generators "should notify any subsequent handlers of the waste, so that they are aware that they should also monitor the waste for changes," including changes that result from subsequent waste treatment (for example wastewater treatment). ACA believes that the proposed requirement to inform subsequent handlers of waste is overreaching since generators may not have knowledge of the final treatment of the waste, nor how the waste will change as the result of this treatment. ACA suggests that this proposed requirement further increases potential enforcement liability to the generator, for changes in the waste that result from downstream treatment of the waste. (0262)
Response: The Agency disagrees with the above comments. RCRA solid and hazardous waste must be reevaluated at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste, such that the RCRA classification may have changed. As discussed in the proposal rule at 80 FR 57938, and in referring to characteristic hazardous wastes, the Agency stated:
      This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous
      .
Many commenters were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations. (See for example, discussion at 80 FR 57939 and 55 FR 39410, September 27, 1990) In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties. The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination.

Comment:  Upon review of the docket named above, we are concerned that the proposed rule changes to 40 CFR Part 262.11. The requirements will place additional ongoing functional and financial burdens on laboratories in many sectors. Also, the requirements will place additional ongoing functional and financial burdens on colleges and universities, hospitals, and other generators. We do not believe that a balancing of these burdens has been given due consideration in the EPA reasoning for imposing these new requirements.(0284)
Response: The Agency does not agree with the above comments. The Agency believes waste determinations are best performed by a specialized, dedicated group of professionals, but must still be made at the point of generation. If the  final identification of RCRA waste codes must wait until  the waste is removed from the laboratory or in the central accumulation area, then workers, researchers, etc. should be sufficiently trained to make an accurate waste determination at the point of generation (i.e., know if they have generated a hazardous waste), manage the waste safely, and also start the process of further identifying the RCRA waste codes to meet land disposal restriction requirements once sent off-site or on-site for subsequent waste management. The Agency believes colleges and universities should already be training their students about the hazards of the chemicals they are dealing with before they enter the laboratory environment. 
Comment: Currently, it is common practice in both industrial and academic settings for waste to be generated in satellite accumulation areas, labeled as "Hazardous Waste" along with an accurate description of the waste (e.g., "Methylene Chloride Waste"), and later managed by trained hazardous waste professionals (e.g., skilled internal EHS staff, trained external waste contractors) who routinely conduct waste determinations. This type of waste management does not require all staff involved with the collection of hazardous waste (e.g., researcher in a laboratory setting, floor worker in a manufacturing setting) to be trained on the technical details of waste determination and EPA waste code application; they are simply trained to collect and manage chemical wastes according to their organization's internal waste management program. (0284)

Response: The Agency does not see a problem with this process. However, the generator must also start the process at the point of generation of identifying the RCRA waste codes to meet land disposal restriction requirements prior to sending the waste off-site or on-site for subsequent waste management. Only when their containers are being sent for subsequent management off-site must a generator label their containers with the applicable RCRA waste codes per 40 CFR 262.32.

Section 4.2.1 - Existing regulations/need for revisions


Comment: Instead, I would propose that 262.11 be changed so that it clearly allows a reasonable time frame for a proper and accurate hazardous waste determinations by individuals with knowledge of the wastes and regulatory requirements. Such clarification is necessary to avoid the absurd interpretation actually offered by a compliance officer: that every waste must be characterized the instant the first drop goes into the waste container, before a sample could even be collected to test! (0063)
Response: The Agency continues to emphasize that a hazardous waste determination must be made at the point of generation. We have in the past and continue to recognize that situations will occur where a generator is not able to make an accurate waste determination at the point of generation based on knowledge alone, and the generator will need to send a sample of the waste to be tested. When this is the case, the sample sent for testing must be collected at, and represent the waste as it exists at the point of generation. Also, as the EPA has stated in the past, the generator must manage the waste as hazardous waste until the results of the test are received, and continue to manage it as hazardous waste if the hazardous waste determination is confirmed by the test.
The Agency also emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and so requires a new hazardous waste determination. Changes in waste may occur because of exposure to the environment, spontaneous changes in the waste or from other causes. Further, manufacturing process changes, or changes in feedstock chemicals used, or seasonal or other changes in manufacturing may also results in changes to waste and so warrant a new evaluation of the waste under RCRA.
The Agency does not expect that every waste must be characterized the instant the first drop goes into the waste container, however, we do expect generators to initiate the process of making an accurate hazardous waste determination once the waste is initially generated. 
Comment: The intent of the proposed rule appears to be two-fold: ensure the contents are listed to aid in waste determination and provide information that could be useful to emergency responders. Subpart K, section 262.206(a)(I)(ii) provides a method to achieve these goals in a manner much less burdensome and much more likely to be accurate by allowing generators to label the containers with "sufficient information to alert emergency responders to the hazards or the contents of the container." We urge EPA to consider this option rather than the proposed requirement. (0135)
Response: A generator is responsible for determining if it has generated a hazardous waste at the point of generation. At that time, the generator should at least determine if the waste is hazardous and if so, why the waste is hazardous by placing a label on the container identifying the hazards (i.e., ignitable, toxic, etc). Identifying the RCRA waste codes at the point of generation is not necessary but the generator should initiate the process at that time so that it can ensure the waste will be managed safely on-site and off-site. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment. 

Comment: The proposed process does not enhance environmental health and safety; the current regulation already requires that any person who generates a solid waste must determine whether that waste is a hazardous waste and prescribes the methodology for doing so.
Response: The Agency disagrees with the above comments and believes the clarifications to the rules will foster more accurate waste determinations than under the current regulations.

Comment: The requirement also raises a number of uncertainties for transporters, transfer facilities and TSDFs. For example, transporters do not open containers to sample and test the contents; they rely on the manifests, shipping papers, material safety data sheets, and container labels. Most transfer facilities are not permitted to open containers and sample the contents. A TSDF will sample and test incoming waste in accordance with its Waste Acceptance Plan and permit. At this point, a TSDF would identify changes in waste characteristics (e.g., ignitability, corrosivity). If a discrepancy is identified, a TSDF would communicate with the generator to make appropriate corrections to the waste information (waste profile) and shipping papers. A Subtitle D landfill receiving a non-hazardous industrial waste would not be likely to perform such an assessment on the waste that it receives. Once a waste is received at a TSDF, it usually may be stored for up to one year before performing treatment and disposal. The new proposal is not clear about whether a TSDF would be obligated to resample a stored waste prior to treatment and disposal. EPA has also not indicated whether the new requirement will impose changes in the TSDF's Waste Analysis Plan. 
This requirement could also be troubling for solid waste haulers, recyclers, and landfills if they have some sort of an ongoing obligation to re-characterize a solid waste because the waste "may have changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." Once solid waste enters the non-hazardous solid waste stream, it is managed as non-hazardous solid waste and typically commingled with other solid wastes. It will be virtually impossible  -  and certainly extremely costly and burdensome  -  if a solid waste hauler or landfill operator must re-sample, test, and characterize a solid waste based on the possibility that its properties have changed.

Waste Management recommends that the phrase, " and at any time in the course of its management that it has or may have changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." be deleted from the proposed language at 262.11(a). The proposed language is too all encompassing, and will be difficult if not impossible to implement and enforce. (0159)
Response: The Agency disagrees with the commenter's proposed recommendation. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations. (See for example, discussion at 80 FR 57939 and 55 FR 39410, September 27, 1990) In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties. The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination. 
Comment: We would argue that it is difficult to draw sweeping conclusions from data which vary significantly, nor does that data actually reveal specific environmental damage that resulted. In any event, demonstrating that there is a problem with non-compliance with existing hazardous waste determinations at some level is not necessarily justification for creating new regulations. In the case of waste identification, it is a call for more rigorous enforcement of the existing regulations. (0192)
Response: The Agency agrees that the non-compliance data collected and analyzed does not reveal whether specific environmental damage occurred, but it does reveal that the potential for environmental damages is possible considering the generator is mismanaging a hazardous waste. Although "more rigorous enforcement" could help having better, clearer regulations in the first place would be a better approach in order to promote better compliance. 
Comment: .....the current language in 40 CFR 262.11 with the reference to Part 268 needs clarification, because the applicability of the treatment standards for underlying hazardous constituents is widely misunderstood. The 40 CFR 268.7 notification and certification provisions should be moved to this section for generators that send waste off site and for those that treat waste on site in permit exempt units. (0214)
Response: The Agency believes making generators aware that they must comply with Part 268 regulations in this section is sufficient. Specific regulations, guidance and other materials exist to inform generators and to make them aware of when and how they must address underlying hazardous constituents for characteristically hazardous wastes.
Comment: Stating that the generator's responsibility begins with applying "due diligence" in hazardous waste determinations is a significant issue. Most SQGs and many LQGs rely on their disposal facilities or third party waste brokers to fill out waste profiles. Each party points fingers at the other when waste profiling issues are found. "Don't ask/don't tell" is often the rule when generators and disposal companies deal with each other, especially through waste brokers. (0214)
Response: The Agency is also aware of such situations but RCRA rules are very clear: generators are responsible for making a hazardous waste determination.
Comment: USDOT has clear rules for all persons, including brokers that perform HazMat functions on behalf of a shipper. USEPA should similarly clarify the applicability of the generator rules, due diligence and liability under RCRA for waste brokers and TSDF sales staff. (0214)
Response: Under RCRA, the regulations are also clear. Generators are responsible for making an accurate hazardous waste determination and managing its hazardous waste in compliance with all applicable RCRA regulations.Waste brokers are unique organizations since they often do not "take possession" of the waste as much as find an entity that may be able to use it and send transporters to take the waste and deliver it to the receiving facility. If they do take possession, they also become handlers of a hazardous waste and must manage the hazardous waste according to all applicable regulations. TSDF sales staff should have a detailed understanding of the RCRA regulations since they are responsible for managing the hazardous waste it receives from its customers. 
Comment: The MPCA strongly supports the proposed clarification of a generator's obligation to evaluate the waste it generates, however based on its experience the MPCA recommends two additional revisions to the proposed text: first, an explicit statement that solid waste that is not evaluated prior to subsequent management (including shipment off-site, mixture with other wastes, or treatment) is assumed to be hazardous waste and must be managed accordingly; and second, a time limit for performance of the waste evaluation. The MPCA believes both of these elements are necessary not only to make the generator's expectations as clear as possible, but also to avoid deliberate or inadvertent misapplication that may result in unidentified hazardous wastes being mismanaged. (0232)

Without a mandated timeframe to evaluate generated wastes, the MPCA has observed that some generators may deliberately or inadvertently accumulate the wastes for lengthy periods (e.g. months to years) without fully identifying them or determining their environmental risks (i.e. evaluating them). As a result, the waste may often not be safely contained, labeled, or appropriate steps taken to arrange for its proper disposal. Without a clear, explicit mandatory assumption that unevaluated waste must be assumed to be hazardous, generators may and have misunderstood the entire basis of the hazardous waste regulations and taken the stance that, unless and until they evaluate a waste as hazardous, they may accumulate and subsequently manage it by treatment or disposal as non-hazardous waste. The all-too-easy mindset is that hazardous wastes are `opt-in', and unless and until someone tells them their specific wastes are hazardous and unregulated, they may assume they are not. In contrast, the MPCA understands the entire basis of the federal hazardous waste regulations, and interprets the basis of Minnesota's parallel hazardous waste rules, as an `opt-out' universe, where generators must manage all their wastes that might reasonably meet the hazardous waste definitions as hazardous, and thus regulated, until they show that they are not.

To address these significant observed issues and forestall recurrences of observed mismanagement, Minnesota amended its regulations in 1993 [18 SR 1565] to include both of these clear, explicit elements [Minn. R. 7045.0214]. The MPCA has observed, that, particularly for smaller or less-sophisticated generators, the clearest statement of their responsibilities possible in regulation, thus able to be cited by regulators and directly looked up by generators themselves, has reduced generator confusion and increased evaluation compliance.

In addition, the MPCA points out that, by inclusion of an explicit hazardous waste assumption requirement in the absence of evaluation prior to subsequent management, the equally inherent allowance in the hazardous waste regulatory program that generators may voluntarily forego evaluation if they assume their waste is hazardous and manage it fully as such, as affirmed by EPA itself at 80 FR 57945, is made much clearer. (0232)
Response: The Agency appreciates the above comments but believes by stating a hazardous waste determination must be made at the point of generation responds to their concerns. In other words, the clock starts then. As we have stated before, generators may also manage non-hazardous wastes as hazardous if they so choose and it will not affect their compliance. 
Comment: B. Waste Determinations (40 CFR 262.11)
Pages 57935-38:
1. Background
2. Improvements to the Existing Hazardous Waste Determination Regulations

DC supports the clarification this change will provide. (0248)
Response: The Agency appreciates this comment.


Comment: COMMENT 'D' (related to p 57937 discussion of reasons why waste determination violations were the most prevalent):
In the p 57937 discussion EPA did not address what is very arguably the most important reason for the high percentage of RCRA violations being waste determination types. RCRA inspectors encountering a waste that is not being managed in accordance with the 90-day or 180-day storage regulations have two basic choices of what violations to cite the generator for: (1) the full set of TSD violations, or (2) failure to determine if the waste is hazardous. Since with choice #1 the full set of TSD violations would need to be withdrawn if the waste is later found to be non- hazardous, pragmatically the first step taken for both 1 and 2 is to determine if the waste is hazardous. Hence, typically the generator is initially cited only for a waste determination violation, [FOOTNOTE 22 ATTACHES HERE] with the recognition that subsequent violations will be added if in fact the waste is found to be hazardous. (Sometimes, however, the reality is that the severity of the full set of TSD violations -- coupled with the likely need for the site to obtain a TSD permit before continuing -- results in the site never being fully cited for all RCRA violations to prevent their bankruptcy and site abandonment. [FOOTNOTE 23 ATTACHES HERE])
When the violations for such sites are tabulated, their frequency distribution could be very misleading and lead to erroneous conclusions of the most prevalent reasons generators are out of compliance.)
----------------
FOOTNOTE 22: An added benefit of Choice #1 is that the testing burden is shifted away from the inspector -- whom often has access to limited sampling and analytical resources - and onto the generator of the waste in question.
FOOTNOTE 23: This may take place in spite of the p 57922 discussion addressing the consequences of not meeting the conditions of the generator exemptions ("...the generator either fails to obtain - or loses - the exemption from the RCRA permitting requirements...") However, EPA appears to have softened that position on p 57942: "...the generator COULD then be cited in an enforcement action not only for that [waste determination] violation but also for...operating without a RCRA permit." (0268)
Response: The commenter raises good points. EPA and state inspectors have discretion in how they cite a facility for failing to make an accurate hazardous waste determination, or any other RCRA violation as well. The statistics cited were for 40 CFR 262.11 violations. To the extent that a 40 CFR 262.34 violation was cited, it may or may not include a 40 CFR 262.11 violation.

Section 4.2.2 - Determinations at point of generation

Comment: The proposed rule that would require hazardous waste determinations be made at the point of generation would create significant problems for both compliance and environmental protection. This proposal risks forfeiting accuracy for speed. That is a trade off with questionable benefits and very real potential detriments. Therefore, this change should not be made. 
The proposed requirement may be reasonable for some generators producing large quantities of fairly homogeneous constant waste streams in centralized operations (e.g. production facilities). In such a situation, a determination can likely be made by a qualified person either at the point of generation or even prior to generation. 

There are many generators, especially academic and research laboratories that produce relatively small volume, highly diverse, ever-changing, and unpredictable waste streams. Containers are often just a few hundred grams and, at most, four liters. The wastes are produced by a relatively large number of individuals across decentralized operations and are frequently stored for a period of time at the point of generation (in satellite accumulation areas). Those generating hazardous wastes in laboratories include everyone from professors to technicians to undergraduate students. While these individuals are aware of the associated hazards, that knowledge does not qualify them to make hazardous waste determinations. 

It is common for academic and research laboratories to have wastes characterized by a qualified person at some point after the wastes are produced. Often this occurs upon transfer to central accumulation areas. It could be argued that individual generators (professors, technicians, and research students) could be trained to make hazardous waste determinations. However, that approach carries two significant problems. First, the training would be burdensome if not almost impossible to achieve, especially for an ever changing student body. Second, it would tend to shift the determination process away from those professionals dedicated to such tasks to individuals less dedicated and prepared. Even if all professors, technicians, and students could be properly trained, hazardous waste determinations would represent a chore that distracts them from their primary focus of research, teaching, etc. Those individuals, even if motivated and well intentioned, are unlikely to put forth the same effort and skill as individuals for whom hazardous waste handling is a primary job task. For these reasons, the proposed rule change regarding "When and Where To Make a Hazardous Waste Determination" is a change that would reduce personal safety, environmental safety, and compliance, rather than enhance it. (0063)
Response: The Agency's policy and position from the beginning of the RCRA program has been that a waste determination must be made at the point of generation (i.e., the point at which the material first becomes a solid waste under RCRA. See, for example, 55 FR 11830, March 29, 1990). This includes both the time and place the waste is first generated. By requiring that the hazardous waste determination be made at the point of generation in § 262.11(a), the final regulation clarifies that the determination cannot be made downstream in the process, where other materials could be mixed with the waste or where the waste may have changed its physical or chemical characteristics. A generator's hazardous waste determination at the initial point of generation is critical to ensure proper management of the waste not only by the generator, but also by transporters and TSDFs who rely on the generator's determination to allow them to safely manage the waste and provide appropriate treatment and disposal. This proposed revision to § 262.11 is not a substantive change to the program; preambles to a number of previous rules explain that EPA has always maintained that hazardous waste determinations must be made at the initial point of generation. (See 45 FR33095-96, May 19, 1980 and 55 FR 11830, March 29, 1990)
The Agency is also aware that many generators, such as academic and industrial laboratories, generate new or different waste streams frequently, and that making hazardous waste determinations for multiple waste streams is more difficult than when a generator has a small number of waste streams that seldom vary. However, EPA stresses that in the laboratory setting, it may be even more important to make accurate hazardous waste determinations at the point of generation, so that emergency scenarios involving mixing of incompatible wastes or other dangerous situations can be avoided and lab worker safety maintained. Whether a generator generates one new waste daily or annually, the process for making a hazardous waste determination is still the same. Through knowledge of the process or materials, and/or through testing, all generators must make a hazardous waste determination at the point of generation. The Agency would expect generators producing new wastes frequently to establish efficient processes to make those waste determinations, particularly to the extent they can use knowledge of the materials or feedstocks in the waste determination process.
The Agency realizes that the educational and industrial laboratory sectors raised concerns about the undue waste determination burden from the large numbers of potentially hazardous wastes that might be generated at their sites. EPA realizes that these sectors operate differently from the traditional industrial hazardous waste generators. In fact, to address laboratory sector concerns, EPA developed an optional set of alternative standards in 40 CFR part 262 subpart K, entitled, "Alternative Requirements for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Owned by Eligible Academic Entities." This rule was designed to account for the manner in which academic laboratories operate. In addition, a few years ago, the EPA began a review of how RCRA hazardous waste regulations apply to the retail sector in order to better understand retailers' challenges in complying with RCRA regulation. These efforts are on-going.
From a practical viewpoint, those involved in conducting experiments in a laboratory setting will need to make a hazardous waste determination when they have a generated a waste they know will be disposed. The question that needs to be answered is whether the waste is hazardous or not, and why; i.e., what hazard is exhibited that makes the waste a hazardous waste, such as ignitable, toxic, corrosive and reactive. Once they know the hazard they can place a label in an appropriate place where the waste will be stored until it is picked up and moved to a central accumulation area. The Agency believes technical staff can help those working in a lab to determine whether their experiments will produce a hazardous waste and determine why the waste is hazardous. The Agency also believes students, researchers, etc. are already being trained in this determination because they have to be aware of the potential hazards they are dealing with. (In fact this commenter said so; i.e., "While these individuals are aware of the associated hazards, that knowledge does not qualify them to make hazardous waste determinations."
The problem appears to be whether the researcher will need to identify the RCRA waste codes. The process for identifying RCRA waste codes begins at the point of generation, but the actual marking of these codes on a container must occur prior to the wastes being sent off-site to a RCRA permitted TSDF, or prior to being treated and disposed of on-site. In other words, sufficient time will exist for the technical experts in the laboratory to identify the RCRA waste codes to complete the waste determination process. The Agency believes this process should alleviate this issue in a laboratory setting. 
Comment: §262.11(a) revised wording may result in compliance issues. The statement "A hazardous waste determination ... must be made at the point of waste generation" invites the implication that such determination must be made instantaneously, i.e. at the point and time of generation. EPA's discussion of this change does not dispel this implication. While management of waste as hazardous at the point and time of generation is indisputably required, EPA has previously acknowledged that hazardous waste determinations are frequently performed by trained hazardous waste personnel, not necessarily by the individual employee who is present when the waste is generated [Footnote 2: See, e.g., EPA memorandum, Cotsworth to RCRA Senior Policy Advisors, EPA Regions I-X, "Hazardous Waste Generated in Laboratories", 8/16/2002, RCRA Online 14618. [http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/E56A8C54ABEEE32885256C6700700EE1/$file/14618.pdf]]. This requirement also is unclear in situations where continuous generation takes place, e.g. air pollution devices or wastes from continuous analyzers. Waste determination is somewhat detailed, and §261.11 requires that generators (persons) perform an "accurate" determination. As noted by EPA in the preamble, subsequent compliant management relies on this determination, so the need for qualified staff to perform and/or over-check hazardous waste determinations is critical. Further, in some cases, analysis may be required in order to make an "accurate" waste determination. Clearly, unnecessary delay in determinations should be avoided. However, the implication that waste determinations are required instantaneously upon generation should be avoided in order to allow qualified staff to participate in the waste determination process and so that any necessary analytical work may be performed as well as industrial settings as well. 
Response: The response to commenter 0063 at the beginning of this section also addresses the concerns and comments of this commenter as well. 
Comment: The proposed requirement for a hazardous waste determination to be made at the point of waste generation before any dilution, mixing, or other alteration would create undue hardship on higher education institutions, particularly in research and teaching laboratories. Laboratories, art studios, maker spaces and other research and teaching operations generate constantly changing waste streams at infrequent or erratic intervals. The population of students, faculty and staff is constantly changing.

I know from experience that we can achieve greater safety and compliance when an institution issues guidance to laboratory workers and other generators so they are informed about aspects of chemical waste such as the characteristics, the regulatory listing, safe collection and storage, what can be mixed together safely, and labeling. This is followed up with procedures for final waste determination that is performed by highly trained personnel such as environmental health and safety staff either at the time the waste is removed from the laboratory or in a central accumulation area.

In my experience generators are much more likely to take a cautious approach and collect and offer chemical waste that is not regulated by RCRA than to dispose of the waste in a manner that poses a risk to human health or the environment (e.g., via the sanitary sewer or municipal solid waste). Thus, the proposed changes that clearly state that waste determination must be conducted at the point of generation may make it more likely rather than less likely that a laboratory worker would dispose of a chemical waste improperly, due to the complexity and added burden this change would place on the generator.

This change would clarify the requirement that hazardous waste determinations be made in the laboratory at the process outflow, in the laboratory apparatus effluent, or on the research bench. Multiple determinations may be necessary if the effluent or outflow changes during this process. Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point.

Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. In addition, this would remove the environmental health and safety professional from being involved in the formal determination at a central accumulation area. (0091)
Response: The response to commenter 0063 at the beginning of this section also addresses the concerns and comments of this commenter as well. 
Comment: First, USWAG is concerned that EPA's proposal that a hazardous waste determination be made at the point of waste generation ignores the fact that in many instances, a determination cannot be made until testing is completed on the waste. This process -- which includes gathering information, taking samples, sending samples to a laboratory, and conducting laboratory analysis -- can take weeks. Thus, EPA's proposed requirement that the hazardous waste determination be made at the point of generation is unrealistic, and should be amended to be made at the point the generator determines the waste is actually hazardous. We acknowledge that if a generator does not actually know whether waste is hazardous or not, the generator must assume the waste is hazardous and manage it accordingly. (0093)

Response: The Agency acknowledges the fact that sometimes use of knowledge may not be the appropriate mechanism to make an accurate hazardous waste determination at the point of generation and that a representative sample of the waste must be taken and sent off-site for analysis before a definitive determination can be made. In such cases, the commenter is correct, while the waste is being analyzed, the generator must assume the waste is hazardous and manage it accordingly.

Comment: There are instances where a waste stream's constituents and their concentration are known and constant that a determination at the point of generation is practical. This is not true in other settings, such as a research or even teaching facility: Waste determination at the point of generation would require an additional knowledge set by the site operator and/or inefficient and disruptive use of RCRA specialists".

o Also note that:

::Such a rule would greatly lower the utility of the proposed waste determination tool mentioned in the preamble. (0097)
Response: The response to commenter 0063 at the beginning of this section also addresses the concerns and comments of this commenter as well. 
Comment: 5. DTE Energy has some concerns with the proposals regarding changes to the requirements around hazardous waste determinations. In particular:

a. In most instances in our operations, it is not possible to make a hazardous waste determination at the point of generation. As discussed earlier with the hazardous and radioactive waste scenario, it was originally thought the waste would be nonhazardous. Analytical testing identified the hazardous constituents but that did not happen until the results were obtained a week or so later. The language in the proposal should be changed to recognize that the characterization process needs to occur before a hazardous waste determination can be confirmed by the generator, which is most cases is not when the first drop of waste is collected. DTE Energy would also like some flexibility written into the language here to allow a reprieve to having to label a container under analysis with a waste code. At best, these waste codes are often "best guesses" and do not give the compliance assurance we desire. (0098) 
Response: : The Agency acknowledges the fact that sometimes use of knowledge may not be the appropriate mechanism to make an accurate hazardous waste determination at the point of generation and that a representative sample of the waste must be taken and sent off-site for analysis before a definitive determination can be made. In such cases, the commenter is correct, while the waste is being analyzed, the generator mustassume the waste is hazardous and manage it accordingly. The Agency also believes the response to commenter 0063 at the beginning of this section addresses this commenter's other concerns. 
Comment: Revising 40 CFR 262.11 to state that a waste determination must be made at the point of generation will severely limit waste management options and increase costs for waste generators. It is common knowledge that RCRA regulations are already so complex that making waste determinations requires specialized skills and training. Many LQG facilities have dedicated staff specifically for this task. Requiring a waste determination at the point of generation would require this staff to do their work at many different locations or require a facility to provide all employees with waste determination training. It is often much safer to move waste to a controlled area away from production to complete a waste determination. In addition, this change would defeat the purpose of a satellite accumulation area which already uses more lenient "at or near the point of generation" criteria. (0099)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: Revising 40 CFR 262.11 to state that a waste determination must be made at the point of generation will severely limit waste management options and increase costs for waste generators. It is common knowledge that RCRA regulations are already so complex that making waste determinations requires specialized skills and training. Many LQG facilities have dedicated staff specifically for this task. Requiring a waste determination at the point of generation would require this staff to do their work at many different locations or require a facility to provide all employees with waste determination training. It is often much safer to move waste to a controlled area away from production to complete a waste determination. In addition, this change would defeat the purpose of a satellite accumulation area which already uses more lenient "at or near the point of generation" criteria. (0101)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: Revising 40 CFR 262.11 to state that a waste determination must be made at the point of generation will severely limit waste management options and increase costs for waste generators. It is common knowledge that RCRA regulations are already so complex that making waste determinations requires specialized skills and training. Many LQG facilities have dedicated staff specifically for this task. Requiring a waste determination at the point of generation would require this staff to do their work at many different locations or require a facility to provide all employees with waste determination training. It is often much safer to move waste to a controlled area away from production to complete a waste determination. In addition, this change would defeat the purpose of a satellite accumulation area which already uses more lenient "at or near the point of generation" criteria. (0104)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: Regarding waste determination at the point of generation, EPA must realize that potentially hundreds of researchers who generate small amounts of hazardous waste in their respective Satellite Accumulation Areas (SAA) by and large do not possess the skills required to do so. EPA itself does not require specific RCRA training for SAAs but affords environmental health and safety professionals to assist them in proper compliance. This proposed rule could, among other unnecessary "solutions", require that each single researcher and any assistant to obtain advanced RCRA training, causing huge burdens and distractions from their important work while tying the hands of the professionals charged with doing so themselves. EPA seems to propose a solution to a problem that does not exist at Auburn University. To wit, generators of chemical waste in SAAs need only to identify their wastes with the words "chemical waste" OR "other identifying words", which all researchers do in order for their respective wastes to be collected by EHS staff prior to being transported to a Central Accumulation Area (CAA) for a proper waste determination and subsequent 90-day storage; everyone does their part according to well-established and reasonable RCRA regulations already. In another unforeseen scenario EPA could create is requiring already understaffed EHS personnel to make proper waste determinations at hundreds of different locations, which is a totally unfeasible solution to the nonexistent "problem" posed by EPA. The proposed rule change could also cause an enormous undue burden on everyone involved by preventing any chemical waste from being removed from the SAA until a proper waste determination is made in the lab. It is highly probable that hazardous wastes will be illegally disposed of via sanitary sewers and/or solid waste receptacles, thereby undermining the whole intent of RCRA and rendering the term "SAA" irrelevant. This is an unacceptable and potentially dangerous proposal on the part of EPA authors who have obviously never been part of a University EHS system. (0105)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: The proposed requirement for a hazardous waste determination to be made at the point of waste generation before any dilution, mixing, or other alteration would create undue hardship on higher education sector institutions, particularly in research and teaching laboratories. Laboratories, art studios, maker spaces, and other research and teaching operations generate constantly changing waste streams at infrequent or erratic intervals. The population of students, faculty, and staff is constantly changing.
Our experience is that generators are much more likely to take a cautious approach and collect and offer chemical waste that is not regulated by RCRA than to dispose of the waste in a manner that poses a risk to human health or the environment (e.g., via the sanitary sewer or municipal solid waste).Thus, the proposed changes that clearly state that waste determination must be conducted at the point of generation may make it more likely rather than less likely that a laboratory worker would dispose of a chemical waste improperly, due to the complexity and added burden this change would place on the generator.

This change would clarify the requirement that hazardous waste determinations be made in the laboratory at the process outflow, in the laboratory apparatus effluent, or on the research bench. Multiple determinations may be necessary if the effluent or outflow changes during this process. Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point.

Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. In addition, this would remove the environmental health and safety professional from involvement in the formal determination at a central accumulation area. (0110) 

Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: Currently we have a staff of only three full time EHS professionals who are barely keeping up with required tasks as it is. The proposed changes are not possible with our current staff, and attempting to train principal investigators and others to properly characterize waste at the time of generation, not to mention adding another hazard classification system, is just not feasible in our situation...and likely any university setting. Even if you could train principal investigators, who have at least a science background, there are numerous other groups on campus who generate waste who do not have a similar background (art studios, trades shops, theater scene shops, etc.). That said, I am fully confident that all of our wastes are being properly managed at TWU under the current regulations. (0111)

Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: EPA proposes to add a new rule at 40 CFR §262.11(a) whereby a "hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has or may have changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste" (emphasis added).
GP does not question the fundamental RCRA requirement that a hazardous waste determination should be made at the point of generation of a solid waste. The italicized language EPA has proposed  -  - "before any dilution, mixing or other alteration of the waste occurs," however, will create confusion and should be deleted.

The problem with the proposed language is that it is too prescriptive, i.e., it categorically says that the point of generation and point of waste determination are always before any dilution, mixing or other change to the waste. The point of generation and point of waste determination are difficult and nuanced concepts. EPA would benefit by not trying to codify these concepts in an overly generalized rule that loses or confuses the nuance EPA has provided in its many interpretations.

Thus, we suggest that either EPA delete this proposed rule at 40 CFR §261.10(a), or limit it to say, "a hazardous waste determination for each solid waste must be made at the point of waste generation, and at any time during its management that it has or may have changed its properties because of exposure and the environment and other factors may change the properties of the waste." This language will alert generators to their obligation to make waste determinations at the point of generation, yet not interfere with the many point of generation interpretations and point of waste determinations that EPA has issued over the years.(0113)


Response: The Agency disagrees with the above commenter's concerns and its proposed recommendation. The Agency discussed this issue back in 1980 (45 FR 33095-96, May 19, 1980) where the Agency identified the point at which the material is first identified as a solid waste under RCRA, before any dilution, mixing, or other alteration of the waste occurs. Further, we have stated that RCRA solid and hazardous waste must be reevaluated at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste, such that the RCRA classification may have changed. As discussed in the proposal rule at 80 FR 57938, and in referring to characteristic hazardous wastes, the Agency stated:

This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.
Many commenters, like this commenter, were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. 
Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations.In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties. The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination.
Finally, EPA has been consistent in its position that a waste determination must be made at the point of generation, unless for some unforeseen and rare circumstance, the determination must be made in a subsequent location. Without clarifying in the regulation that a waste determination must be made at the point of generation, the RCRA "cradle to grave" system could be easily circumvented, with generators and handlers able to delay the waste determination process until a convenient time and place, including by a subsequent handler who knows little about the waste. 
Comment: In many instances, the determination cannot be made until testing is performed on the waste. In the site remediation scenario, contaminated materials are often stockpiled prior to testing and this process which includes collecting samples, sending samples to a laboratory, and performing the laboratory analyses can take several weeks. Until the results of the laboratory analyses are received and reviewed, a hazardous waste determination cannot be made.

CIANJ suggests that this requirement be amended such that the determination is made at the time at which the generator determines the waste is actually hazardous rather than at the point of waste generation. (0120)
Response: The Agency recognizes that situations will occur where a generator is not able to make an accurate waste determination based on knowledge alone, and the generator will need to send a representative sample of the waste to be tested. However, as the EPA has stated in the past, the generator must manage the waste as hazardous waste until the results of the test are received, and continue to manage it as hazardous waste if the hazardous waste determination is confirmed by the test.

Comment: As noted above, LQGs and SQGs must determine whether a waste is hazardous or non-hazardous when it is first generated. In addition, however, the proposed rule would require hazard determinations to be made "at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." 

While the proposal may result in a generator having to perform multiple assessments of a waste, we support regulatory requirements that are designed to ensure that waste is properly characterized, managed and disposed. (0126)
Response: The Agency appreciates the above comments.
Comment: A hazardous waste determination for each solid waste must be made at the point of waste generation before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste.

At one facility Eastman has more than a thousand individual wastewater streams discharging to an interceptor sewer collection system that delivers the wastewater to an aboveground industrial wastewater treatment facility (IWWTF) that discharges treated wastewater in accordance with an NPDES permit. State regulations allow that the wastewater be characterized and the total quantified at the "headworks" to the IWWTF. In fact, there is generally no flow information available at the influent of each discrete wastewater stream to the system. 

Specifically, Tennessee Rule 0400-12-01-.03(5)(a)3 states the following:

A generator must keep records as necessary to demonstrate compliance with subparagraph (1)(b) of this rule - to include any test results, waste analyses, or other determinations made in accordance with that subparagraph - for at least 3 years from the date that the waste was last sent to on-site or off-site hazardous or nonhazardous waste treatment, storage, or disposal facilities. Such record must document the basis for the hazardous waste determination, including those determinations based on the generators knowledge of materials and processes utilized rather than on laboratory analyses. Pursuant to Rule 0400-12-01-.03(2)(a)2, this requirement does not apply to individual wastewater streams in cases where the hazardous waste determination is made on the conglomerate waste stream. (emphasis added)

Eastman believes that EPA's efforts to clarify such nuanced terms as `point of waste determination' and `point of generation' will only serve to create confusion or put various other regulations in conflict with this new rule as drafted and will serve no beneficial purpose. Although Eastman understands the intent to clarify, Eastman asks for relief particularly with regard to multiple wastewater streams and proposes that the words "before any dilution, mixing, or other alteration of the waste occurs" be removed such that the proposed rule at 262.11(a) read as follows:

A hazardous waste determination for each solid waste must be made at the point of waste generation and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste. (0128)
Response: The response to Commenter 0113 addresses this commenter's comments as well. 
Comment: The proposed requirement for a hazardous waste determination to be made at the point of waste generation before any dilution, mixing, or other alteration would create undue hardship on higher education sector institutions, particularly in research and teaching laboratories. Laboratories, art studios, maker spaces, and other research and teaching operations generate constantly changing waste streams at infrequent or erratic intervals.
Our experience is that generators are much more likely to take a cautious approach and collect and offer chemical waste that is not regulated by RCRA than to dispose of the waste in a manner that poses a risk to human health or the environment (e.g., via the sanitary sewer or municipal solid waste). Thus, the proposed changes that clearly state that waste determination must be conducted at the point of generation may make it more likely rather than less likely that a laboratory worker would dispose of a chemical waste improperly, due to the complexity and added burden this change would place on the generator. (0135)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: The proposed revision would create both an excessive burden on educational institutions and would potentially lead to inaccurate classification of wastes. Laboratories, art studios, maker spaces, and other research and teaching operations at institutions of higher learning generate constantly changing waste streams at infrequent or erratic intervals, and suffer from constant turnover in student, faculty and staff population Requiring waste to be classified at the point of generation would require a great deal of additional training be given to a population that is always in flux. 
Thus, the proposed changes that clearly state that waste determination must be conducted at the point of generation may make it more likely that a chemical waste is disposed of improperly, due to the complexity and added burden this change would place on the generator.
Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. In addition, this would remove the environmental health and safety professional from involvement in the formal determination at a central accumulation area. (0136)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: UofL requests the phrase "at the point of waste generation, before dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste" be removed from the proposed revision to 40 CFR 262.11(a).

The current rules already require an accurate waste determination to be made and we believe requiring it to be made specifically at the point of generation will not increase the accuracy of the waste determination process.
UofL believes that performing a waste determination at the point of generation as EPA proposes will require extensive and detailed training of laboratory staff. At a university like Louisville, this could be thousands of individuals in an inherently transient population. In addition, depending on their laboratory duties, many of these staff would perform waste determinations on such an infrequent basis that the number of improper waste determinations could potentially increase under the proposed rule, ultimately leading to improper waste disposal; an outcome that is counter to EPA's stated goal in the rule improvements proposal. We believe the proposed requirement to perform waste determination at the point of generation is not necessary, has the potential to increases the number of improper waste determinations made, and does not provide any additional protection to human health or the environment. (0139)
Response: The response to commenter 0063 at the beginning of this section addresses many of the concerns and comments of this commenter. The Agency also disagrees with the above commenter's concerns about the phrase "at the point of waste generation, before dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste" and its proposed recommendation to remove the phrase from regulatory text. 
The Agency discussed this issue back in 1980 (45 FR 33095-96, May 19, 1980) where the Agency identified the point at which the material is first identified as a solid waste under RCRA, before any dilution, mixing, or other alteration of the waste occurs. Further, we have stated that RCRA solid and hazardous waste must be reevaluated at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste, such that the RCRA classification may have changed. As discussed in the proposal rule at 80 FR 57938, and in referring to characteristic hazardous wastes, the Agency stated:

This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.
Many commenters, like this commenter, were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. 
Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations.In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties. The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination.

Comment: In the Proposed Rule, section 262.11(a) of Title 40 of the Code of Federal Regulations requires a "hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs. Laboratories produce many individual containers of different mixtures of hazardous chemicals in a wide variety of sizes and configurations, from 5 milliliter vials to 5 gallon drums. (0140)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: The proposed requirement for a hazardous waste determination to be made at the point of waste generation would create undue hardship on higher education institutions, particularly in research and teaching laboratories. Laboratories, art studios, and other research and teaching operations generate constantly changing waste streams at varying intervals. The population of students, faculty and staff is constantly changing. This would require EH&S staff to be in each area of generation at a frequency that exceeds current staffing capabilities. The alternative would be to train an ever changing population on proper waste determination instead of the current procedure of allowing EH&S to determine the proper disposal methods. Moving the determination to the point of generation would actually increase the risk for improper labeling and disposal. (0141)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: We are not in support of the change to make the waste determination at the point of generation. Making waste determinations at the point of generation would produce an undue burden at large research organizations in higher education, where research and educational community is highly transient and research changes based on organizational needs. It would incur a heavy administrative burden to train all producers of waste to be able to make the necessary determination. No longer will any firm or institution's safety professionals be responsible for doing this after the waste is collected.
This material is entirely too much technical material for a laboratory whose primary mission is research and academics, not expertise in regulatory language. Additionally, this change would clarify the requirement that hazardous waste determinations be made in the laboratory at the process outflow, in the laboratory apparatus effluent, or on the research bench. Multiple determinations may be necessary if the effluent or outflow changes during this process. Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point.
We believe that the prompt removal of the unwanted material from the point of generation prior to making the hazardous waste determination by trained professionals, hired by the organization to properly do so minimizes the chances that the waste might be mismanaged. Ultimately, we achieve better compliance this way, serve our community in a timely fashion in the safest way possible by moving waste to a secure location upon filling a container.
Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. In addition, this would remove the environmental health and safety professional from involvement in the formal determination at a central accumulation area. (0142)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: EPA should clarify that "point of waste generation" for hazardous waste determinations refers to the location/process within a facility's operations that a waste is generated, not an instantaneous moment in time. (0152)
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: b. Combing of compatible wastes at the point of generation is a common practice but the new process would require waste determination each time something is added to a container.
i. Ex. A lab group consisting of 10 members, each member is conducting their individual research projects generating two liters of a flammable waste. The individual waste containers are then mixed in a 20 liter container prior to moving to CAA. In this example, we would complete, document, and save a total of around 20 different waste determinations for one 20 liter container. That does not then take into account that at the CAA the 20 liter container is then combined into a 55 gallon drum with 10 other 20 liter containers. That is roughly 200 waste determinations for one 55 gallon drum of waste.
3. B3. The training required to have every individual that produces waste, to be able to complete a proper waste determination at the point of generation would be unachievable especially with a 25% turnover of worker every year.
i. To ensure proper protection of human health and the environment it is better for a trained RCRA professional to make the waste determination at the CAA.
1. The individual at the point of generation needs to be trained to identify materials that need to be collected and to provide the necessary information to make a determination. (0154)

Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: Require hazardous waste determinations to be made at the point of generation, rather than allowing EHS professionals to make the determination at a central accumulation area. (0155)
Response: The Agency believes part of the comment is missing. Realizing that the comment is from a college and university association, the response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well.
Comment: Hazardous Waste Determinations

WM agrees with EPA that taking steps to ensure generator compliance with making accurate hazardous waste determinations is very important. The proposed rule reiterates EPA's historic position that generators must make waste determinations at the point of generation. However, EPA expands upon the requirement by proposing that if there is reason to believe a waste has the potential to change physically or chemically during its storage/management and become hazardous, the generator must monitor the waste for those changes and notify subsequent handlers to do so as well. We are concerned that with this proposal the Agency has inadvertently made the rule language more complex and impractical.

We believe this additional requirement creates some uncertainties for all potential handlers with regard to compliance. It is not at all clear what the Agency contemplates for frequency of such monitoring or duration. Nor, does the Agency stipulate or suggest the means a generator should use to communicate such information. We cannot determine whether the Agency would require a generator to manifest a waste that is not currently hazardous, but could become so if not treated and disposed of within a certain period. EPA may want to consider providing clarification that generators should communicate potential waste changes on shipping papers such as bills of lading or non-hazardous manifests. If a generator stores the waste up to 90 days after making its waste determination, EPA should clarify whether the generator is required to make a subsequent determination before shipping the waste offsite, and whether that satisfies the requirement for monitoring by subsequent handlers until the point the waste reaches the TSDF. (0159)
Response: The response to Commenter 0113 addresses the concerns and comments of this commenter as well. 
Comment: Although we agree that the revised requirements will make the waste determination obligations clearer, we are concerned that the proposed modifications will be unnecessarily burdensome, difficult to implement, and, in our view, will not result in more accurate waste determinations.

We agree that the hazardous waste determination needs to be accurate, but- for the great number of constantly changing varieties of wastes generated at universities-it is simply infeasible to train the students and staff present at the point of generation to reliably and accurately make a hazardous waste determination as required by § 262.11(b)-(d), which requires that they determine:

:: If a solid waste is excluded under§ 261.4;

:: If the waste meets any of the listing descriptions under subpart D of 40 CFR part 261;

:: If a listed waste meets the land disposal restrictions under 40 CFR part 268;

:: If the waste exhibits one or more hazardous characteristics as identified in subpart C of 40 CFR part 261 by testing or applying their knowledge of the waste.
Response: The response to commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter as well. 
Comment: If EPA's goal is to ensure the accuracy of hazardous waste determinations, generators should have the flexibility to make the hazardous waste determination wherever it can best be made by those individuals who possess the knowledge to do so. The physical location of the determination should not be rigidly prescribed.

Moreover, in many instances, a hazardous waste determination can be made only after the test results are received. University EI-IS is often asked to collect unwanted material from the point of generation (e.g., a shop, construction site or laboratory). The material is removed from the point of generation and taken to a CAA where a sample is taken and sent for testing, after which the hazardous waste determination is made. We believe that the prompt removal of the unwanted material from the point of generation prior to making the hazardous waste determination minimizes the chances that the waste might be mismanaged.

We also urge EPA to reconsider proposed § 262.11(a), under which the hazardous waste determination must be made before dilution or mixing of wastes occurs.
Universities ensure correct hazardous waste determinations and appropriate hazardous waste management by having procedures for the identification, collection and disposal of hazardous waste. EPA has acknowledged that such procedures prevent waste mismanagement and ensure accurate hazardous waste determinations in § 262.207(b) of Subpart K. These procedures also ensure the safe disposal of chemical waste that is not RCRA-regulated. For these reasons, we urge EPA to require that generators to develop and implement appropriate procedures to ensure that accurate waste determinations are made in a manner that ensures proper management of the waste instead of prescribing that waste determinations be made at the point of generation and before any dilution, mixing or alteration. (0166)
Response: The responses to Commenter 0063 at the beginning of this section as well as Commenter 0113 address many of the concerns and comments of this commenter. Regarding the last comment, the Agency agrees that generators should develop and implement appropriate procedures to ensure that accurate waste determinations are made in a manner that ensures proper management of the waste instead of prescribing that waste determinations be made at the point of generation and before any dilution, mixing or alteration. To the extent that the Agency can assist in this endeavor, it will do so. 
Comment: VIII.B.3. When and Where To Make a Hazardous Waste Determination
DEQ believes the proposed changes to 262.11(a) adequately clarify when a hazardous waste determination should be made. (0182)
Response: The Agency thanks this commenter for their support.
Comment: At large and diverse institutions such as KULC, generation point or SAA staff are not trained to make a hazardous waste determination and cannot reasonably be expected to do so in an effective manner considering the complexity of the regulations. Rather, trained and competent EHS staff make the waste determination at the time that the waste is collected and transported to the central accumulation area. SAA staff are simply trained to containerize wastes (both RCRA-regulated and non-RCRA-regulated) for later collection by EHS; to label the containers with all information necessary to make a proper waste determination (including the proper chemical name and amount of all chemical constituents in the container); to use containers of good integrity and compatible with the contents; and to keep containers closed except when immediately adding or removing waste from the container. This level of training is a reasonable expectation for SAA staff, particularly in situations where the wastes generated are not regular, routine, and consistent (e.g., research laboratory wastes vs. industrial waste) and where SAA staff are often transient in nature (e.g., students). It is unreasonable to expect SAA staff to be competent to make a hazardous waste determination, and it is unreasonable to expect EHS staff to make determinations prior to a waste being generated especially in situations such as research laboratories. (0183)
Response: The response to Commenter 0063 at the beginning of this section addresses the concerns and comments of this commenter.
Comment: Pages 57937 -5739, Section VIII.B.2. and 3.: Utah agrees that the Agency needs to provide clarification on when a hazardous waste determination must be made and subsequently reexamined. Utah recommends the Agency provide clarification of other scenarios such as when a transporter bulks multiple generator items and how the bulked waste stream hazards are identified. (0185)

Response: Transporters have a responsibility to make a hazardous waste determination any time they bulk multiple generator items. 
Comment: Idaho DEQ believes it is unclear why "exposure to the environment" is singled out here. Is exposure to the environment more prevalent in causing a change in waste properties than other factors? (0189)
Response: Exposure to the environment is simply an example of a factor that can change some of the properties of some wastes (e.g., waste drying out or getting wet or aqueous wastes can absorb carbon dioxide from the ambient air, which can change the pH of the waste). Wastes may also change through spontaneous changes (e.g., an emulsion breaking into two distinct layers), due to variability in feedstocks, change to a different feedstock chemical supplier, changes to the manufacturing process, and possibly other factors.

Comment: The proposed requirement for a hazardous waste determination to be made at the point of waste generation before any dilution, mixing, or other alteration would place an unnecessary burden on higher education sector institutions, particularly in research and teaching laboratories. Laboratories, art studios, and other research and teaching operations generate constantly changing waste streams at infrequent or erratic intervals. The researchers, principal investigators, and other staff are trained in the safe handling of chemical and associated waste streams, but not necessarily making a hazardous waste determination. Making the hazardous waste determination is better left to professionals trained in the nuances of not only the safe handling of chemicals and associated waste, but also the nuances of RCRA. This determination would be made at the time the waste is removed from the satellite accumulation area, or when it is collected in a central accumulation area.

This requirement will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. At the same time, requiring lab personnel to conduct the hazardous waste determination would remove the environmental health and safety professional from being involved in the formal determination at a central accumulation area. This may increase liability for the institution. EPA previously recognized that academic labs conduct waste determinations differently from general industry in its preamble to Subpart K(7i FR 29728):

With the flexibility to make the hazardous waste determination in the laboratory, in an on-site central accumulation area or on-site TSDF, the individual in the laboratory generating the waste does not need to be familiar with the RCRA hazardous waste determination process.

Few academic institutions have opted to follow Subpart K. While it provides some relief from the regulatory burden for laboratory waste streams, academic institutions have more than just laboratory wastes to handle. Subpart K provides no regulatory framework for the other waste streams generated on campus; thereby forcing the generator to manage two distinct hazardous waste programs with very specific differences. (0190)
Response: The responses to Commenter 0063 at the beginning of this section addresses many of the concerns and comments of this commenter. Regarding other waste streams generated on campus, the Agency recommends the generator should establish the necessary processes and procedures to make an accurate hazardous waste determination at the point of generation. 
Comment: SOCMA is troubled by the proposed requirement that generators repeat a waste determination "at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." Again, generators are already on the hook to have made correct waste determinations at any stage in the management of a hazardous waste. The quoted language would seem to serve no purpose beyond giving EPA a basis for taking enforcement action even though a determination was correct. (0192)

Response: The Agency directs this commenter to our response to Commenter 0113. Those comments are responsive to this commenter as well. 
Comment: Moreover, proposed Section 262.11 states that determinations must be made any time waste properties have, or may change, after initial generation, but does not provide the clarity generators need to understand when, where and how often these determinations must be made.For example, a company may choose not to sample a waste every time it is generated, but may manage their waste conservatively as hazardous waste. This may occur when the composition of the waste is known, but the actual concentrations may vary and it may cost more or take more time to continually sample the waste than it would to just manage it as a hazardous waste out of an abundance of caution. EPA states in the preamble that generators often make a hazardous waste determination when the material is actually a non-hazardous waste and the intent of this proposed change would not impact this. (0200)
Response:The responses to Commenter 0063 at the beginning of this section addresses many of the concerns and comments of this commenter. Regarding the comments associated with managing a waste as a hazardous waste out of an abundance of caution, one reason for including regulatory language explaining a generator must make an accurate waste determination to ensure the wastes are properly managed is to clarify the applicability of § 262.11 in instances in which generators choose to manage their non-hazardous wastes as hazardous wastes. Even if the waste may not be hazardous, "over managing" the wasteis acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
Comment: We have major concerns with the emphasis on making a waste determination at the initial moment of generation. The rule does not address ambiguities related to the "point of generation" of a hazardous waste. At what moment in time does the application of Resource Conservation and Recovery Act (RCRA) requirements begin? An interpretation could be that every individual, whenever producing any waste, be it from an experiment or from repairing a hole in drywall, must make a detailed hazardous waste determination and document said event. This would be an untenable situation on academic campuses with thousands, if not hundreds of thousands, of determinations made annually and subsequent training and recordkeeping requirements. Numerous other campus operations create solid waste where current simple choices, such as recycling scrap metal or disposal of construction and demolition (C&D) debris, are made complex and include new documentation that must be compiled and retained for three years. (0202)
Response: The responses to Commenter 0063 at the beginning of this section addresses many of the concerns and comments of this commenter.

Comment: Define "Point of Generation". The POG is a fundamental and important concept under RCRA and is used numerous times in the RCRA rules, but it is not defined in the RCRA rules. Since the POG definition changes based on the context the POG is used, the POG definition would need to address: when and where hazardous waste is generated, waste coding, waste counting, treatment in 90-day units, remediation waste, Land Disposal Restriction (LDR) requirements, spills. (0206)
Response: The above comments are addressed not only in 40 CFR 262.11 of this new rule but in different parts of existing regulations. 
Comment: Comment #3a: Purdue requests the phrase "at the point of waste generation, before dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste" be removed from the proposed revision to 40 CFR 262.11(a).

The current rules already require an accurate waste determination to be made and we believe requiring it to be made specifically at the point of generation will not increase the accuracy of the waste determination process. Currently, it is common practice in both industrial and academic settings for waste to be generated in satellite accumulation areas, labeled as "Hazardous Waste" along with an accurate description of the waste (e.g., "Methylene Chloride Waste"), and later managed by trained hazardous waste professionals (e.g., skilled internal EHS staff, trained external waste contractors) who routinely conduct waste determinations. This type of waste management does not require all staff involved with the collection of hazardous waste (e.g., researcher in a laboratory setting, floor worker in a manufacturing setting) to be trained on the technical details of waste determination and EPA waste code application; they are simply trained to collect and manage chemical wastes according to their organization's internal waste management program.

Purdue believes that performing a waste determination at the point of generation as EPA proposes will require extensive and detailed training of laboratory staff. At a university like Purdue, this could be thousands of individuals in an inherently transient population. In addition, depending on their laboratory duties, many of these staff would perform waste determinations on such an infrequent basis that the number of improper waste determinations could potentially increase under the proposed rule, ultimately leading to improper waste disposal; an outcome that is counter to EPA's stated goal in the rule improvements proposal. We believe the proposed requirement to perform waste determination at the point of generation is not necessary, has the potential to increases the number of improper waste determinations made, and does not provide any additional protection to human health or the environment. (0208)
Response: The Agency disagrees with the request of this commenter to removethe phrase "at the point of waste generation, before dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." The Agency suggest the commenter review the response to Commenter 0139 above, as well as Commenter 0063 to understand the Agency's position. 
Comment: We are most concerned about the following three proposed requirements:

:: Making the hazardous waste determination at the point of generation.
:: Maintaining records of all hazardous waste determinations, including records of determinations that find that a solid waste is not a hazardous waste.
:: Additional marking and labeling requirements for hazardous waste containers. 

All if these new requirements would be extremely burdensome and, more importantly, may result in reduced efficiency and safety associated with hazardous waste management. (0211)
Response: The response to Commenter 0063 addresses commenter's comment and concern in the first bullet. The second bullet is no longer relevant since the Agency is not finalizing the requirement that generators maintain records of their non-hazardous waste determinations. Regarding the third bullet, the Agency has clarified the marking and labeling requirements for hazardous waste containers and our response to Commenter 0063 addresses this concern and comment.
Comment: Making the hazardous waste determination at the point of generation.
Adding this requirement is particularly concerning and problematic because chemical wastes are generated in hundreds of locations on a University campus. It is unrealistic to expect all of the faculty, staff, and students generating waste chemicals to develop the knowledge to accurately make the hazardous waste determination at the point of generation. Granted, these individual can determine that the material is a hazardous chemical that they no longer have a use for (a hazardous waste); however, they should not be expected to make the regulatory determination as to whether or not this "hazardous waste" is subject to the provisions of RCRA. That determination is, and should remain, the responsibility of an EHS professional or hazardous waste vendor. This two-step process has worked well for many years and has proven to be safe, efficient, and effective. We encourage the EPA to reconsider this proposed requirement. (0211)
Response: The Agency's response to Commenter 0063 responds to the above comments as well.
Comment: :: Clarify the "point of generation" for leftover materials in containers or process units that are not RCRA empty after the contents have been used. One example is disposable paint pots used with coatings that have a limited pot life. These are typically ignitable or toxic when the pot life ends, but polymerize within a fairly short time. Currently 40 CFR 261.4(c) gives as long as 90 days for the material in a paint pot to polymerize, before the unit is subject to regulation. The inspector has no way of knowing whether a particular pot is holding a two part paint that will polymerize before the end of shift vs. a solvent based paint that is just being allowed to dry out. 

:: "Point of generation" question involves re-use of electroplating type rinse waters, when the operator does not have a clean water act regulated discharge. If rinse water is recycled through a settling tank, and returned to a process tank, how are the solids that settle in the process and recycling tanks regulated? Are the solids regulated, or exempt under 261.4(c)? (0214)
Response: In general terms, it is the generator's responsibility to understand the chemicals and processes it is dealing with such that it can make an accurate hazardous waste determination at the point of generation; i.e., after the contents have been used. 
Regarding the second bullet, so long as process is in operation, the solids are exempt per 261.4(c). However, periodically, the process tank may be removed from operations for maintenance. At that time, a hazardous waste determination would need to occur for any solids removed from the process tank; i.e. at the point of generation. 
Comment: Section VIII.B. (Page 57935): The proposed revisions to hazardous waste determination at §262.11(a) are commended by one State. The proposed language provides more detailed information on the process of waste determination, most importantly the concept of "point of generation". This State offers insertion of one parenthetic statement into the proposed language. While it may appear redundant, the following suggested statement further emphasizes the basis for the definition of point of generation, as follows "(a) A hazardous waste determination for each solid waste must be made at the point of waste generation (i.e., when the material first becomes a solid waste), before any dilution, mixing, or other alteration of the waste occurs..." (0217) 
Response: The following regulatory text found in the final rule at 40 CFR 262.11(a) is responsive to the commenter's suggestion. "A person who generates a solid waste, as defined in 40 CFR 261.2, must make an accurate determination as to whether that waste is a hazardous waste in order to ensure wastes are properly managed according to applicable RCRA regulations."
Comment: Section VIII.B.3 (Page 57939): The States agree with the premise of adding a new §262.11(a) to clarify when the waste determination must be made. However, there are a lot of conditions listed in this one paragraph. One State suggests that EPA consider breaking the requirements down into sub-paragraphs (a) (1), (a) (2), and (a) (3). It is believed that breaking this section down would help clarify the requirement. (0217)
Response: The final regulatory language is clear and it is not necessary to break §262.11(a) into three sub-paragraphs. 

Comment: Hazardous waste determination at point of generation will create unreasonable burden without benefit in the higher education sector, especially on research operations, an area in which teaching and discovery activities produce constantly changing waste streams. Hazardous waste determination at the point of generation would require that complex regulatory decisions be made by the research faculty, staff and students who conduct the research. This population is not in the business of making complex regulatory decisions, and frequent changes in the faculty and student population make training in this area difficult. Further, imposing additional burdens on research staff could lead to less compliance. Rather than require research faculty, staff and students to make hazardous waste determinations, trained and experienced EHS personnel should make waste and compatibility determinations, and maintain required records relating to research efforts. This approach promotes consistency, removes risk of poor decisions from untrained or unengaged personnel, and leads to better compliance and ultimately better resource protection. (0218)
Response: The Agency's response to Commenter 0063 responds to the above comments as well.
Comment: EPA should not adopt the proposed rule that states that the waste determination must be at the "point of generation" and "before any dilution, mixing, or other alteration of the waste," because such would contradict several rules and interpretations whereby the waste determination is to be made after "dilution, mixing, or other alteration of the waste." (See Comment #10). (0219)
Response: The Agency disagrees with the above comments and directs the commenter to its responses to Commenters 0063 and 0113. 
Comment: Industrial Generators do not question the fundamental RCRA requirement that a hazardous waste determination be made by the generator of a solid waste, and later, if the waste changes. However, the language EPA has proposed  -  - "before any dilution, mixing or other alteration of the waste occurs," will create confusion and should be deleted, and the reference to "at the point of waste generation" should be avoided.(0219)
Response: The Agency disagrees with the above comment and directs the commenter to its responses to Commenter 0063. 

Comment: Under 40 CFR §261.4(c), hazardous waste generated within a manufacturing process unit is not subject to regulation, including a hazardous waste determination, until it is removed from the unit or remains in the unit for more than 90 days after operations cease. The proposed language suggests that the hazardous waste determination will need to be made before removal, especially if the removal, such as with water, were to alter the composition of the waste. (0219)
Response: The above interpretation about the proposed language is incorrect. The manufacturing unit exemption at 40 CFR §261.4(c) is still applicable and is not changed by this rule. A hazardous waste determination will not have to be made until the waste is removed from the unit or remains in the unit for more than 90 days after operations cease.
Comment: When an intact building that is intended for discard is demolished, the point of generation and hazardous waste determination is after the demolition occurs and the construction debris is ready for removal. See letter M. Shapiro to K. Kastner (June 3,1994). The proposed language suggests that the point of generation and waste determination would be before the demolition. (0219)


Response: The Agency disagrees that the long-standing policy (which is now being codified) requiring RCRA determinations to be made at the point of generation implies that intact buildings that may eventually be demolished are a waste before demolition. In demolishing a building there are several steps. Often one of the first steps is removal of some building components in preparation for demolition (such as lead-painted doors or mercury lamps or thermostats). These removed materials become separate from the building, by the act of removal. A decision needs to be made as to whether these materials can be recycled or reused or whether they are a solid or hazardous waste. The point of generation for these materials would be when they are removed from the building.
Once the building is demolished, or as the building is being demolished, waste is or may be generated. It is at this point or points that a determination(s) must be made as to whether these materials (e.g., wood, concrete, steel) can be recycled/re-used or are they wastes, and if wastes, whether they are solid or hazardous wastes.

Comment: Even though cleaning out a power plant boiler will generate several distinct liquid washout streams, and the first or second stream by themselves might exhibit a hazardous waste characteristic, the waste determination can be made on the combined streams. See 62 FR at 26006-26007 (May 12, 1997). The proposed language suggests that the waste determination would have to be made on each separate washout stream before any dilution. (0219)
Response: In this situation, the Agency determined that "specific to power plant boiler cleanout (and potentially, to other sporadic cleaning activities involving multiple rinses), generation is at the completion of the entire cleanout process. EPA believes that the mass loading of hazardous constituents from the process to the environment will not be affected by this determination, since a given amount of cleanout fluid and water is needed to complete the task in every case.... The agency views the cleanout of the boilers as one process and therefore does not consider the mixing of acid rinse and water rinse as impermissible dilution but as a single waste rinsate resulting from the single cleanout process." (See 62 FR 26006). This interpretation still stands and is not superseded or affected by this final rule.

Comment: The problem with the proposed language is that it goes too far by categorically saying that the point of generation and point of waste determination are always before any dilution, mixing or other alteration of the waste. Further, by stating that the hazardous waste determination must be made at the "point of generation," EPA is both "begging the question" as to where the point of generation is and potentially opening up that concept to new interpretations that disregard EPA's prior nuanced interpretations. The point of generation and point of waste determination are difficult concepts. EPA should not try to codify these concepts in an overly-generalized rule that loses or confuses the nuance EPA has provided in its many interpretations. Thus, we suggest that either EPA delete altogether this proposed rule at 40 CFR §262.11(a), or limit it to say, "a hazardous waste determination for each solid waste must be made by the generator, and at any time in the course of its management when the waste has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." This language will alert generators to their obligation to make waste determinations, yet not interfere with the many point of generation and point of waste determination interpretations that EPA has issued over the years.

Further, EPA should clarify in the final rule that this requirement to make a hazardous waste determination only applies to materials that are generated as solid wastes. Materials that are excluded from the definition of solid waste, such as discharges to a POTW, or hazardous secondary materials that are reclaimed in a closed-loop, are not solid wastes under 40 CFR §261.4(a)(1)(ii) and §261.4(a)(8) respectively, and therefore, would not be subject to a hazardous waste determination. (0219)
Response: The Agency disagrees with the proposed suggestion and directs the commenter to our response to Commenters 0063 and 0139. Similarly, with respect to the last comment, we note that the Agency is not finalizing the proposed rule's requirement for documentation of non-hazardous waste determinations. 
Comment: Industrial Generators urge EPA to clarify that wastewaters that are directed via pipe or other enclosed means of conveyance from industrial operations into a wastewater treatment unit ("WWTU") as defined in 40 CFR §260.10 do not have to be classified as to whether they are hazardous and if so for what waste codes. Such classification serves no regulatory or environmental purpose.

A tank-based wastewater treatment system and its ancillary equipment that meet the definition of a WWTU are not regulated under RCRA. What the hazardous waste codes might be for such wastewater that is conveyed to the wastewater treatment system is of no consequence. Further, when the wastewater is discharged under an NPDES permit or to a POTW, the discharge is excluded from the definition of solid waste under 40 CFR §261.4(a)(1) and (2), and therefore, knowing the hazardous waste codes that attached to such wastewater before discharge is of no consequence.

We recognize that materials that are removed from a wastewater treatment system, such as sludges and filters, would have to be classified as to whether they are hazardous waste, and if so, which codes they carry. But that waste classification should occur at their points of generation when they are removed from the WWTU. The wastewater itself, which is treated and discharged, would qualify for the discharge exclusions from the definition of solid waste, and while in the WWTU, the WWTU is exempt from RCRA, so there really is no need for each wastewater stream to be classified and coded.

At a typical manufacturing plant that generates diverse wastewater streams, dozens if not hundreds of wastewater streams can be collected, directed to the headworks of the WWTU, and then treated in the WWTU. To have to identify whether each of these wastewater streams that are conveyed via pipe to a WWTU are hazardous at their points of generation when they are not subject to regulation under RCRA makes little sense. One objective of this rulemaking is to remove unnecessary regulations. In that spirit, the requirement to classify wastewater streams that are conveyed via pipe to a WWTU should be removed. (0219)
Response: The Agencyrefers the commenter to a guidance memo dated April 1, 1985 (RCRA Online #11066). In that memo, EPA states:
Only the wastewater treatment unit (i.e., the tanks) is exempt; the exemption does not "follow" or attach to the waste. 
We also refer the commenter to a Q&A from June 1992 (RCRA Online # 13541), where we expand on the 1985 memo by going on to say:
Consequently, all applicable hazardous management standards apply to the waste prior to treatment in the WWTU, and to any residue generated by the treatment of that waste. In other words, solid waste resulting from the treatment of a listed hazardous waste in an exempt WWTU will remain a listed hazardous waste, and solid waste resulting from the treatment of a characteristic hazardous waste in an exempt unit will remain hazardous as long as the solid waste continue to exhibit a characteristic. 
As indicated by this guidance, a generator must make a solid and hazardous waste determination for the wastewaters in order for the wastewaters (and the treatment residues) to be subsequently managed and treated effectively. Making the hazardous waste determination under §262.11 includes identifying all the applicable RCRA waste codes, including listings and characteristics (see §262.11(g)). However, only containers less than 119 gallons that are shipped off-site are required to be marked/labeled with the applicable hazardous waste codes (see §262.32). 

Comment: Another comment I have points to the requirement to make a waste determination at the point of generation. This language is open to interpretation and may be contrary to the practice of many generators who use the expertise of a relatively small set of experts for this purpose. It is not nearly as troublesome for those that generate similar waste streams through long periods of time in which case the determinations are fairly straight forward and unchanging. But other generators see many changes and many waste streams that can ultimately push the waste into other RCRA hazard classes or require a much different method for management up to final disposal. The length and diversity of the RCRA listed and characteristic waste lists and the LDR requirements are clear evidence of this. Since the issue that is being addressed by this rule appears to be one of inadequate characterizing at the point of generation, I suggest that a minimum set of standards be required for those wastes that will be finally characterized by waste experts. Containers kept at SAA's or CAA's should be labeled with hazardous waste labels and managed properly (compatible storage, secondary containment, closed containers, clear English descriptions of contents, start dates, etc). Determinations can be quite complex and already can pose some challenges for highly experienced staff. This rule again seems to indicate that EPA has issues that could be focused upon instead of finalizing a rule that will have unintended negative consequences for the regulated community. It may be more difficult to address these by specific rule changes but the catch-all approach will cause undue harm to the regulated community in terms of human resources and time and is may be challenged in the courts. I believe that hazardous waste is better managed by the experts and the complexity of the RCRA rules may encourage improper management by people who have not been required to become RCRA experts. One way of interpreting the words as currently written is that they would have to become such experts now. This was not EPA's intent but it may be an unintended consequence that does not help generators nor the environment. It will also require unnecessary time and effort for EPA's staff to enforce with no apparent benefit to the environment.
I think the requirement to add more information to hazardous waste containers stored in SAA's and CAA's may create practical issues but otherwise seems to be a reasonable approach. But any information already on the container should be enough. The hazardous waste label could be slightly modified to include hazard classes and give the emergency management personnel additional, helpful information. But there are containers that make this virtually impossible and a more helpful approach may be to mark a secondary container with the hazardous waste label that includes the other hazard information so that those containers that are too small for such labeling and information can be placed in it. (0222)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: Finally, TCCI is concerned about the language included at 262.11(a) which states the following:

"A hazardous waste determination for each solid waste must be made at the point of waste generation before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste."

There is a potential conflict regarding the characterization of wastewaters that are discharged to a publicly owned treatment works (POTW) or an onsite NPDES permitted facility. The state of Tennessee allows for aggregation of wastewaters prior to characterizing the combined stream prior to discharge to the POTW or the onsite treatment facility. TCCI is not aware of any instance where this process has resulted in a potential adverse impact on human health or the environment. This provision is critical to the annual reporting and recordkeeping required by the Tennessee Hazardous Waste Management regulations.

Tennessee Rule 0400-12-01-.03(5)(a)3 states the following:

"A generator must keep records as necessary to demonstrate compliance with subparagraph (1)(b) of this rule - to include any test results, waste analyses, or other determinations made in accordance with that subparagraph - for at least 3 years from the date that the waste was last sent to on-site or off-site hazardous or nonhazardous waste treatment, storage, or disposal facilities. Such record must document the basis for the hazardous waste determination, including those determinations based on the generators knowledge of materials and processes utilized rather than on laboratory analyses. Pursuant to Rule 0400-12-01-.03(2)(a)2, this requirement does not apply to individual wastewater streams in cases where the hazardous waste determination is made on the conglomerate waste stream." (emphasis added)

TCCI asks that EPA consider an exception for wastewaters that are not actively managed in regulated units prior to discharge to the POTW or other NPDES permitted facility. (0225)
Response: The Agencyrefers the commenter to a guidance memo dated April 1, 1985 (RCRA Online #11066). In that memo, EPA states:
Only the wastewater treatment unit (i.e., the tanks) is exempt; the exemption does not "follow" or attach to the waste. 
We also refer the commenter to a Q&A from June 1992 (RCRA Online # 13541), where we expand on the 1985 memo by going on to say:
Consequently, all applicable hazardous management standards apply to the waste prior to treatment in the WWTU, and to any residue generated by the treatment of that waste. In other words, solid waste resulting from the treatment of a listed hazardous waste in an exempt WWTU will remain a listed hazardous waste, and solid waste resulting from the treatment of a characteristic hazardous waste in an exempt unit will remain hazardous as long as the solid waste continue to exhibit a characteristic. 
As indicated by this guidance, a generator must make a solid and hazardous waste determination for the wastewaters in order for the wastewaters (and the treatment residues) to be subsequently managed and treated effectively. Making the hazardous waste determination under §262.11 includes identifying all the applicable RCRA waste codes, including listings and characteristics (see §262.11(g)). However, only containers less than 119 gallons that are shipped off-site are required to be marked/labeled with the applicable hazardous waste codes (see §262.32). 

Comment: It is understandable that EPA has a concern about inadequate waste determination processes but the proposed solution does not scale at all with the problem in a research/laboratory setting. In the Proposed Rule, section 262.11(a) of Title 40 of the Code of Federal Regulations requires a "hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs. Laboratories produce many individual containers of different mixtures of hazardous chemicals in a wide variety of sizes and configurations, from 5 milliliter vials to 5 gallon drums. To expect a laboratory or research center to document the basis for a hazardous determination on a container-by-container process does not add value and will significantly increase the amount of record keeping required to meet these regulatory requirements.An organization should be able to do a waste determination at the organizational level with environmental compliance professionals if there is a clear management system in place. A specialized dedicated group of an organization can ensure the safe management of hazardous waste by developing and training staff in easy-to-understand procedures, and by providing prompt and easy-to-use removal services for unwanted materials. Regulatory flexibility in how these wastes are managed is critically important for the safe management of all waste types. The physical location of the determination should not be rigidly prescribed and EPA should simply require that generators develop and implement appropriate procedures to ensure that accurate waste determinations are made in a manner that ensures proper management of the waste. (0227) 

Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: Hazardous waste determination at the point of generation

The EPA does intend this to mean that the full determination (minus waste codes) needs to happen at the point of generation.
:: This was not written with laboratories in mind.
:: If we don't like it, we should be opting into Subpart K, which gives relief from this requirement.
:: If we have ideas for a better solution, offer it. (0227)
Response: The Agency agrees with the above comments. 
Comment: In the proposed rule, section 262.11 (a) of Title 40 of the Code of Federal Regulations requires that a "hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs." Although we agree that the revised requirements will make the waste determination obligations clearer, we are concerned that the proposed modifications will be unnecessarily burdensome, difficult to implement, and, in our view, will not result in more accurate waste determinations.

We agree that the hazardous waste determination needs to be accurate, but for the great number of constantly changing varieties of wastes generated at universities it is simply unfeasible to train the students and staff present at the point of generation to reliably and accurately make a hazardous waste determination as required by § 262.11(b)-(d) (0228)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: We also urge EPA to reconsider proposed§ 262.11(a), under which the hazardous waste determination must be made before dilution or mixing of wastes occurs.
....we urge EPA to require generators to develop and implement appropriate procedures to ensure that accurate waste determinations are made in a manner that ensures proper management of the waste instead of prescribing that waste determinations be made at the point of generation and before any dilution, mixing or alteration. (0229)
Response: The Agency directs the commenter to its response to Commenter 0113 where we respond to this commenter's concerns. The Agency also agrees with the general concept of generators developing and implementing appropriate procedures to ensure that accurate waste determinations are made in a manner that ensures proper management of the waste. To the extent EPA can assist in this effort, it will do so. 
Comment: (a) A hazardous waste determination for each solid waste must be made at the point of waste generation, before any dilution, mixing or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste.

Comment: The proposed requirement is overly prescriptive and does not take into account the infinitely varied laboratory operations of relatively small scale that occur routinely at universities. The effect of the proposed regulation is to shift the responsibility and knowledge base of well trained and experienced environmental health and safety hazardous waste professionals to a much larger population of quite variable individuals (faculty, staff and students) who are not experienced or trained in making hazardous waste determinations in accordance with the strict requirements of EPA. It is impractical, unsafe and an unreasonable mismanagement of resources to expect this broad population of highly skilled researchers to divert and dilute their primary focus on mission critical research toward more comprehensive waste management activities. Hazardous waste determinations are more effectively and efficiently carried out by very experienced EHS professionals with in-depth RCRA specific training. Neither the depth of experience nor training can be practically imparted to the masses of laboratory workers, a fair number of whom turnover with matriculation. Given the resource management and stewardship responsibilities required of universities, it would be equally unreasonable to increase the EHS staffing to levels that would be required to provide point of waste generation hazardous waste determinations in each laboratory. The requirement as proposed seems would be of more functional benefit for larger scale production operations, involving waste container sizes greater than 55 gallons at point of waste generation. (0231)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: Proposed Revision to 40 CFR Part 262 Section B. Waste Determinations (40 CFR 262.11)

BI agrees that a robust process/program to ensure that solid wastes that exhibit characteristics that pose a risk to human health and the environment must be in place at all generators of solid wastes . BI also agrees that the process must begin at the location and time of generation with information from the direct generator of the waste.

While a traditional waste determination based upon processes, feedstocks, or outputs may be practical for a manufacturing operation; this traditional type of waste determination becomes complicated for research and development laboratories.

In research and development laboratories, requiring the creation of an individual record of waste determination at the point of generation, including application of waste codes, is burdensome and impractical. Laboratories generally have a large number of points of generation and a high number of low volume waste streams at each point of generation. In research and development laboratories, a documented robust process/program that includes the following elements could take the place of the proposed waste determination process:

:: Part 1: A documented process/program that ensures generators funnel any suspect hazardous solid wastes into the hazardous waste stream and not a non-hazardous waste stream or Clean Water Act system. The process should include the documentation of information on the solid wastes characteristics and generation processes at the point of generation.

:: Part 2: Specially trained individuals experienced in RCRA hazardous waste determinations make the more complete documented waste determination at a central accumulation area.

:: Part 3: Specially trained individuals, familiar with the RCRA and Department of Transportation (DOT) regulations to ensure proper shipment and treatment of all hazardous wastes.

:: Part 4: The creation of a robust documented process/program to define the solid wastes that are acceptable, and are not acceptable for the non-hazardous waste stream or Clean Water Act system.

BI supports the proposed changes for manufacturing/production operations but requests the EPA revisit the prescriptive waste determination process and consider a more performance based waste determination approach for research & development laboratories. A performance based approach will allow for more flexibility in the process for research and development facilities while meeting the intent of the regulation and ensuring the protection of human health and the environment. (0236)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: The C2E2 requests that EPA provide additional flexibility for when and how the final "waste determination" should be completed and documented. EPA Proposed text - 262.11 (a) A hazardous waste determination for each solid waste must be made at the point of waste generation. 

Alternative Suggestion  -  as described in subpart K  -  the person generating the waste should label a container with the contents and hazards so that a trained professional can make the full waste determination. The final waste determination should be made at the central waste accumulation area before it is packaged for shipment. (0238)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: Revising 40 CFR 262.11 to state that a waste determination must be made at the point of generation will severely limit waste management options and increase costs for waste generators. RCRA regulations are already so complex that making waste determinations requires specialized skills and training. At UVA waste determinations are made by our trained EHS staff at our 90 day waste facility. For us requiring a waste determination at the point of generation would require either for our staff to do this work at hundreds of different locations around the university prior to collection, or require a UVA EHS to provide thousands of employees with waste determination training, which would be a never ending process in the highly transient student/researcher population. Either of these options would require UVA to increase EHS staff from present levels and would cost a great deal of money. 

Additionally, under the scenario where the waste determination is made by the laboratory staff we believe this will result in much greater inaccuracies in the waste determination process. Depending on their laboratory duties, many of these staff would perform waste determinations on such an infrequent basis that their proficiency in the process would never reach an acceptable level, leading to improper waste determinations and, ultimately, improper waste disposal; an outcome that is counter to EPA's stated goal in the rule improvements proposal. 

Please consider the following example of the complexity of this proposed rule at an academic setting such as UVA: It is common for researchers to use a single collection container for organic solvent wastes generated at one location (laboratory) during various lab operations. In this example, Researcher A generates 500 mL of acetone waste in one experiment and places it into a five gallon waste container. Under the proposed rule Researcher A would be required to conduct a waste determination as soon as the acetone waste is generated. The acetone is pure and the sole active ingredient, so Researcher A would need to apply the EPA waste codes D001 and U002 to the waste container. Then within the same lab, Researcher B generates 200 mL chloroform waste during another experiment and places it in the same waste container as the acetone waste. Researcher B would also have to perform a waste determination at the point of generation. The chloroform is pure and the sole active ingredient, so Researcher B would apply the EPA waste codes D022 and U044. But now the waste in the container is neither pure acetone nor pure chloroform, so do the U002 and U044 codes still apply to this waste? Furthermore, there is still ~18,300 mL of empty volume in this container so there will likely be many more small quantities of waste added to it, requiring many more waste determinations to be made and documented, each of these having to take into account all of the constituents of the waste previously added to the container. And each of these determinations would be required to be maintained for 3 years. We believe this process would be inefficient, prone to many errors, and would not provide any additional protection to human health or the environment. And in the end, accurate waste determinations would still need to be made when the waste reached UVA's 90 day waste facility, as they are currently.

In summary, we believe the proposed requirement to perform waste determination at the point of generation is not necessary, has the potential to increases the number of improper waste determinations made, and does not provide any additional protection to human health or the environment. If the concern is comingling with other wastes as to then make the material non-hazardous (aka dilution) this practice is already explicitly forbidden in 40 CFR 268.3. (0242)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: Waste identification must occur at the point of generation, but "waste determination" can be done successfully downstream. Trained environmental professionals should make a final waste determination using clear regulatory criteria and information on container labels as the primary form of "generator knowledge". While the use of pH paper to confirm a waste code is fairly simple test, analytical testing for laboratory containers is neither practical nor cost effective. The evaluation of laboratory "unknowns" should be addressed specifically in the rules. Additional documentation of the waste determination for laboratory containers (either positive or negative) is not practical and provides little value.

The subpart K model is applicable here as it requires that the system for waste identification and determination be documented along with documentation of training for the professionals who execute it. We support an update to Subpart K to promote wider adoption of the standard. (0244)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: 3. When and Where To Make a Hazardous Waste Determination

DC agrees that this will clarify the current requirements, but encourages EPA to modify the language to allow the waste determination to be deferred to a knowledgeable expert or for such an expert to be consulted as part of the waste determination process. (0248)


Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: This requirement needs to be amended as there are multiple aspects of the full waste determination process that often cannot occur "at the point of generation." When analytical is needed to fully characterize a waste, those results can take a week from the point the waste is generated and sampled. Instead the waste container should be labeled with sufficient information to communicate the hazards to coworkers and emergency responders and to facilitate waste characterization for disposal within the main (central) accumulation area (MAA) and prior to shipment. The final disposal characterization including waste codes, packaging in appropriate shipping containers, and labeling for transportation to the disposal facility should be completed by a trained professional (similar to the process described in subpart K under 40 CFR 262.210) and within the 90/180 storage timeline allowed under 40 CFR 262.17. Additionally, where an un-used or used material can be used by another entity on campus, the strict requirement that the waste determination be made at the point of generation will impede re-use and waste minimization opportunities. (0249)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: The change in requirements to make the hazardous waste determination at the point of generation will be a significant burden on Universities because of the large number of laboratories, personnel and chemicals involved. The personnel involved in research at a University are not all chemists and are not familiar with the details of hazardous material and hazardous waste classification. (0252)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: §262.11 (a) Hazardous waste determination and recordkeeping.

The proposed requirement for a hazardous waste determination to be made at the point of waste generation before any dilution, mixing, or other alteration would create undue hardship on higher education sector institutions, particularly in research and teaching laboratories. Laboratories, art studios, maker spaces, and other research and teaching operations generate constantly changing waste streams at infrequent or erratic intervals. The population of students, faculty, and staff is constantly changing.

We know from experience that we can achieve greater safety and compliance when an institution issues guidance to laboratory workers and other generators so they are informed about aspects of chemical waste such as the characteristics, the regulatory listing, safe collection and storage, what can be mixed together safely, and labeling. This is followed up with procedures for final waste determination, performed by highly trained personnel such as environmental health and safety staff either at the time the waste is removed from the laboratory or in a central accumulation area.

Our experience is that generators are much more likely to take a cautious approach and collect and offer chemical waste that is not regulated by RCRA than to dispose of the waste in a manner that poses a risk to human health or the environment (e.g., via the sanitary sewer or municipal solid waste). Thus, the proposed changes that clearly state that waste determination must be conducted at the point of generation may make it more likely rather than less likely that a laboratory worker would dispose of a chemical waste improperly, due to the complexity and added burden this change would place on the generator.

This change would clarify the requirement that hazardous waste determinations be made in the laboratory at the process outflow, in the laboratory apparatus effluent, or on the research bench. Multiple determinations may be necessary if the effluent or outflow changes during this process. Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point.

Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. In addition, this would remove the environmental health and safety professional from involvement in the formal determination at a central accumulation area.

EPA recognized this difference from how general industry makes waste determination in its preamble to Subpart K (71 FR 29728).

With the flexibility to make the hazardous waste determination in the laboratory, in an on-site central accumulation area or on-site TSDF, the individual in the laboratory generating the waste does not need to be familiar with the RCRA hazardous waste determination process.

Although few academic institutions have opted to follow Subpart K, either because their state has not recognized Subpart K or because they had issues with portions of the rule, the rationale for its promulgation remains valid and relevant.(0258)
Response: The Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns.
Comment: Please consider amending this requirement - there are multiple aspects of the full waste determination process that often cannot occur "at the point of generation." When analytical is needed to fully characterize a waste, those results can take a week from the point the waste is generated and sampled. (0280)
Additionally, when unwanted chemicals can be used by another entity on campus, the strict requirement that the waste determination be made at the point of generation will impede re-use and waste minimization opportunities. As suggested below, replacing the "point of generation" requirement with a generator specific waste management plan that describes in general how the waste determination is made for an entity would help to meet the intent of the regulations without restricting waste minimization and waste determination activities. (0280)
Response: Regarding the first paragraph above, the Agency directs the commenter to its response to Commenter 0063 where we respond to this commenter's concerns. Regarding the second paragraph, if unwanted chemicals can be legitimately used/reused by another entity on campus, the material is excluded from RCRA regulations per 40 CFR 261.2 (e). 
Comment: The proposed requirement for a hazardous waste determination to be made at the point of waste generation before any dilution, mixing, or other alteration would create undue hardship on higher education sector institutions, particularly in research and teaching laboratories. Laboratories, art studios, maker spaces, and other research and teaching operations generate constantly changing waste streams at infrequent or erratic intervals. The population of students, faculty, and staff is constantly changing. 
We know from experience that we can achieve greater safety and compliance when an institution issues guidance to laboratory workers and other generators so they are informed about aspects of chemical waste such as the characteristics, the regulatory listing, safe collection and storage, what can be mixed together safely, and labeling. This is followed up with procedures for final waste determination, performed by highly trained personnel such as environmental health and safety staff either at the time the waste is removed from the laboratory or in a central accumulation area. 

Our experience is that generators are much more likely to take a cautious approach and collect and offer chemical waste that is not regulated by RCRA than to dispose of the waste in a manner that poses a risk to human health or the environment (e.g., via the sanitary sewer or municipal solid waste). Thus, the proposed changes that clearly state that waste determination must be conducted at the point of generation may make it more likely rather than less likely that a laboratory worker would dispose of a chemical waste improperly, due to the complexity and added burden this change would place on the generator. 

This change would clarify the requirement that hazardous waste determinations be made in the laboratory at the process outflow, in the laboratory apparatus effluent, or on the research bench. Multiple determinations may be necessary if the effluent or outflow changes during this process. Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point. 
Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing. In addition, this would remove the environmental health and safety professional from involvement in the formal determination at a central accumulation area. (0282)
Response: The Agency directs the commenter to its responses to Commenter 0063 and Commenter 0113 where we respond to this commenter's concerns.
Comment: The current rules already require an accurate waste determination to be made. This includes factors at the point of ``hazardous waste generation'' for assigning waste code. This includes if the waste was spent or not spent at the point of generation and concentration of chemicals at the point of generation. We believe requiring it to be made specifically at the point of generation will not increase the accuracy of the waste determination process. (0284) Response: The Agency disagrees with the above comments. EPA believes that waste determinations are of utmost importance and warrant this emphasis regarding accuracy. As one commenter stated, "Accurate waste determinations are required to ensure that each waste stream generated by a company is properly managed. Additionally, accurate waste determinations protect workers by making the company and the worker(s) aware of the dangers of the waste(s) being managed. Further, accurate waste determinations will ultimately lead to an accurate generator status determination." (Comment by individual commenter. Docket number: EPA-HQ-RCRA-2012-0121-0160)
Some commenters argued in their comments that addition of the term "accurate" to the regulation would be superfluous, as the Agency's intent that hazardous waste determinations be accurate is self-evident, and that adding this term may even imply that other aspects of the RCRA program need not be accurately implemented. The Agency's intent is that all parts of the RCRA regulatory program be implemented in the manner required by the regulations. In adding the term "accurate" to the waste determination requirement of § 262.11, the Agency intends to emphasize the importance of this step in the waste management process. Inaccurate hazardous waste determinations will lead to violation of other RCRA regulatory requirements and mismanagement of the waste, which may result in damage to human health or the environment.

 
Another reason for including the language explaining a generator must make an accurate waste determination to ensure the wastes are properly managed is to clarify the applicability of § 262.11 in instances in which generators choose to manage their non-hazardous wastes as hazardous wastes. Even if the waste may not be hazardous, "over managing" the wasteis acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.

 
In addition to concerns about the regulatory status of over-classified wastes, commenters also expressed concerns about generators using the best available information and still making an inaccurate determination because of the errors and omissions of others. Generators are, and always have been, ultimately responsible for making accurate hazardous waste determinations. Hiring a third party contractor, waste broker, or consultant, or reliance on information provided by suppliers does not transfer this responsibility to those third parties. While the Agency understands that reliance on third parties may sometimes result in an inaccurate waste determination, the responsibility remains with the generator. It would be prudent for the generators to practice due diligence and establish processes and procedures that ask questions of their suppliers and waste management companies to understand why their materials are hazardous or not. 

Some commenters argued in their comments that addition of the term "accurate" to the regulation would be superfluous, as the Agency's intent that hazardous waste determinations be accurate is self-evident, and that adding this term may even imply that other aspects of the RCRA program need not be accurately implemented. The Agency's intent is that all parts of the RCRA regulatory program be implemented in the manner required by the regulations. In adding the term "accurate" to the waste determination requirement of § 262.11, the Agency intends to emphasize the importance of this step in the waste management process. Inaccurate hazardous waste determinations will lead to violation of other RCRA regulatory requirements and mismanagement of the waste, which may result in damage to human health or the environment.
Another reason for including the language explaining a generator must make an accurate waste determination to ensure the wastes are properly managed is to clarify the applicability of § 262.11 in instances in which generators choose to manage their non-hazardous wastes as hazardous wastes. Even if the waste may not be hazardous, "over managing" the wasteis acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
In addition to concerns about the regulatory status of over-classified wastes, commenters also expressed concerns about generators using the best available information and still making an inaccurate determination because of the errors and omissions of others. Generators are, and always have been, ultimately responsible for making accurate hazardous waste determinations. Hiring a third party contractor, waste broker, or consultant, or reliance on information provided by suppliers does not transfer this responsibility to those third parties. While the Agency understands that reliance on third parties may sometimes result in an inaccurate waste determination, the responsibility remains with the generator. It would be prudent for the generators to practice due diligence and establish processes and procedures that ask questions of their suppliers and waste management companies to understand why their materials are hazardous or not. 

Section 4.2.3 - Revisions for identifying listed hazardous waste


Comment: 14. Regarding specific proposed changes to section 262.11(c) related to listed hazardous waste determinations  -  Section VIII.B.4., pages 57939-57940: Colorado agrees with the proposed language additions in the new section 262.11(c) related to identifying how to determine if a solid waste meets any of the listing descriptions and the types of acceptable information that the generator could use to determine if their solid waste is a listed hazardous waste. (0085)
Comment: WRPS is in favor of the proposed changes in B.3, B.4, and B.5. WRPS is in favor of the portions of this proposed text that address when to make a hazardous waste determination, whether a waste is a listed hazardous waste, and whether a waste is a characteristic hazardous waste.


Comment: Section VIII.B.5 (Page 57940): The States believe the proposed changes to §262.11(c) help to clarify what constitutes an accurate hazardous waste determination. (0217)
Comment: Page 57939-40: 
4. Determining Whether a Waste Is a Listed Hazardous Waste
a. Identifying listed hazardous wastes.
b. Proposal to provide further explanation in regulatory text about listed waste determinations.

DC supports the clarification this change will provide. (0248)

Response: The Agency has no comment other than to thank the above commenters.
Comment: Section VIII.B. (Page 57935): In order to provide all possible situations in which a solid waste might be a listed waste, in particular due to mixture or derived from scenarios, one State suggests that cross references to §261.3 be added to this section. Observations have been made of the increased use of waste reclamation processes by generators such as portable solvent distillation units. The commercial vendors of the units often do not provide information on the regulatory status of the process residuals, leaving the generator to find and understand the concept of derived from listed wastes, complicated further by the characteristic- versus toxic-based listings. This State believes by placing the mixture and derived concepts into §262.11, it will be more apparent to the generator. (0217)

Response: The Agency has moved the discussion of mixtures to 40 CFR 262.13 and cross-referenced §261.3. Similarly, generators have the responsibility of being aware of when they generate a hazardous waste, including situations where they use a portable solvent distillation unit, and as a result, generate a listed waste residual. 
Comment: Industrial Generators have no objection to EPA identifying in 40 CFR §262.11(c) the factors a generator should consider in evaluating whether its waste is listed. We question, however, whether this rule should indicate that a delisting option is available. Although such an option should be available, since EPA delegated delistings to authorized states, in our experience delistings have been infeasible in most authorized states. Few states have the staff capable and available to oversee and rule on a delisting petition, and many states charge exorbitant fees for submission of a delisting petition, making delisting rarely economical. EPA should withdrawal the delisting program from the states and run the program itself, and in any event, not represent that delisting is a realistic option at this time. (0219)


Response:The Agency disagrees with the above commenter and continues to see the value in the inclusion of a delisting option. Even if this option is not commonly used, EPA continues to support the regions and states in addressing any delisting petitions they may receive. 
Comment:Vlll.8.2a Improvements to the existing hazardous waste determination regulations-We request as part of the improvements to the regulations, EPA consider maintaining the references in §262.11d to exclusions in §§261, 264, 265, 266, 267, 268, and 270. We also request that the Agency be more specific to where within these sections the exclusions are located. (0220)
Response: The current rules do not identify exclusions in §§261, 264, 265, 266, 267, 268, and 270 as much as state that if a waste is found to be hazardous, the generator must comply with all the applicable regulations in managing that wastes under the above parts of the RCRA regulations. At 40 CFR 262.11 (e), we will continue to cite that if the waste is determined to be hazardous, the generator must refer to parts 261, 264, 265, 266, 267, 268, and 273 of this chapter for other possible exclusions or restrictions pertaining to management of the specific waste.
Comment:80 FR 57939, column 1 (VIII., B., 4. & 5.)
Determining Whether a Waste Is a Listed Hazardous Waste & Determining Whether a Waste Is a Characteristic Hazardous Waste
The MPCA supports the proposed clarification of the procedures and allowed and suggested references for determining whether wastes are listed or characteristic for the reasons discussed by the EPA at 80 FR 57939-57942. The MPCA questions the apparent omission of the phrase `but not limited to' in the suggested references in the proposed 40 CFR 262.11(d)(2) for characteristics when it is included in the suggested references in the proposed 40 CFR 262.11(c) for listing. The MPCA particularly appreciates the proposed cautionary inclusion at the end 40 CFR 262.11(d)(2) regarding reliance on unapproved test methods for characteristic evaluation. (0232)
Response: The Agency appreciates the above comments. As part of the final rule we also have included the phrase `but not limited to' as part of 40 CFR 262.11(d)(2). 

Section 4.2.4 - Revisions for identifying characteristic hazardous waste

Comment: Regarding specific proposed changes to section 262.11(c) related to characteristic hazardous waste determinations and moving this information to section 262.11(d)  -  Section VIII.B.5., pages 57940-57942: Colorado agrees with the proposed language additions in the new section 262.11(d) related to identifying whether a solid waste exhibits any of the hazardous waste characteristics and the types of acceptable information a generator could use to determine if their solid waste is a characteristic hazardous waste. (0085)
Comment: WRPS is in favor of the proposed changes in B.3, B.4, and B.5. WRPS is in favor of the portions of this proposed text that address when to make a hazardous waste determination, whether a waste is a listed hazardous waste, and whether a waste is a characteristic hazardous waste. (0123)

Comment: VIII.B.5. Determining Whether a Waste Is a Characteristic Hazardous Waste
DEQ believes the proposed changes to 262.11(c) help to clarify what constitutes an accurate hazardous waste determination. (0182)
Comment: Proposal to provide further explanation in regulatory text about listed waste determinations  -  p. 57940
The department supports the clarifications and moving the listing requirements to better assist generators in making a determination, and in bringing all relevant information into this one location of the regulations for ease of reference. (0223)


Response: The Agency has no comment other than to thank the above commenters.
Comment: As part of the existing regulations a generator of solid waste must determine if the waste meets one of the four listed or four characteristic criteria and we believe this determination to be sufficient without further regulatory requirement. (0173)
Response: The changes made to identifying whether a solid waste is a listed and/or characteristic hazardous waste are clarifications meant to help generators in making an accurate hazardous waste determination so that they can better comply with the existing regulations. They are clarifications, and not new requirements. 
Comment: 17. Page 57940, Section VIII.B.5.: Utah recommends the Agency provide guidance regarding the determination for the characteristic of reactivity since there is no SW-846 method for reactivity. (0185)

Response: The reactivity regulations at 40 CFR 261.23 include eight related but somewhat different aspects of reactive waste hazards. When this regulation was developed in 1980, the Agency concluded that the tests available to identify wastes exhibiting these reactive hazardous properties were insufficiently inclusive. As the Agency was concerned about adopting tests that could fail to identify important hazards, the narrative definitions in the regulation were developed instead. 
One of the eight parts of this regulation does have a very specific and detailed regulatory definition. Sec. 261.23(a)(8) defines explosive materials as reactive hazardous waste when discarded by reference to several portions of the U.S. Department of Transportation regulations. Also, the Agency formerly provided guidance for sec. 261.23(a)(5), reactive cyanide and sulfide wastes. However on further examination of this guidance, the Agency found that it was, for the most part, not used as intended and was unreliable as it was used in practice; the Agency therefore withdrew the guidance in 1998. 
In the intervening 36 years since the reactivity regulations were promulgated, other organizations have developed much improved test methods for identifying many reactive hazards, and the Agency has added some of these tests to its analytical testing guidance (see methods 1030, 1040, and 1050). However, as these are not regulatory tests, their results can only be used as "knowledge" of the waste in making a hazardous waste determination. 
While the Agency could consider whether any more currently existing tests may be useable as guidance, they too would only be considered as a generator's knowledge of the waste for purposes of Part 262.11. Rulemaking would be required to adopt any of these tests as reliable and enforceable regulatory definitions. 
Comment: Columbia supports AGA's recommendation that EPA treat testing- and knowledge-based characteristic waste determination equally. Historically, the regulations treated a determination made pursuant to either method  --  testing or knowledge  --  equally. However, under the Proposed Rule, for those characteristics that include a specific test as part of the regulation, the results of that test would be "definitive for determining whether the waste is hazardous." Columbia endorses AGA's recommendation that EPA reconsider this approach and remove any distinction regarding the validity of waste determinations made pursuant to either method in the final rule. (0216)
Response: The Agency agrees with the above comments and has modified the final rule accordingly. 
Comment: Determination of Hazardous Waste Characteristics (40 CFR §262.11(d))

In proposed 40 CFR §262.11(d) EPA should delete the word "either" and replace the word "or" with "and/or" so as to read: "by following the procedures in paragraph (d)(1) and/or (2) of this section." This will clarify that a generator may use either testing or process knowledge, or a combination of both, to classify a wastestream. For example, it is common to rely on some analytical data, perhaps of similar wastes, and one's knowledge of the potential composition of the target wastestream to conclude that the target wastestream is or is not a hazardous waste due to a characteristic. It is also very common to rely first on process knowledge to determine what are the appropriate analytes (e.g., RCRA metals, VOCs, SVOCs, etc.), and then to conduct testing only on those analytes.

Industrial Generators also suggest that the word "applicable" be inserted before "methods" in proposed 40 CFR §262.11(d)(1) so as to read: "The person must test the waste according to the applicable methods set forth in Subpart C of 40 CFR Part 261 or according to an equivalent method approved by the administrator under 40 CFR 260.21 and in accordance with the following: . . ." By adding the word "applicable," this rule will make clear, for example, that if a waste is being evaluated for the toxicity characteristic, a Method 1311 test should be used, as opposed to one of the test methods that must be used to evaluate whether a waste is ignitable due to its flash point. (0219)
Response: The Agency made the above changes to the final rule. 

Comment: 80 FR 57939, column 1 (VIII., B., 4. & 5.)
Determining Whether a Waste Is a Listed Hazardous Waste & Determining Whether a Waste Is a Characteristic Hazardous Waste
The MPCA supports the proposed clarification of the procedures and allowed and suggested references for determining whether wastes are listed or characteristic for the reasons discussed by the EPA at 80 FR 57939-57942. The MPCA questions the apparent omission of the phrase `but not limited to' in the suggested references in the proposed 40 CFR 262.11(d)(2) for characteristics when it is included in the suggested references in the proposed 40 CFR 262.11(c) for listing. The MPCA particularly appreciates the proposed cautionary inclusion at the end 40 CFR 262.11(d)(2) regarding reliance on unapproved test methods for characteristic evaluation. (0232)Response: The Agency appreciates the above comments. As part of the final rule we also have included the phrase `but not limited to' as part of 40 CFR 262.11(d)(2). 

Section 4.2.4.1 - Testing


Comment: This change would clarify the requirement that hazardous waste determinations be made in the laboratory at the process outflow, in the laboratory apparatus effluent, or on the research bench. Multiple determinations may be necessary if the effluent or outflow changes during this process.(0135)

Response: If several points of generation occur as part of a laboratory process, then we agree with the above commenter that multiple determinations may be necessary if the effluent or outflow changes during this process.
Comment: Section VIII.B.5 (Page 57941): One State questioned can a statement of non-hazardous waste determination be the Safety Data Sheet (SDS)? This State does not expect the SQGs with simple hazardous waste streams spending a lot of time writing a statement they determined all their other waste is not hazardous. (0217)
Response: The comment is no longer applicable. The Agency is not moving forward with requiring documentation of non-hazardous waste determinations. 

Comment: One State believes that waste determinations should be made by analytical testing every two to three years, even when the generator believes that the waste stream is consistent. This State believes that writing a list of specifications for when to re-test/re-determine the nature of a waste stream would be an impossibly complex undertaking, and that generators would not read or follow the inevitably highly detailed document that could be produced. Instead, this State believes that waste determinations should be good for a limited period of time (two or three years) and that new waste determinations should be made and documented at regular intervals (0217)
Response: The Agency understands the concerns of the above commenter but is not adopting this commenter's recommendation. The Agency believes a more effective approach is any time the generator changes either chemical feedstocks or processes since either one or both will most likely result in a new waste that requires a hazardous waste determination.
Comment: Further, if research labs are required to conduct their own analytical testing, such an approach will impose a significant financial burden and potentially generate questions about compliance with grant spending. (0218)

Response: Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination.
Comment: A similar degree of flexibility should be continued, as is the status quo, when determining whether a waste exhibits one or more hazardous characteristics identified in subpart C of 40 C.F.R. part 261. The proposal would require generators to test the waste according to the methods set forth in subpart C of 40 C.F.R. part 261 or according to "an equivalent method approved by the Administrator under 40 C.F.R. 260.21" along with additional requirements. 80 Fed. Reg. 57,992. Imposition of these limited types of determinations is unnecessary. While testing may be appropriate in some circumstances, a generator's knowledge of the materials and process is often sufficient to make hazardous waste determinations. The proposal does not provide or describe evidence suggesting that the current system has led to unreasonable risks to human health and the environment and simply places unnecessary burdens on the industry without measurable benefits. Before imposing such burdens, EPA should further analyze the waste determination process and evaluate whether evidence demonstrates that requiring the use of testing and EPA approved methods is necessary to prevent harm. The proposal fails to do so. (0241)
Response: Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination. Because of the potential confusion surrounding the use of testing and knowledge in the proposed rule, the Agency, as part of the final rule, has moved the discussion associated with use of knowledge before testing to emphasize this aspect of waste determinations since most generators use knowledge in making a hazardous waste determination. 
Comment:EPA is also for all practical purposes is eliminating the ability to use process knowledge for waste determinations and require actual testing (e.g., TCLP test). This again is costly change that will add no benefit to waste determinations that the characteristics of the material is known. (0245)
Response: Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination. Because of the potential confusion surrounding the use of testing and knowledge in the proposed rule, the Agency, as part of the final rule, has moved the discussion associated with use of knowledge before testing to emphasize this aspect of waste determinations since most generators use knowledge in making a hazardous waste determination. 
Comment: Page 57940: 
5. Determining Whether a Waste Is a Characteristic Hazardous Waste
a. Use of testing to identify waste exhibiting a hazardous characteristic.

DC supports the clarification this change will provide. (0248)
Response: The agency appreciates the above comments.
Comment: While Virginia Tech understands EPA's intent with this proposal, we believe the requirements are functional and financial burdensome and will have negative effect. This proposal seems to be a slippery slope. How much analytical/ test results would be enough?

What is the generator to do with conflicting analytical/ test results? An example would be a waste stream of animal specimen in formaldehyde. By definition, the waste is considered spent, but testing via Raman Spectrometer list material as formaldehyde. Does the generator assign waste code U122 due to the Raman Spectrometer results or not due to the definition?

There is also factor of cost and fair playing field. Since Virginia Tech's EHS has Raman Spectrometer and FTIR spectrometer, could Virginia Tech be required to test all waste streams via the equipment? In the Waste minimization certification [40 CFR 262.27], it uses the wording "economically practicable." Would a similar wording/meaning apply here? If so, how?

To meet the requirements in the proposal, it is estimated that Virginia Tech would have to double current staffing of 6 (4 full time / 2 part time employees) to 12 to properly manage and test every waste stream generated by the university. (0284)
Response: Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination. Because of the potential confusion surrounding the use of testing and knowledge in the proposed rule, the Agency, as part of the final rule, has moved the discussion associated with use of knowledge before testing to emphasize this aspect of waste determinations since most generators use knowledge in making a hazardous waste determination. However, situations do occur where testing of a waste is necessary. 


Section 4.2.4.2 - Generator knowledge

Comment: In §262.11(d)(2), EPA has added the statement that use of testing other than that set forth in 40 CFR 260.21 (or EPA-approved equivalent) does not provide "definitive results". The use of this phrase is unclear, as EPA has long insisted that analytical results are a preferable method of waste characterization [Footnote 4: See, e.g., "Waste Analysis at Facilities that Generate, Treat, Store, and Dispose of Hazardous Wastes  -  Final; A Guidance Manual", 4/1/15, RCRA Online 51451. [http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/5e2f8bd7cb5680d885257e610055247b!OpenDocument]]. What is "definitive" in terms of adequacy of generator knowledge, whether knowledge of the generating process, knowledge of the materials used in production, or analysis using test kits or another method, is determined on a waste-specific basis. We recommend that EPA's discussion of acceptable knowledge be consistent between paragraphs (c) and (d)(2). (0078)
Response: Based on consideration of this comment and other comments received, the Agency has modified the discussion on use of generator knowledge and testing to explain that both have an equal basis in making hazardous waste determinations. In the context of using alternative tests, the Agency does not define the term "definitive," but the modified discussion in preamble provides further guidance and consistency on the use of generator knowledge when using alternative test methods.
Comment: In §262.11(b), imposing a requirement to determine if the waste is excluded under 40 CFR 261.4 is burdensome. Presently, the regulations state that the generator "should" make this determination [Footnote 3: Current 40 CFR 262.11(a).], but do not make this determination mandatory. Some of the exclusions given in 40 CFR 261.4 are detailed and involve determinations generators may not be prepared to make. Generators may prefer to manage their waste as hazardous without searching for an exemption. For instance, a generator may not wish to determine that arsenical-treated wood is not a hazardous waste for any other reason than failing the TCLP for D004-D017 and send it to a hazardous waste TSD facility. The optional nature of this step in waste determination should be retained.

o In §262.11(c) and (d)(2), EPA has adopted the terminology "acceptable knowledge" that it uses in its waste analysis guidance. This term is not defined and is thus somewhat confusing. The term "acceptable knowledge" is only described along with the qualifier "includes, but is not limited to". The term begs the question, "What is unacceptable knowledge?" Ideally, when using "knowledge" to designate, that "knowledge" should simply be sufficient to substitute for direct testing of the waste. In the case of listed waste, "knowledge" should be sufficient to accurately identify the process generating the waste (F and K lists) or the commercial chemical product being discarded (P and U lists). Adding the term "acceptable knowledge" merely adds confusion as to what knowledge is usable. (0078)
Response: Generators may always elect not to take advantage of a particular exclusion and manage their waste as hazardous. We have made that statement in the past as well as in the preamble to this proposed and final rule.
The commenter asks "What is unacceptable knowledge?" The Agency would view guessing as "unacceptable." The Agency also views using resources that do not contain information about the process that produced the waste or the chemicals in the waste as unacceptable. It is also unacceptable for generators to simply assume their waste is non-hazardous until told otherwise by the relevant regulatory agency. In using the phrase "acceptable knowledge", the Agency intends that knowledge-based determinations be based on relevant and reliable (i.e., verifiable) information from any source that indicates, to a greater or lesser degree, that the waste is either hazardous or non-hazardous under part 261 subpart C and D regulations, and that such information is organized or presented in a logical way that illustrates how it supports the generator's conclusions. Such determinations are inherently done on a case-by-case basis. In some cases, this may be clear and straightforward and in others more complex or uncertain, depending on the waste and the availability of reliable and relevant information. Similarly, the Agency cannot a priori determine how much information is "enough", as this too is case-specific. As discussed above, the Agency's intent is that hazardous waste determinations, regardless of their basis, be accurate and result in appropriate management of the waste under RCRA.
[Note: In using knowledge of a waste to make a hazardous waste determination, the Agency would also offer the advice that generators review and account for information they may identify that may tend to refute their conclusions. A conclusion that considers and honestly weighs adverse information is much more likely to be accepted by the Agency than is a conclusion based on data carefully selected to support the conclusion and which ignores contrary information that may be more convincing. ] 
Comment: USWAG also has concerns that EPA has discounted the use of generator knowledge of the waste in light of the materials or process used as a basis for determining whether or not a waste is hazardous. Historically, the RCRA regulations treated determinations based on generator knowledge as equivalent to testing the waste. Under the proposal rule, however, test results are considered definitive for assessing waste, while no such regulatory weight is provide for generator knowledge. Id. at 57940. USWAG strongly urges EPA to remove the distinction between the use of generator knowledge and testing. EPA's proposal could encourage many generators to undertake unnecessary testing to eliminate the regulatory uncertainty associated with relying on generator knowledge. This could impose significant costs and unnecessary burdens on generators that could otherwise rely on their knowledge to support hazardous waste determinations. (0093)
Response: The Agency disagrees with the above comment. Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination. Because of the potential confusion surrounding the use of testing and knowledge in the proposed rule, the Agency, as part of the final rule, has moved the discussion associated with use of knowledge before testing to emphasize this aspect of waste determinations since most generators use knowledge in making a hazardous waste determination. 
Comment: We would further request that the Agency clarify that the use of "generator knowledge" would continue to be allowed to make a waste characterization which includes but is not limited to:

o Safety Data Sheets or similar documents;
o A thorough process description, including data on all raw materials used in the process (i.e. process knowledge); and or
o Other forms of detailed documentation. (0127)
Response: The above are examples of, but not inclusive, of knowledge that may be used to support a hazardous waste determination.
Comment: We know from experience that we can achieve greater safety and compliance when an institution issues guidance to laboratory workers and other generators so they are informed about aspects of chemical waste such as the characteristics, the regulatory listing, safe collection and storage, what can be mixed together safely, and labeling. This is followed up with procedures for final waste determination, performed by highly trained personnel such as environmental health and safety staff either at the time the waste is removed from the laboratory or in a central accumulation area. (0135)
Response: The Agency agrees with the above comment. 
Comment: With the flexibility to make the hazardous waste determination in the laboratory, in an on-site central accumulation area or on-site TSDF, the individual in the laboratory generating the waste does not need to be familiar with the RCRA hazardous waste determination process. (0135)

Response: The above comment assumes that procedures are in place to make a hazardous waste determination at the point of generation by someone besides the individual in the laboratory generating the waste, such as the environment and services department. Without those procedures and without knowing more facts in a specific situation, the Agency would not agree with this comment in all situations.
Comment: The proposed rule also appears to weaken the use of generator knowledge for making hazardous waste determination by requiring that the basis of that knowledge is documented. This is unnecessarily burdensome, and the EPA already has the authority to challenge generator knowledge without the added recordkeeping. (0135) 
Response: The Agency is not weakening the use of generator knowledge in making hazardous waste determinations. Nothing has changed between the previous regulations and those being finalized today in generators being able to use knowledge as the basis for their determinations. 
Comment: We know from experience that we can achieve greater safety and compliance when an institution issues guidance to laboratory workers and other generators so they are informed about aspects of chemical waste such as the characteristics, the regulatory listing, safe collection and storage, what can be mixed together safely, and labeling. This is followed up with procedures for final waste determination, performed by highly trained personnel such as environmental health and safety staff either at the time the waste is removed from the laboratory or in a central accumulation area. (0135)
Response: No response necessary. 
Comment: MDU acknowledges the importance of characterizing a waste to determine proper storage and disposal. Under the proposed rule, test results are considered definitive for assessing waste, while no regulatory weight is given to generator knowledge. MDU believes that EPA is discounting a generator's knowledge and a fundamental principle of the existing RCRA generator regulations. (0149)
Response: The Agency is not weakening the use of generator knowledge in making hazardous waste determinations. Nothing has changed between the previous regulations and those being finalized today in generators being able to use knowledge as the basis for their determinations. 
Comment: We suggest that EPA reconsider that aspect of the proposed section 262.11(e) that imposes additional (and unnecessary) recordkeeping requirements on the use of generator knowledge for making hazardous waste determinations by adding the requirement to keep, "records which explain the knowledge basis for the generator's determination, as described at 40 CPR 262.I I( d)(2)" (emphasis added). Generator knowledge (knowledge of the materials or processes) may be the most used method for making hazardous waste determinations. It is appropriate and efficient. Also, EPA has the authority to challenge generator knowledge without imposing burdensome recordkeeping requirements that provide no corresponding environmental benefit. (0167)
Response: The Agency disagrees with the above comment. If the basis of the waste determination is not documented, then how is one to determine if an accurate hazardous waste determination has been made? Keeping the information in one's head will not do any good if that person is not present during an inspection or left the company.
Comment: Additionally, there is a concern about the requirement to have individuals not as experienced in waste determinations making the determination in the laboratory. This is particularly concerning if EPA is anticipating students and general staff making the determination, rather than the institution's safety professionals. Although EPA has indicated that this burden may be eliminated by following Subpart K, not all academic institutions as this has not been adopted by all states and nor may this apply to facilities that are using trainees (0170)
Response: Laboratories may always use safety professionals in making hazardous waste determinations at the point of generation in lieu of students and general staff. 
Comment: While institutions are not opposed to the training requirements, there is a concern that individuals not experienced in the nuances of waste identification may improperly identify the waste. It has been my experience that both the generator (i.e. the individual that has created the waste) and a safety professional are required to accurately identify the waste. The consequences of improperly identified wastes are significant. Thus, this change not only places a significant burden on the institutions to train individuals, but places the institutions at significant risk. (0170)
Response: Nothing has changed in this rule about hazardous waste determinations being made at the point of generation. Laboratories need not identify the specific RCRA waste codes that go on the container as much as initiate the process to identify those codes. However, we expect laboratories to also identify and mark and label the risks associated with the waste at the point of generation too. 
Comment: Additional guidance is needed on what constitutes valid generator knowledge for determining reactivity. (0185)
Response: The reactivity regulations at 40 CFR 261.23 include eight related but somewhat different aspects of reactive waste hazards. When this regulation was developed in 1980, the Agency concluded that the tests available to identify wastes exhibiting these reactive hazardous properties were insufficiently inclusive. As the Agency was concerned about adopting tests that could fail to identify important hazards, the narrative definitions in the regulation were developed instead. 
One of the eight parts of this regulation does have a very specific and detailed regulatory definition. Sec. 261.23(a)(8) defines explosive materials as reactive hazardous waste when discarded by reference to several portions of the U.S. Department of Transportation regulations. Also, the Agency formerly provided guidance for sec. 261.23(a)(5), reactive cyanide and sulfide wastes. However on further examination of this guidance, the Agency found that it was, for the most part, not used as intended and was unreliable as it was used in practice; the Agency therefore withdrew the guidance in 1998. 
In the intervening 36 years since the reactivity regulations were promulgated, other organizations have developed much improved test methods for identifying many reactive hazards, and the Agency has added some of these tests to its analytical testing guidance (see methods 1030, 1040, and 1050). However, as these are not regulatory tests, their results can only be used as "knowledge" of the waste in making a hazardous waste determination. 
While the Agency could consider whether any more currently existing tests may be useable as guidance, they too would only be considered knowledge of the waste for purposes of Part 262.11. Rulemaking would be required to adopt any of these tests as reliable and enforceable regulatory definitions. 
Comment: 4. FPA Supports Inclusion of Assurances in the Generator Rules that "Knowledge" Can Be Used "In Lieu" of an EPA-Approved Testing Procedure to Identify "Characteristic Hazardous Waste Streams."

EPA proposes to add in new 262. 11(d), that would provide that even if the current regulations specifies the use of a test to determine if a material is a characteristic hazardous waste, generators may apply their own knowledge to make a characteristic hazardous waste determination, including considerations regarding the origin of the waste, production processes, feedstocks, chemical composition and other relevant information. The preamble also confirms that an EPA-unapproved test method that supports that the identification is considered part of the generator's knowledge. Drawing from state guidance, EPA clarifies that if such assessments are used, it is important to maintain documentation of how the waste was sampled to obtain a representative sample, analytic results, and other parameters of the analysis and a rationale, if appropriate, for why a "full suite" of analyses were unnecessary to perform. FPA appreciates this guidance and the inclusion of a provision in §262.11(d) which states clearly that a generator's "knowledge" can be used as an alternative to the referenced test method in the RCRA regulations to determine characteristic hazardous waste.

The rule also would provide that "acceptable knowledge that may be used in making an accurate determination whether the waste is listed includes, but is not limited to, waste origin, composition, the process producing the waste, feedstock, an and other information. In addition, EPA also proposes to list in new 262.11the types of acceptable information that a generator can consider in determining if a solid waste is a hazardous waste by referring to the listing determinations under Subpart D of 40 CFR 261 and specific situations in which Appendix C testing is necessary. If that information suggests it is a listed waste, and the generator believes it is not hazardous waste, then the generator may file a delisting petition under §260.20-22

FPA generally agrees with most of these proposed changes and clarifications, particularly those with respect to the use of "knowledge" of processes and chemicals where Appendix C testing would be laborious, costly and simply unnecessary because the residual has been well characterized in the literature or common practice. We understand and support the proposed amendments of the generator rules to clarify that records of such determinations should be kept, the records should be available for inspection during reasonable periods of operation, and further, that such records should not be destroyed during enforcement proceedings. On the other hand, FPA questions why if such determinations are sufficient, EPA proposes to create a legal presumption that only Appendix C testing is sufficient to rebut an allegation of a violation by an inspector. Therefore we believe that EPA should delete this provision because Appendix C testing may not be necessary and is inconsistent with the rest of the proposal. However, if the presumption for Appendix C testing is retained, the final rulemaking should provide additional explanation of whether any other information such as supplier statements, MSDS, other technical support documents (TSD), or process information can also be submitted in defense of the waste stream characterization. (0240)
Response: The Agency appreciates the above comments. However, regarding the last comment regarding the statement, "EPA proposes to create a legal presumption that only Appendix C testing is sufficient to rebut an allegation of a violation by an inspector." Nothing has changed between the previous rule and this rule. Generators may always use knowledge in making a hazardous waste determination. As part of the final rule, we have modified the regulatory text to move the use of generator knowledge before the use of testing to make this clear. 
Comment: EPA should retain flexibility for generators to rely on their knowledge of materials and processes when making determinations that waste is not hazardous.

Response: The Agency is not weakening the use of generator knowledge in making hazardous waste determinations. Nothing has changed between the previous regulations and those being finalized today in generators being able to use knowledge as the basis for their determinations. 

Comment: The proposed rule would identify non-exclusive categories of knowledge that EPA finds acceptable to apply when making a hazardous waste determination. Specifically, the proposed revisions to Section 262.11 state that:

Acceptable knowledge that may be used in making an accurate determination as to whether the waste is listed includes, but is not limited to, waste origin, composition, the process producing the waste, feedstock and other relevant information.

80 Fed. Reg. 57,992 (emphasis added). PCA supports the continued flexibility represented by the proposal. It is important that the final version of the rule retains language clarifying that the categories of knowledge identified are examples and not exclusive. Cement manufacturers and regulators need the flexibility to apply additional categories of knowledge that may be unique to their processes when making hazardous waste determinations. (0241)
Response: The agency agrees with the above comments and has made changes to the final rule to reflect these comments. 
Comment: Page 57940-41:
b. Use of knowledge to identify waste exhibiting a hazardous characteristic.

DC supports the clarification this change will provide. (0248)
Comment: In addition, the City applauds EPA's diligence in providing and codifying examples of what is acceptable to document the use of "generator knowledge" to determine whether a waste is considered hazardous under the regulations. (0257)
Response: The Agency appreciates the above support. 

Section 4.2.4.3 - Other

Comment: MDU recommends that EPA remove the distinction between test results and generator knowledge, and limit record keeping requirements to waste streams that are actually determined to be hazardous. (0149)
Response: The Agency has modified the regulatory text to give equal weight to both use of generator knowledge and testing in making a hazardous waste determination. Similarly, the Agency is not finalizing the requirement that generators document their non-hazardous waste determinations. 
Comment: R. Specifically state that a representative sample is required under 40CFR§262.11(c)1. Consider rewriting 40CFR§262.11(c)1 to state that testing a representative sample of the waste according to the methods set forth in subpart C of 40 CFR part 261, or according to an equivalent method approved by the Administrator under 40 CFR part 260.21. Alternatively, include a footnote regarding what constitutes representative sampling. Since a hazardous secondary material has the same hazards as if it were called a hazardous waste, the verified recycler should be subject to the same generator sampling requirements. (0206)
Response: The Agency believes we are responsive to the above comments in the final rule.
Comment: Page 57941: 
c. Proposal on using process knowledge.

DC supports the clarification this change will provide. (0248)
Response: The Agency appreciates the above comment.
Comment: Also, in the proposed regulatory text for hazardous waste determinations, ACA also recommends amending the language "(1) The person must test the waste according to the methods set forth in subpart C of 40 CFR part 261..." to "The person must test the waste according to the applicable methods set forth...." [Footnote 15: 80 Fed. Reg. at 57992.] (0262)
Response: The Agency agrees with this comment and has made the necessary change. 


Section 4.2.5 - Maintaining records for all hazardous waste determinations

Introduction
The Agency is not finalizing the requirement that generators maintain records of their non-hazardous waste determinations. However, the Agency will continue to recommend that generators document their non-hazardous waste determinations as a best management practice, particularly in situations where wastes contain known hazardous chemical attributes that could be mistaken for a hazardous waste.
The objective of this proposed change was to foster a change in generator behavior related to their waste determination processes and procedures. By requiring such documentation, generators would need to further consider why the solid waste was not a hazardous waste and provide a rationale in writing. 
The Agency has concluded that many of the arguments put forth below, both in favor of and against the proposal, have some measure of validity. However, the Agency strongly recommends that as a best management practice, generators document their non-hazardous waste determinations, particularly in situations where the waste may display the attributes of a hazardous waste and where staff turnover may cause a worker to question the contents of a container. Most importantly, when situations warrant, inspectors have the authority to ask that a hazardous waste determination be performed by the generator in the absence of any documentation and the attributes of the waste suggest a potential problem.
Numerous organizations voiced disapproval of the Agency's proposal to require SQGs and LQGs to document their non-hazardous waste determinations. Forty-seven commenters urged EPA to remove the requirement to maintain documents for determinations on non-hazardous wastes. Commenters included the following organizations: 0077, 0085,0097, 0098, 0099, 0103, 0105, 0106, 0113, 0117, 0120, 0121, 0123, 0126, 0129, 0131, 0133, 0139, 0149, 0159, 0166, 0167, 0168, 0177, 0180, 0182, 0188, 0187, 0190, 0192, 0200, 0201, 0208, 0211, 0212, 0220, 0222, 0224, 0228, 0231, 0238, 0240, 0241, 0242, 0245, 0255, 0257 and 0282. 
Reasons included, but were not limited to, the following themes: 
The Agency has no legal authority to require such documentation because the Subtitle C regulations do not regulate non-hazardous wastes (0168, 0182, 0192, 0200, 0220, 0222, 0241, 0262). These commenters are incorrect. The Agency has the authority under sections 3007 and 2002 of RCRA to require such records be kept, but instead has chosen not to finalize our use of such authority in this case and rather follow the alternative approach discussed below. 
Specifically, RCRA section 3007 allows us to gather information about any material when we have reason to believe that it may be a solid waste and possibly a hazardous waste within the meaning of RCRA section 1004(5). A generator will not know definitively whether a waste that has potential to be hazardous is hazardous or non-hazardous unless it identifies the waste and documents that identification, even if the waste turns out to be non-hazardous. Moreover, RCRA section 2002 also gives EPA authority to issue regulations necessary to carry out the purposes of RCRA. The intent of the proposed requirement to document non-hazardous waste determinations is to provide basic information to EPA about the potentially hazardous nature of the waste that is generated (even if it is ultimately determined to be non-hazardous) in order to ensure its proper management, enable regulatory agencies to monitor compliance adequately and to ensure appropriate environmental protection. 
There is no compelling reason to require such documentation because generators have a very strong incentive to ensure they have accurately classified their wastes, given that failure to do so can result in significant penalties for the illegal management of hazardous waste (0077, 0097, 0098, 0109, 0135, 0136, 0140, 0149, 0154, 0192, 0201, 0205, 0219, 0220, 0225, 0227, 0233, 0255, 0260, 0284, 0285). Three commenters (0121, 0192, 0219) believe that the record information proposed is readily determinable or common knowledge, and that making a record of such is an unnecessary burden. The Agency does not disagree with these arguments, but in reality, not all generators are motivated to comply in trying to make an accurate hazardous waste determination, given the high rate of non-compliance with making accurate hazardous waste determinations. 
The Agency failed to account for generators that generate numerous waste streams every day, such as the retail sector and academic and industrial laboratories (0077, 0078, 0129, 0168, 0177, 0192, 0227, 0233, 0245, 0260, 0286). The Agency was aware of and did identify several sectors (including these) in the proposal where this requirement had the potential to be more challenging, given the high number of waste streams generated. Also, the Agency sought comment on how best to address this potential burden. However, as stated above, the Agency is not finalizing this provision.
The rule would create so much regulatory uncertainty that the only way to protect themselves against non-compliance would be to document every waste stream generated. 
The Agency did receive a number of comments supporting the proposal to require SQGs and LQGs to document their non-hazardous waste determinations (0082, 0108, 0145, 0217, 0229, 0232, 0240, 0243, 0264). Comments identified supporting documentation included the following themes: 
(1) Accurate waste determinations are difficult for regulators to verify if records are not kept, particularly for unknown waste that reasonably may display the attributes of a hazardous waste but for which there is no written evaluation showing it as non-hazardous;
(2) Unknown wastes must be assumed to be hazardous and managed accordingly unless and until evaluated to be otherwise; 
(3) Recordkeeping costs are overstated. Businesses spend time and effort identifying and purchasing certain materials based on their characteristics so they should already have information about the nature of these materials; 
(4) Lack of documentation of waste determinations leads to confusion when knowledge is lost during staff turnover and must be re-created by the replacement staff; and
(5) Most generators already keep this information as part of best practices. 
This support bolsters the Agency's conclusion that more work is needed to ensure generators make accurate hazardous waste determinations. At this time, in lieu of requiring such documentation, the Agency is considering initiating a dialogue with industry and states to identify the root causes of this problem and identify potential solutions. Such solutions may include establishing best management processes and practices, along with the possible development of generic decision tools or other technical assistance information that can assist generators with the process of evaluating whether the solid waste they have generated is a hazardous waste.
A few commenters also stated that most generators already keep this information because their state requires it or because they realize the importance of systematically evaluating the waste streams they generate to ensure they are managing it properly. As stated in preamble, the Agency supports this non-hazardous waste determination recordkeeping practice by industry and recommends it as a best management practice.

Other comments and responses include the following:
Comment: One commenter (0264) recommends putting the records of determinations online and available to the public.
Response: States and EPA already have that information (i.e., solid wastes found to be hazardous wastes) from LQGs through the Biennial Report (BR). To some extent, the Agency already has that information from SQGs as well through the BR. 
Comment: Five commenters (0183, 0208, 0219, 0225, 0240) note that codifying the parameters that constitute adequate documentation is not necessary - the generator should be responsible for deciding the minimal contents of a satisfactory written record.
Response: The Agency has found that that is not always the case, as witnessed by the high rate of non-compliance. This finding bolsters the Agency's conclusion that more work is needed to ensure generators make accurate hazardous waste determinations. At this time, in lieu of requiring non-hazardous waste determination documentation, the Agency is considering initiating a dialogue with industry and states to identify the root causes of this problem and identify potential solutions. Such solutions may include establishing best management processes and practices, along with the possible development of generic decision tools or other technical assistance information that can assist generators with the process of evaluating whether the solid waste they have generated is a hazardous waste.
Comment: One commenter (0132) suggests clarifying that maintaining records for negative hazardous waste determinations is necessary only when generators suspect that material is hazardous. 
Response: The Agency agrees with this commenter and recommends that generators document their non-hazardous waste determinations as a best management practice, particularly in situations where wastes contain known hazardous chemical attributes that could be mistaken for a hazardous waste.
Comment: One commenter (0243) recommends developing a one page checklist for a generator to complete to be accepted by EPA as appropriate documentation.
Response: The Agency agrees and will look into the feasibility of developing a one page checklist, particularly if industry and the states enter into a dialogue to identify the root causes of this problem and identify potential solutions ( such as a checklist).
Comment: Update the rule to make it clear that it does not apply to wastes with no potential to be hazardous (0128). For example, make exclusions for obviously non-hazardous waste like office paper waste or food waste (0120, 0154, 0201, 0208, 0221, 0222, 0245, 0280).
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: If the proposed waste determination recordkeeping requirements are enacted, CESQGs should not be exempt (0082, 0189, 0217, 0264).
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: CESQGs do not currently maintain this documentation and the added burden would provide no benefit (0131, 0168, 0188, 0225, 0241).
Response: The Agency is not changing the recordkeeping requirements for CESQGs/VSQGs in this rule although it does recommend documenting their hazardous waste determinations as a best management practice.
Comment: The wording of 262.11(e) needs clarification, as the vague language in the regulation gives inspectors the discretion to require records for practically any solid waste they observe (0092, 0128). 
Response: Under the existing and final regulations, when situations warrant, inspectors have the authority to ask that a hazardous waste determination be performed by the generator in the absence of any documentation and the attributes of the waste suggest a potential problem.
Comment: Generators need to understand that if they allow a third party to make the determination, that documentation needs to be kept by the generator because the generator is ultimately responsible for the determination (0185 and 0232).
Response: The Agency agrees with this comment.
Comment: Its unclear where the agency draws the line between those types of solid waste that "clearly have no potential to be hazardous" and those that may have potential but only under certain limited conditions (0200). 
Response: Generators are responsible for making solid and hazardous waste determinations even under certain limited conditions. 
Comment: EPA must reevaluate the proposed requirements to maintain the separation between Subtitle D and Subtitle C (0224, 0242, 0249).
Response: Generators are responsible for making solid and hazardous waste determinations, including situations where it is possible to have comingled Subtitle D municipal solid wastes with Subtitle C hazardous wastes.
Comment: It is not clear in the preamble if EPA meant to include documenting hazardous waste determinations for commercial chemical products not listed in 261.33 or that do not have the `potential' to exhibit a hazardous waste characteristic (0256).
Response: The Agency is not finalizing the requirement that generators maintain records of their non-hazardous waste determinations. However, generators have a responsibility to make solid and hazardous waste determinations of commercial chemical products not listed in 261.33 that may be discarded, particularly if they have the potential to exhibit a hazardous characteristic.. 
Comment: The list of items that "must" be included in each record of a hazardous or non-hazardous waste determination is unwarranted, especially for retail sector (0168).
Response:The Agency is not finalizing the requirement that generators maintain records of their non-hazardous waste determinations. However, generators have a responsibility to make solid and hazardous waste determinations of any discarded commercial chemical products and other potential hazardous wastes generated by retailers. 
Comment: The challenges generators face in waste determinations stem from the ambiguity associated with the definition of solid waste, hazardous waste listings, and hazardous waste characteristics rather than existing regulatory language in 40 CFR 262 (0077 and 0107).Response: The Agency disagrees with these commenters. Yes, there are challenges in making solid and hazardous waste determinations and sometimes such determinations are difficult. But the listings and characteristic regulations are quite clear as to what is required.
Comment: If the documentation requirements are kept as proposed, provide clear protocols for determining when a waste has no potential to be hazardous and the type of documentation that is sufficient to do so (0093 and 0120).
Response:The Agency is not finalizing the requirement that generators maintain records of their non-hazardous waste determinations. However, the Agency is looking into the feasibility of entering into a dialogue with industry on this issue, and one potential solution may be developing protocols to help generators in making better, more accurate hazardous waste determinations. 
Comment: Once a facility has deemed a waste hazardous, the required container, label, date, and record keeping should be all the documentation that is necessary for a comprehensive compliance inspection (0104).
Response: Except for when RCRA waste codes must be applied, the Agency would agree that once a facility has deemed a waste hazardous, the required container, label, date, and the hazardous waste determination record keeping should be all the documentation that is necessary for a comprehensive compliance inspection (for that container). 
Comment: EPA should specify how validity evaluations of data will be made, and proposes that "as necessary to document the generator's determination" be inserted into the fifth sentence of § 262.11 (e) (0116).
Response:There are a wide range of validated testing protocols that can be used to understand the properties of materials, including wastes. Besides EPA SW846 methods, there exist U.S. Department of Transportation (DOT) tests which support implementation of its Hazardous Materials Transport regulatory requirements that may have applicability. Other organizations also have developed, validated and/or use such tests include the U.N. Transport of Dangerous Goods guidance, the Organization for Economic Co-operation and Development (OECD), or the U.N. guidance on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). Third-party testing organizations such as ASTM or ANSI may also have developed and validated tests that may produce relevant results. In choosing to use such a test to evaluate his/her waste, the generator needs to choose a test that will produce information related to the RCRA hazardous characteristic narrative definition; for this, the generator may need to solicit expert advice. 
The Agency also sees no need to add regulatory text for this issue.
Comment: A new paragraph should be added under §262.11 to include the required records for hazardous waste determination of VSQGs as follows: "A VSQG shall maintain sufficient documentation to demonstrate its status as a VSGQ by maintaining all applicable records used to calculate the acute, non-acute, and residue cleanup." (0165).
Response: The Agency has chosen to maintain the existing framework for VSQGs and not require documentation of their hazardous waste determinations. 
Comment: The regulatory language should clearly identify the scope of the requirement so regulated entities can make waste determinations with more certainty (0188).
Response: The Agency believes the expansion of the regulatory text and discussion in the preamble should allow a generator to make a waste determination with more certainty. 

Section 4.2.5.1 - Scope of requirement

Comment: In §262.11(e), it is not clear what EPA desires as a "record" that identifies a discarded material as a solid waste. Records maintained under RCRA generally deal with materials that are already considered to be solid waste. Does EPA intend, for instance, for generators to keep records that show that the material in question was "discarded", and then evaluated to determine if it was abandoned, to be recycled, inherently waste-like, or a military munition? How would such information be authoritatively generated? (0078)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: VIII.B. Waste determinations. HDOH strongly supports the requirement to document waste determinations. As noted in the preamble, correct waste determinations are critical to defining generator category and applicable regulations for waste management. HDOH believes that CESQGs should also be required to document their waste determinations. CESQGs must make waste determinations. They must count their waste generation every month to ensure that they are in fact correctly defining themselves as CESQGs, and this is impossible to do without first making a correct waste determination on their output (see section VIII.A./ XIII.(A.3.) above). If a site is truly a CESQG, it probably will have a very small and consistent number of waste streams. As noted on p. 57942 in the preamble, there have been cases where facility inspections reveal that an SQG or LQG has incorrectly classified itself as a CESQG based on its failure to make accurate waste determinations. This can lead to mismanagement of a large amount of hazardous waste and the facility being held in violation of 40 CFR part 270 permitting requirements, because it has not met the requirements for conditional exemption as an SQG or LQG. The potential for harm to human health and environment based on incorrect determination of generator category is large. The corresponding health and environmental benefits of requiring CESQGs to document their waste determinations could be quite large, but are not readily measurable. (0082)

Response: At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination. 
Comment: Additionally, if EPA retains the documentation requirement, USWAG strongly urges the agency to provide clear protocols for determining when a waste has no potential to be hazardous and the type of documentation that is sufficient to do so. It is unclear what steps a facility must take to provide sufficient documentation because EPA explains that a "statement describing what the basis of that knowledge was ... will most likely be sufficient." Id. at 57944. This statement is ambiguous and does not provide adequate guidance for actually meeting the documentation requirement..... 
and to (1) waste streams actually determined to be hazardous, and (2) wastes generated from industrial processes; (0093)
Response: The Agency assumes that the commenter is discussing the documentation associated with non-hazardous waste determinations. If so, then the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. However, if the commenter is referring to documentation associated with hazardous waste determinations, the Agency has expanded in both preamble and regulatory text about what documentation is appropriate. 
Comment: What constitutes "documentation"? Hazardous Waste generators are already required to keep records sufficient to complete biennial reports and/or affirm their generator status. For non-RCRA wastes that are processed through the SAA-CAA cycle and shipped off-site, manifests and/or other shipping documents should be sufficient. This would not, however, account for material that doesn't go through that cycle- and an additional, burdensome procedure would be necessary. (0097)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Once a facility has deemed a waste hazardous, the required container, label, date and record keeping should be all the documentation that is necessary for a comprehensive RCRA compliance inspection. (0104)
Response: The Agency agrees with the above commenter provided the container label also identifies the applicable RCRA waste code(s).
Comment: At a minimum, there needs to be some narrowing of the obligation so that it does not apply to all waste determinations such as office trash where the potential for a hazardous waste classification is not a real concern. 
CIANJ recommends that the solid waste recordkeeping requirement needs to be removed (further discussion of this recommendation is in Issue 6, below). If it is not removed then the requirement needs to be refined to exclude those types of wastes in which the agency is not interested in regulating. (0120)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Codifying the parameters that constitute adequate documentation of a determination is an inferior approach to allowing for discretion of the inspector and generator. We contend that agency guidance is a better approach that provides greater flexibility in the case of both whether a solid waste is a hazardous waste and documentation of the information needed to satisfy an Agency inspector. (0121)
Response: Making a solid and hazardous waste determination is a site-specific, waste-specific situation. Generators are free to use whatever information is necessary to support their waste determinations, whether it be generator knowledge or the result of testing. For example, once a facility has deemed a waste hazardous, the required container, label, RCRA waste codes, date and record keeping should be all the documentation that is necessary for a comprehensive RCRA compliance inspection.

Comment: If, as the preamble suggests, EPA intends to limit this requirement to focus on wastes that have the potential to be hazardous, then the final rule must reflect that intent clearly and explicitly. Without an appropriate and effective limitation, the recordkeeping requirement should be expressly limited to maintaining documentation of determinations of hazardous waste. (0129)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Dow Comment: EPA should not require facilities to maintain documentation for solid wastes that are not hazardous waste. EPA should not require SQGs and LQGs to prepare and retain documentation when a solid waste is determined not to be a hazardous waste. Further, EPA should explicitly state in this rule that the waste determination documentation is not required for the many hazardous secondary materials that are excluded from the definition of solid waste, or for the many solid or hazardous wastes that are exempted by rule from the requirement to conduct a hazardous waste determination or to document that determination. (0131)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: HWI comment: We agree that records should be maintained from negative results from hazardous waste determinations. However, we suggest clarifying that this is limited to times when the generators suspect that material is hazardous. Our members are concerned that they will be required to maintain records for negative hazardous waste determinations for materials that are obviously not hazardous. (0132)

Response: Although the Agency saw benefits to requiring generators document their non-hazardous waste determinations, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: If the intent is that this provision be specific to laboratories, shops, and other areas that traditionally produce hazardous wastes, there will still be significant negative impacts. (0135)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: MDU recommends that EPA remove the distinction between test results and generator knowledge, and limit record keeping requirements to waste streams that are actually determined to be hazardous. (0149)
Response: The Agency disagrees with the comment that we remove the distinction between test results and generator knowledge since both approaches to making a hazardous waste determination are so different  -  but necessary. Regarding the second comment, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: ....more definition is needed on what materials EPA would like these determinations to be performed on.
a. Nowhere in the proposed rule is a list provided of materials that are exempt from the determination process.
i. Ex. Food waste, office waste, etc.
b. Determinations are made daily about materials that are obviously not regulated by RCRA, are these to be recorded and maintained? (0154)
Response: No, materials that are obviously not regulated by RCRA do not have to be recorded and maintained. Similarly, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations.
Comment: The Agency proposes to expand the recordkeeping requirements for large and small quantity generators. EPA proposes to require these generators to document and maintain records of determinations of all materials identified as a solid waste and a hazardous waste. The generators are to maintain records of the waste properties, the results of any sampling and analysis that was performed, the relevancy and validity of the tests selected/performed as well as documentation describing the process generating the waste, process reference material consulted and process knowledge employed in determining that a waste is or is not hazardous. This new requirement will significantly increase the documentation compiled and retained by generators for hazardous waste determinations. EPA apparently intends to require generators to keep the same detailed records of their determinations that certain wastes are not hazardous wastes. 

Waste Management appreciates the language in the preamble stating, "The Agency is not interested in entities that generate solid wastes that clearly have no potential to be hazardous such as food waste, restroom waste, or paper products"; however, the narrow examples fail to clarify which non-hazardous wastes require recordkeeping and which do not. Furthermore, it would be onerous to require generators to maintain the same detailed records proposed to be required for hazardous waste determinations for a potentially large universe of non-hazardous wastes. WM recommends the Agency either delete this provision or significantly narrow it to a smaller universe of non-hazardous waste determinations. We further recommend that EPA streamline the recordkeeping requirements for non-hazardous waste determinations. (0159)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Rule: §262.11. This section does not specify what records are required for the determination of VSQG category. The recordkeeping requirements of VSQGs are not addressed under §262.13 either. GSEGNA suggests that a new paragraph be added under §262.11 to include the required records for hazardous waste determination of VSQGs as follows: "A VSQG shall maintain sufficient documentation to demonstrate its status as a VSGQ by maintaining all applicable records used to calculate the acute, non-acute, and residue cleanup." (0165)
Response: There are no recordkeeping requirements for VSQGs. At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination.
Comment: [A]ll potential entities, with the exception of households, must determine whether they generate a solid waste as defined by § 261.2 for purposes of the existing RCRA hazardous waste regulations. Solid wastes under § 261.2 include spent materials, sludges, by-products, scrap metal, and commercial chemical products (CCPs) that are discarded.
....

Scrap metal, as defined in § 261.1(c)(6), is bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering, which when worn or superfluous can be recycled.

80 Fed. Reg. at 57,943-57,944.

This preamble language has generated confusion regarding whether, under the proposal, steel mills would need to document the solid waste status of all scrap metal, including home scrap generated by the mill. Sections 261.2 and 261.4(a)(13) of the existing RCRA regulations exclude from the definition of solid waste "excluded scrap metal" which is defined to include processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal that is being recycled. Accordingly, waste determinations should not be required for home scrap, and we believe that it is apparent that EPA does not intend to require records of solid waste determinations for "excluded scrap metal," the predominant type of scrap metal at steel mills.

That said, the omission in the preamble of any discussion of "excluded scrap metal" has created some confusion in the industry. Accordingly, to minimize such confusion in the future, SSINA requests EPA to clarify explicitly in the final rule that records of "solid waste" determinations are not required for "excluded scrap metal." (0167)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes. Therefore, records need not be maintained for excluded scrap metal.

Comment: 5.1.3 The Proposed Recordkeeping Requirement for Non-Hazardous Waste Determinations Is Impermissibly Vague

EPA has stated that, under the proposed rule, "documentation will not be required for entities that do not generate a solid waste, as defined by § 261.2." See 80 Fed. Reg. at 57,943; see also id. at 57,992 (proposed to be codified at 40 C.F.R. § 262.11) ("A person who generates a solid waste, as defined in 40 CFR 261.2, must make an accurate determination of whether that waste is a hazardous waste"). As noted above, however, the regulations explicitly state that the definition of solid waste in Section 261.2 "applies only to wastes that are also hazardous." See 40 C.F.R. § 261.1(b)(1) (emphasis added). Thus, it would appear that the proposed documentation requirement would apply only to hazardous wastes. However, this seems inconsistent with EPA's stated goal of requiring "generators ... to keep records and documentation of their waste determinations, including determinations that a solid waste is not hazardous." See 80 Fed. Reg. at 57,943.

In short, EPA's proposal to require documentation for non-hazardous waste determinations is vague and confusing. Perhaps the Agency means to require documentation of non-hazardous waste determinations for some category of material other than "solid waste as defined by § 261.2." However, we have no way of knowing what that other category might be. In the absence of a clear statement of what EPA means to cover, we have no way of commenting meaningfully. Inasmuch as we and the rest of the public have not been provided adequate notice of the Agency's intent and an opportunity to comment on it, EPA's proposal is deficient as a matter of law under the APA and cannot be finalized. (0168)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: 5.2.3 The Proposed Mandatory Elements of a Hazardous or Non-Hazardous Waste Determination Record Are Unclear, Unnecessary, and Unworkable in the Retail Industry

The proposed rule includes a long laundry list of items that "must" be included in each record of a hazardous or non-hazardous waste determination. See 80 Fed. Reg. at 57,993 (proposed to be codified at 40 C.F.R. § 262.11(e)). These items are inappropriate and unwarranted, especially in the context of the retail sector, as discussed below:

o "Records that identify a material as a solid waste, as defined by 40 CFR 261.2" and "records supporting [the] solid .. waste determination"  -  As an initial matter, it is unclear why such a record is necessary. If a facility is classifying a material as a waste, there should be no need to explain or document the basis for such classification. Moreover, it is unclear what such a record would consist of. Information about the facility where the material is sent might be sufficient, for example, if that facility is a landfill or incinerator. However, if the receiving facility is a waste-to-energy facility, reclamation facility, or other recycling facility, would it also be necessary to include additional information about the material and the recycling process to demonstrate that the material is not excluded from the definition of solid waste? And, what happens if a single material may be sent to different facilities? Would the generator need records addressing each receiving facility and update the records whenever a new facility is used or an old facility is no longer used?

The proposal does not appear to require records to support determinations that particular materials are not solid wastes, but just in case EPA is contemplating such a requirement, we note that the Agency would not have any legal authority to require recordkeeping for non-wastes (just as it does not have authority to require recordkeeping for non-hazardous wastes, as discussed above), and that the scope of any such requirement would virtually be infinite. EPA apparently does intend that records would be required to support determinations that non-hazardous materials are solid wastes. However, as discussed above, there is no regulatory definition of solid waste for non-hazardous materials, so such a requirement would be meaningless.

o "Records consulted in order to determine the process by which the waste was generated"  -  This proposed requirement is baffling. Generators of wastes necessarily are closely involved in the waste generation process, and do not need to "consult" records to determine how the wastes are generated. So, it is unclear what records this requirement would mandate. Perhaps EPA means to require records so that inspectors and enforcement personnel can understand the waste generation process. However, this would require development of an entirely new record that the generator does not need to make its own hazardous or non-hazardous waste determination, thereby increasing substantially the costs of the records.

This requirement is particularly confusing in the context of retailers. The "process" by which products may become wastes are extremely varied, potentially including damage, expiration, obsolescence, defect, recall, and other situations. It is unclear what records a retailer might "consult" or otherwise provide to explain the generation process (except perhaps in the case of a recall, where a recall notice might suffice). Moreover, because there are so many ways that a product might become a waste, would a retailer have to keep records of each "process" for each SKU, and update the records each time a product becomes a waste for a different reason (e.g., if a recall notice is issued)?

o "Results of any tests, sampling, or waste analyses; [and] records documenting the tests, sampling, and analytical methods used and demonstrating the validity and relevance of such tests" -- Retailers will rarely, if ever, be sampling and testing any products that may become solid wastes. Given how many products they normally carry, such sampling and testing would be an impossible burden. Retailers may, however, rely in whole or in part on testing performed by manufacturers or others. In such instances, the retailers will generally not have access to records of the type specified under this requirement. EPA should clarify that if the generator does not have access to this type of information and/or did not review or rely upon such information in making its hazardous (or non-hazardous) waste determination, the information need not be included in the record.

o "The composition of the waste, and the properties of the waste"  -  The proposed requirement to include in the record the "composition" and "properties" of the waste is extremely ambiguous. Retailers generally only have limited information about the composition and properties of any products that may become wastes, based on such things as product labels and Safety Data Sheets, where available. While manufacturers and others may have more detailed information about the composition and properties of the products, retailers will generally not have access to such information, in part because much of that information may be proprietary. EPA should clarify that generators need only include in their records information about composition and properties that they have access to and that they reviewed and relied upon in making their hazardous (or non-hazardous) waste determinations.

o "The knowledge basis for the generator's determination"  -  As noted above, retailers necessarily generally base their hazardous waste determinations on the limited information they are able to obtain from manufacturers (e.g., Safety Data Sheets) or on judgments made by third parties using proprietary product information that they are able to obtain from manufacturers under strict confidentiality agreements (and using the third parties' proprietary methods for evaluating such information). It is essential that such manufacturer-supplied information and/or the bottom-line conclusions of the third-parties be sufficient to serve as the "knowledge" basis for retailer waste determinations.

While we understand EPA's desire to provide additional guidance on what should be in hazardous waste determination records, the rigid and highly prescriptive approach taken in the proposal is simply not workable. This is especially true to the extent that the Agency appears to have based its proposal on traditional generators in manufacturing industries, without considering the special circumstances of the retail sector, as discussed above. (0168)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: 5.2.7 Expansion of the Recordkeeping Requirement for Hazardous and Non-Hazardous Waste Determinations to CESQGs Cannot Be Justified

In the preamble to the proposed rule, EPA asks for comment on "potentially requiring CESQGs to maintain documentation of their hazardous waste determinations, including their non-hazardous waste determinations." See 80 Fed. Reg. at 57,945. As an initial matter, the comments above about why it would be unlawful and inappropriate to require LQGs and SQGs to prepare and maintain records of their non-hazardous waste determinations apply with equal force in the context of CESQGs. Similarly, the comments above regarding the problems with EPA's proposed changes to the hazardous waste determination and recordkeeping requirements apply equally for CESQGs.

The expansion of these proposals to CESQGs, however, would be even more unwarranted, given the extremely high costs of doing so, and the marginal potential for any environmental benefit. EPA has estimated that the number of retail CESQG facilities is about 30% higher than the number of retail SQGs. One might thus reasonably expect that the costs of recordkeeping for the retail CESQGs might be on the same order as costs for the retail SQGs. As discussed above, such costs are exorbitant. And, in the case of CESQGs, the benefits are likely to be far lower, since CESQGs, by definition, generate much smaller quantities of hazardous wastes. Indeed, EPA has estimated that SQGs generate 1.54 to 2.6 tons annually on average, while CESQGs generate 0.2 to 0.31 tons per year on average. See Economic Assessment at 2-24, Exhibit 2-11. Thus, recordkeeping for CESQGs would provide additional information on proper waste classifications for a much smaller amount of wastes than recordkeeping for SQGs. Given that the costs of SQG recordkeeping cannot be justified by the small benefit (as discussed above), the similar costs of CESQG recordkeeping clearly cannot be justified for much smaller benefits. (0168)
Response: There are no recordkeeping requirements for VSQGs. At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination.
Comment: VIII.B.6. Documenting and Maintaining Records for Hazardous Waste Determinations
DEQ does not believe that requiring a facility to document and maintain records for their waste determinations addresses the issue of facilities failing to make hazardous waste determinations. Facilities that make hazardous waste determinations typically have documentation demonstrating that these wastes are non-hazardous, and those facilities that fail to properly determine their hazardous wastes are already out of compliance with regulations. DEQ believes this regulation will lead to additional violations for facilities correctly managing their hazardous wastes, while failing to increase rates of accurate hazardous waste determinations, thereby providing no benefit to the facility or the regulatory agency. Additionally, DEQ is of the opinion that the proposed rules create a possibility for overreaching regulation on wastes that are non-hazardous. DEQ recommends that only documentation for those wastes that are hazardous be maintained. (0182)
Response: To some extent, the Agency agrees with this commenter. At this time, in lieu of requiring such documentation, the Agency is considering initiating a dialogue with industry and states to identify the root causes of this problem and identify potential solutions. Such solutions may include establishing best management processes and practices, along with the possible development of generic decision tools or other technical assistance information that can assist generators with the process of evaluating whether the solid waste they have generated is a hazardous waste.

Comment: IME opposes this proposed amendment to the regulations as it currently is drafted. Without a much narrower requirement that includes specific and appropriate limitations that expand on the description in the NPRM preamble, it would be impracticable if not impossible to comply with this proposal. The regulatory language should clearly identify the scope of the requirement so that regulated entities can make waste determinations with a greater degree of certainty. [Footnote 12: We suspect that this proposal reflects what EPA inspectors already are demanding during inspections. In our experience, inspectors frequently will not accept waste determinations based on generator knowledge and will formally request what amounts to a waste characterization analysis of waste the generator knows to be non-hazardous. A number of our member companies, faced with the ongoing prospect of "no documentation, no credit," and continued rejections of their knowledge-based determinations, already prepare and retain documentation on all waste streams at their facilities. This does not negate our comment above, however. The language of the proposed regulation, as drafted, is over-broad and the maintenance of non-hazardous waste stream records would quickly become unmanageable. As noted above, it is essential, if EPA truly means to limit applicability of the rule to "potentially hazardous" waste, that exclusions for common non-hazardous waste streams be included in the regulation.] (0188)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Extending Recordkeeping Requirements to CESQGs (p. 57945)

EPA has requested comment on whether the above recordkeeping provisions proposed for LQGs and SQGs should also be applied to CESQGs or "very small quantity generators." [Footnote 15: EPA proposes in this NPRM to rename "conditionally exempt small quantity generators" as "very small quantity generators" ("VSQGs), to be consistent with other generator categories. IME supports this proposal. Our comments from this point forward refer to such generators as "CESQGs/VSQGs."]

IME does not believe the recordkeeping proposals should be expanded to include CESQGs/VSQGs. The rationale behind establishing CESQGs/VSQGs in the first place was the acknowledgement that the potential for harm to human health and the environment from the generation of minimal amounts of hazardous waste did not support the stringent onsite management requirements imposed on larger quantity generators. The program has been successful in minimizing any potential harm while providing CESQGs/VSQGs with a reasonable, safe, and cost-effective means of managing the miniscule quantity of hazardous waste they generate. We encourage EPA to focus on the more important aspects of this rulemaking rather than chipping away at the flexibility that has made the CESQG/VSQG exemption effective. (0188)
Response: There are no recordkeeping requirements for VSQGs. At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination.
Comment: Proposed rule language requires that waste determinations be kept for all waste, including that which is determined to be non-hazardous. Non-hazardous waste is not hazardous waste, "falls out" of the hazardous waste rules and recordkeeping for non-hazardous waste should not be regulated by hazardous waste rules. (0190) 
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The proposed regulation includes numerous prescriptive activities that SQGs and LQGs must perform to generate waste determination documentation for each hazardous waste the site generates. The proposed recordkeeping requirements, in essence, will push SQGs and LQGs to having a site-specific Waste Analysis Plan (WAP) that follows EPA's expansive WAP guidance. This is because SQGs and LQGs will face so much compliance uncertainty meeting the numerous §262.11(e) requirements, and the best way to defend against an enforcement action regarding waste determination documentation would be to have a detailed WAP.

For instance, consider the proposed mandatory requirement that SQGs and LQGs must document the "validity" of all sampling and analytical methods used. EPA elaborates that "validity" means "quality assurance/quality control" when used in this context. See 80 FR 57942/col. 1. The only way a generator could confidently comply with this quality assurance/quality control requirement for its sampling and analysis would be to have a WAP that includes a quality assurance/quality control section that addresses the use of duplicate samples, equipment blanks, field blanks, and trip blanks, and the associated quality assessments, such as audits and quality assurances, corrective actions and reports to management.

The rule's preamble in support of the proposed §262.11(e) recordkeeping requirements includes no mention of the important role commercial TSDFs play in assisting SQGs and LQGs in making hazardous waste determinations. The preamble does not discuss the "waste profile" forms that are currently universally used by commercial TSDFs to summarize sampling results and document each hazardous waste determination. The established use of waste profiles makes unnecessary the proposed extensive recordkeeping requirements.

Industrial Generators acknowledge the importance of making accurate hazardous waste determinations, and that existing regulations already require generators to maintain certain waste determination records, such as laboratory test results. The proposed new recordkeeping regulation, however, is too prescriptive and burdensome, and therefore, should not be adopted. Instead, EPA should solicit input from various stakeholders, such as commercial TSDFs, on appropriate waste determination recordkeeping requirements and then propose a rulemaking at a later time based on that dialogue.

Nonetheless, if EPA insists on adopting a waste determination documentation rule, the following changes, at a minimum, should be made to the information requirements in the proposed rule. (Emphasis added.) As written, it would appear that a generator must include all of these types of information for every waste determination it makes. Because this requirement also requires records supporting a generator's process knowledge, and proposed 40 CFR §262.11(d)(2) identifies many different types of information that a generator may use as a basis for its process knowledge, together the list of information that would have to be documented under this proposed rule is quite extensive.

Generators are properly selective in the information they rely upon to make a waste determination on a particular wastestream. Sometimes a generator will need extensive information regarding the composition, test results, process information, etc., but other times a waste determination can be made on very little information simply because the waste is obviously hazardous or non-hazardous. To require the records to include all of the specified information, or even some of this specified information, would cause generators, in many cases, to go through the exercise of preparing the required yet unnecessary information.

 Overly-Broad Scope of the Waste Determination Documentation (40 CFR §262.11(e))
As noted above, Industrial Generators recommend that EPA, in a separate rulemaking, consider further the appropriate level of detail and scope of the waste determination documentation it should require of generators. If EPA, nonetheless, decides to adopt waste determination documentation rules in this rulemaking, the scope should be narrowed as explained below. (0219)

Response:  The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: My comments are general. One is pointed to the requirement for generators to document that wastes are non-hazardous. This is a requirement beyond the scope of EPA's RCRA regulations. It is also unpractical since the universe for this requirement has not been defined and can be interpreted in numerous ways. So it does not help EPA or the generators but instead leaves a nebulous area for disagreement. EPA should either remove this requirement entirely, list the types of non-hazardous wastes that might be considered under this rule, or try to define the universe for the rule in that order.

Not only is this requirement onerous for the generator, but also difficult for EPA to enforce. The fact that it is published indicates that EPA has issues with how generators designate their waste streams. EPA should focus on those particular instances and not use such a general requirement such as this to try to net the cases that have caused them concern. The rule as written has the potential to bring about legal actions and neither the EPA nor the regulated community benefits from that. In my opinion, it is beyond the scope of RCRA and therefore should not be included in this rule making process at all. But more focused rules that address specific EPA concerns might make sense while staying within the scope of RCRA. (0222)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Documentation of hazardous waste determination
:: We will need to have documentation of non-hazardous solid waste streams, explaining why it is not a hazardous waste.
:: It was not written with laboratories in mind.
:: If we don't like it, we should be opting into Subpart K, which gives relief from this requirement
:: If we have ideas for a better solution, offer it. (0227)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: In addition, the proposed regulatory language in paragraph (e) requires that the records "must" contain the "results of any tests, sampling, or waste analyses; records documenting the tests, sampling, and analytical methods used and demonstrating the validity and relevance of such tests; records consulted in order to determine the process by which the waste was generated, the composition of the waste, and the properties of the waste; and records which explain the knowledge basis for the generator's determination, as described at 40 CFR 262.11(d)(2)." We suggest the Agency change the word "must" to "may" because the information available to make these determinations will vary from one waste type to another. There is no reason to require all of this information. Once a single test shows that a material is a hazardous waste, it becomes a hazardous waste. Retaining records of any additional information is simply not needed.  (0255)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

We disagree with the suggestion that the Agency change the word "must" to "may" because the information available to make these determinations will vary from one waste type to another. There is no ambiguity involved. Generators may use knowledge of their waste or test their waste, but they must make an accurate waste determination.
Comment: Earlier in the preamble, the Agency states that "documentation will not be required for entities that do not generate a solid waste, as defined by § 261.2, or that generate a solid waste that has been excluded or exempted from RCRA Subtitle C controls." 80 FR 57,943. Our major concern is that the proposed regulatory language can easily be interpreted as much broader than the stated intent in the preamble.

CRWI understands the need to retain certain records for hazardous waste determinations. The burden of making a hazardous waste determination always falls to the generator. If the generator classifies a material as a solid waste and not a hazardous waste, they should not be required to keep a record of that determination. The generator may choose to keep those records but should not be required to do so. If that material is later found to be hazardous, then the generator would be in error and subject to enforcement. We believe that keeping records of solid waste determinations does nothing more than requiring an increased amount of recordkeeping without any additional protection for the environment. The proposed regulatory language in paragraph 262.11(e) should be modified to only require maintaining records of hazardous waste determinations. (0255)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Documenting waste determinations

The City has some concerns regarding the Agency's proposal to require small and large-quantity generators ("SQGs" and "LQGs") to document waste determinations when a solid waste is found not to be a hazardous waste and to maintain these records for at least three years from the date the waste was last generated. Without a clear and far-reaching exemption from such documentation for wastes that clearly would not be hazardous, this proposal would be overly burdensome to the regulated community. Furthermore, even with several of the documentation exemptions contemplated by EPA in the preamble (e.g. solid waste that is excluded or exempted from RCRA Subtitle C controls and restroom waste), inspectors may feel obligated to request information on how the regulated community determined that the waste met such exemptions; this requirement would ultimately result in the regulated community's needing to document all waste justifications to avoid potential enforcement actions. (0257)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 2. The Scope of EPA's Waste Determination Requirement is Impermissibly Vague

In promulgating regulations, EPA is required to undertake a level of specificity that would be sufficient to put the public on notice of what the regulations require or prohibit. See Freeman United Coal Min. Co. v. Federal Mine Safety and Health Review Com'n, 108 F.3d 358, 361 - 62 (D.C. Cir. 1997) (regulations will be found to satisfy the due process clause of the U.S. Constitution "so long as they are sufficiently specific that a reasonably prudent person, familiar with the conditions the regulations are meant to address and the objectives the regulations are meant to achieve, would have fair warning of what the regulations require"); F.T.C. v. Atl. Richfield Co., 567 F.2d 96, 103 (D.C. Cir. 1977) ("[T]here is the need for a clear and definitive interpretation of all agency rules so that the parties upon whom the rules will have an impact will have adequate and proper notice concerning the agency's intentions"). While some ambiguity is permissible in order to allow flexibility in the application of a regulation, the regulations must be "sufficiently specific" to put regulated parties on notice of the conduct they prohibit. See Freeman, 108 F.3d at 362. The Proposed Rule is impermissibly vague in a number of important respects and does not meet the requirements for notice under the Due Process Clause of the United States Constitution.

First, it is unclear from the text of the Proposed Rule whether EPA is proposing that generators must document and maintain waste determinations for waste that is not a solid waste under RCRA. The text of the Proposed Rule requires small quantity generators ("SQGs") and large quantity generators ("LQGs") to "maintain records supporting its solid and hazardous waste determinations." 80 Fed. Reg. at 57,993 (revising 40 C.F.R. § 262.11(e)) (emphasis added). This language can be read to suggest that generators must not only document that certain items are solid wastes but also keep records showing that other items are not solid wastes. In the preamble, however, EPA states that "documentation will not be required for entities that do not generate a solid waste, as defined by §261.2, or that generate a solid waste that has been excluded or exempted from RCRA Subtitle C controls." 80 Fed. Reg. at 57,943. This apparent clarification is itself ambiguous and in any event does not appear in the regulatory text. The regulation itself should clearly state that the Proposed Waste Determination Requirement does not require a determination that an item is not a solid waste.

EPA similarly does not adequately explain how the Proposed Waste Determination Requirement applies to materials that are currently excluded or exempted from the regulatory definitions of solid and hazardous waste. Section 262.11 applies to "a person who generates a solid waste, as defined in 40 CFR 261.2," and that section in turn defines "solid waste" as a "discarded material that is not excluded under § 261.4(a) . . . ." 80 Fed. Reg. at 57,992 (proposing revised section 262.11); 40 C.F.R. § 261.2. This suggests that the waste determination requirement does not apply to persons who are generating materials that are excluded by § 261.4(a). However, the waste determination requirement itself requires persons to determine if the "solid waste is excluded from regulation under 40 CFR 261.4," which suggests the exact opposite.

It is also unclear whether wastes that are exempt from the existing hazardous waste determination requirements are subject to the Proposed Waste Determination Requirement. See, e.g., 40 C.F.R. § 261.6(a)(3) (exempting hazardous wastes that are recycled from the hazardous waste determination requirement). We expect that EPA did not intend to require generators to maintain waste determinations for these materials since EPA has already determined that they do not pose a significant environmental threat, but it would be helpful if EPA should clarify its position on this issue.

Finally, in the preamble to the Proposed Rule, EPA indicates that the requirement to maintain records for wastes determined to be non-hazardous is "not intend[ed] . . . to apply to those generators that generate a solid waste that clearly has no potential to be hazardous." 80 Fed. Reg. at 57,942 n.65. Instead, according to EPA, "[t]he focus of this provision is on solid wastes that have the potential to be hazardous wastes." Id. at 57,944. EPA provides examples of solid wastes that "clearly have no potential to be hazardous," such as food waste, restroom waste, or paper products. Id. Additionally, EPA lists various industries that "are not meant to be impacted by this provision," including lawyers, accountants, business offices, religious organizations, governmental organizations, and engineering and architectural firms. Id.

EPA's proposed regulatory text, however, does not mention these potential limitations. Moreover, EPA makes no attempt to explain or define what it means by "solid wastes that have the potential to be hazardous wastes" and/or "solid waste that clearly has no potential to be hazardous." This vague and ambiguous language simply provides no means by which regulated entities can determine whether they are covered by the Proposed Rule, and would surely lead to inconsistent enforcement and litigation.

If EPA is serious about exempting particular products or industries from the Proposed Waste Determination Requirement, it should do so in the language of the rule itself, and should make that exclusion available to all consumer products. The Department of Transportation ("DOT") already recognizes that consumer products present a lesser risk to "health, safety, and property," and has balanced these minimal risks by imposing less stringent packaging requirements for consumer products. See 49 C.F.R. § 173.144, 173.153. DOT's longstanding interpretation of its consumer commodity exception applies to products and wastes alike. [Footnote 2; See Letter from Charles E. Betts, Chief Standards Development, Office of Hazardous Materials Standards dated Sep. 22, 2010, PHMSA Interpretation #10-0093R, available at http://www.phmsa.dot.gov/portal/site/PHMSA/menuitem.6f23687cf7b00b0f22e4c6962d9c8789/?vgnextoid=22b834025ed5b210VgnVCM1000001ecb7898RCRD&vgnextchannel=aa8cd3c1af814110VgnVCM1000009ed07898RCRD (stating that Consumer Commodities exceptions apply when transported to a disposal facility) (attached hereto as Attachment 2).] According to DOT, these consumer commodities "present[] a limited hazard during transportation due to [their] form, quantity and packaging." 49 C.F.R. § 173.144. EPA should consider adopting a similar exemption here for the same reasons, and because, as described below, EPA's new requirement would impose an undue burden on the industries that manage consumer goods with little if any environmental benefit. (0260)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: So would a LQG university that generates similar wastes listed above have to document and maintain records for hazardous waste determinations?

What would be the requirements for "co-generators" (operator/land owner and/or contractor)?

To meet the requirements in the proposal, it is estimated that Virginia Tech would have to triple current staffing of 5 (5 full time employee) to 15 to properly document and inspect all waste streams and areas that generate waste.

Response: Generators must keep records only for those solid wastes found to be hazardous wastes. Therefore, the commenter's waste determination recordkeeping requirements do not change with today's rule. Second, regarding co-generator responsibilities, documenting solid and hazardous waste determinations would be based on the generator/co-generator contractual arrangements.   Where such an arrangement exists, the Agency will look to the designated party to perform the generator responsibilities. EPA, however, reserves the right to enforce against any of the parties if the generator requirements are not adequately met provided such enforcement is equitable and in the public interest. In EPA's view, the party in the best position to assume the generator responsibilities should normally take on these responsibilities on behalf of the other parties in the arrangement.
Section 4.2.5.2 - Burden


Comment: As importantly, there is no compelling reason to require such documentation. Waste generators have a very strong incentive to ensure they have accurately classified their wastes, given that failure to do so can result in significant penalties for the illegal management of hazardous waste. When a generator relies on its knowledge instead of analytic testing to make a nonhazardous waste determination, it does so with the understanding that an enforcement authority could sample the waste and, if found to be hazardous, subject the generator to enforcement. Consequently, there already exists more than adequate authority to ensure that generator knowledge is applied accurately and generators are understandably cautious and conservative when using generator knowledge to classify their wastes. Requiring documentation of all nonhazardous waste determinations merely creates an additional recordkeeping requirement that will impose an unnecessary burden at numerous facilities generating wastes that are clearly nonhazardous. (0077)
*Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, the Agency believes this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: o Also in §262.11(e), the express requirement to keep records for solid waste which ultimately is not determined to be a hazardous waste is burdensome and not authorized under RCRA. In essence, generators are being required to "prove the negative" for commonly generated non-hazardous waste streams, even reaching to restroom and kitchen wastes and office supplies. RCRA 3001(b)(1) does not authorize the regulation of non-hazardous solid waste under Subtitle C once it is determined not to be hazardous. We also suspect that EPA and authorized states do not have the time or resources to verify the accuracy of non-hazardous waste determinations except in instances where waste managed as non-hazardous by the generator subsequently is determined to be hazardous. The speculative nature of this circumstance is insufficient to mandate a broad requirement to maintain records for all waste determinations when the waste is determined not to be hazardous. (0078)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: We agree with EPA that "the burden of documenting their hazardous waste determination should not be that costly for each CESQG." If CESQGs are already making waste determinations in a proper manner, the additional burden of documenting these determinations should be minimal. In cases where determinations are not currently being made, the rule requiring documentation will improve compliance. CESQGs using generator knowledge to make a determination will be more likely to following the specific procedures and definitions in 40 CFR part 261 if they are required to keep a record of their reasoning, and this will lead to more correct waste determinations. More correct waste determinations will lead to more correct determinations of generator category. (0082)
Response: At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination.
Comment: Individually these proposals will be burdensome and confusing. Taken in concert and carried to their logical (or illogical end) they would require:

o Every employee (from President to Custodian), visitor, outside contractor, or in my instance a rotating population of 20,000 undergraduate and graduate students be fully versed in RCRA requirements.

OR

o A platoon of RCRA qualified individuals move about interfering with operations to make flash point tests, inspecting all trash cans and subjecting any half empty can of Red Bull to TCLP analysis.

o Either of these producing documentation which would require a full time archivist. (0097)
*Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, the Agency believes this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: b. We strongly oppose the recordkeeping requirement that a site must keep all hazardous waste characterization records, even for known nonhazardous waste streams, for the life of the site. This would be unduly burdensome from an administrative standpoint and serves no benefit to the environment. The manner in which this proposal is written would require records for all non process related waste streams that are known to be intrinsically nonhazardous. DTE Energy endorses USWAG's recommendation that if EPA insists on maintaining this requirement, EPA should revise the language to limit it to only include waste streams that are actually determined to be hazardous and only wastes from an actual industrial process. We also urge EPA to limit the record retention to no longer than 3 years. This is in line with other RCRA record retention requirements.(0098)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Doing so would place an unfair regulatory burden on hazardous waste generators while all other public and private non-hazardous waste generators who would not be required to keep similar records. (0101)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: It is quite possible that requiring a facility to keep documentation of non-hazardous waste determinations would be deemed arbitrary and capricious under judicial review. Doing so would place an unfair regulatory burden on hazardous waste generators while all other public and private non-hazardous waste generators who would not be required to keep similar records. (0104)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The proposed new recordkeeping regulation, however, is too prescriptive and burdensome. It should not be adopted as proposed. 
REGFORM does not support the proposal to require the documentation of determinations that a solid waste is not a hazardous waste. This is highly burdensome for facilities that generate multiple solid wastes that in most cases are not hazardous wastes. (0106)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Specifically, the changes around waste determination, associated required documentation and record keeping for these determinations would cause undue burden on the research higher education communities. (0109)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: GP does not support a new requirement to document determinations that a solid waste is not a hazardous waste. This could be extremely burdensome at facilities that generate multiple solid wastes that usually are not hazardous wastes. (0113)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The expansion of the expanded recordkeeping requirements to wastes that are not subject to the program is not an insignificant burden. (0120)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: To require documentation of these commonly known facts creates an unnecessary paperwork burden. Some of the record information proposed by the agency is readily determinable or common knowledge, making a record of such an unnecessary burden. (0121)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: New Recordkeeping Requirements

The Chamber strongly opposes the proposed requirement that facilities document all non-hazardous determinations. As an initial matter, we agree with other commenters that EPA has likely far underestimated the cost of this proposed new recordkeeping requirement. Moreover, EPA has not articulated how maintaining documentation of non-hazardous waste determinations has benefits that exceed its costs. The agency spends much time explaining in the preamble the current rate of non-compliance with RCRA hazardous waste provisions, but utterly fails to explain how requiring recordkeeping for non-hazardous determinations will improve that overall non-compliance.

This proposal significantly broadens the scope of businesses that would be subject to new recordkeeping requirements which necessarily add costs, paperwork and administrative burden. EPA correctly notes that the first step in determining the scope of businesses that must comply with this provision is to evaluate whether a facility generates "solid waste" as defined in 40 CFR 261.2. 80 Fed. Reg. 57943. This analysis in and of itself is complex, difficult and not made any easier by the proposed rule. EPA then asserts that this requirement is intended to focus "on solid wastes that have the potential to be hazardous wastes." 80 Fed. Reg. 57944. However, EPA goes on to admit that "There are literally hundreds of thousands of entities" that generate solid waste that has no potential of being hazardous, but fails to include any language in the proposed rule that would exclude these entities from the recordkeeping requirement. 80 Fed. Reg. 57944. (0129)


Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
.
Comment: However, it is an added burden to maintain documentation on solid waste streams that are not hazardous waste. This could be extremely burdensome at certain types of facilities that generate multiple solid wastes that in most cases are not hazardous wastes. This is especially burdensome to those R&D Facilities that produce multiple formulations into prototype products. (0131)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Each of these requirements will place additional burden on laboratory personnel and cause changes in research, delays in completion of experiments and findings, and create the need for significant additional training and staffing.

In addition, this would remove the environmental health and safety professional from involvement in the formal determination at a central accumulation area. 
The added costs for unnecessary analytical testing and for training virtually every individual at a sector institution that disposes of trash will severely impact budgets at our college and universities (0135)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: When coupled with the clarification to the rule that SQG and LQG must maintain records of all hazardous waste determinations, including where the waste is found not hazardous, educational institutions would be faced with an extraordinary burden. .As EPA recognized in the preamble to the proposed rule, academic intuitions are already faced with a larger number of waste streams than average generators. The added costs administrative costs will severely impact our budgets, and limit meaningful changes that could be implemented if the resources were not otherwise appropriated. (0136)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: To expect a laboratory or research center to document the basis for a hazardous determination on a container-by-container process does not add value and will significantly increase the amount of record keeping required to meet these regulatory requirements. The cost of documenting waste determinations will includes testing, creating and maintaining a documentation system, as well as identifying and tracking people who would need this training. The costs of required training will exceed the benefits. Moreover, this leads to a bureaucratic nightmare of paperwork. If we were to use the prior example of an institution with 1,000 labs then such an institution would need additional employees to track and record the wastes each lab produces; and could potentially cost such an institution hundreds of thousands in training, salary, and benefits with no measurable environmental benefit. 
Currently, EPA does not require keeping records of either solid waste or hazardous waste determinations.

The proposed process in a research setting will be extremely burdensome and impractical. (0140)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: We believe the added record keeping and the proposed distinction between testing and generator knowledge would create an unnecessary burden and would result in significant expenses to the generator at little to no benefit. (0149)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 4. B6. Record retention for determinations of non-hazardous materials is extremely burdensome. (0154)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 1. Documenting "Non-Hazardous" Waste Determinations Is Unnecessary and Overly Burdensome

EPA proposes to require generators to maintain records of all waste determinations, including for non-hazardous wastes. See 40 C.F.R. §262.11(e) (proposed). This proposal represents a dramatic and unwarranted expansion of the generator record-keeping requirements. Steel mills make potentially thousands of such determinations in the course of a year, most of which are made on the basis of process and material knowledge. Requiring written documentation of such determinations will serve only to impose a massive paperwork burden on environmental managers and distract time and attention from truly significant environmentally protective matters.

Moreover, EPA's 15 minute calculation of the time to prepare a "negative waste determination" [Footnote 1: EPA, Economic Assessment of the Potential Costs, Benefits, and Other Impacts of the Improvements to the Hazardous Waste Generator Regulatory Program, As Proposed (June 2015).] is an extreme underestimate, and the assumption that the task would be performed by a low-level "technician" is misguided. Given the likelihood that these determinations will be reviewed by EPA or state inspectors and enforcement officials, the environmental manager at the steel mill is likely to perform the task. The time to prepare a written determination that will satisfy inspection by regulators, including collection and review of documentation, will take at least 1-3 hours and longer for more complex determinations.

EPA claims in the preamble to the proposed rule that the requirement would apply only to wastes "that have the potential to be hazardous wastes" and that "the Agency is not interested in entities that generate solid wastes that clearly have no potential to be hazardous, such as food waste, restroom waste, or paper products." 80 Fed. Reg. at 57,944. However, no such limitation exists in the proposed amended regulatory text at 40 C.F.R. §262.11(e). In fact, even if EPA did include such a policy in the regulatory text, the extreme ambiguity and uncertainty as to what materials "have the potential to be hazardous waste" would render meaningless any attempt to limit the reach of this provision. To avoid potential RCRA liability and second-guessing by enforcement personnel, a rational environmental manager would be forced to prepare written non-hazardous waste determinations for every waste.

The waste determination process would be further complicated by the need to segregate different traditionally non-hazardous waste streams, for example in municipal trash boxes. As the proposed rule states: "Generators may wish to segregate any of their municipal solid waste from other solid and hazardous wastes to avoid potential co-mingling." 80 Fed. Reg. at 57,944. While again perhaps not EPA's intent, in practice, such segregation would be needed in order to prepare a non-hazardous waste determination that would not be open to second-guessing by enforcement personnel.

Despite these unnecessary burdens, documenting non-hazardous waste determinations would provide little, if any, additional protections or result in better waste determinations. Companies already have significant incentive to make accurate and defensible (and conservative) hazardous waste determinations, particularly given the potential penalties for illegal management of hazardous waste if a non-hazardous determination is shown to be incorrect. Hence, the proposal merely would serve to create an unnecessary paperwork and recordkeeping burden without leading to better waste determinations. (0167)


Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: And third, it presents an unnecessary recordkeeping burden on the facility to maintain a comprehensive set of records for almost every waste stream it generates--the only named exceptions being food waste, restroom waste and paper product waste.
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 19. Pages 57945-57946, Section VIII.B.8.: It is not an undue burden for a CESQG (VSQG) to keep documentation onsite of how the waste determination was made, since the majority of CESQG's have limited waste streams in the first place. (0185)
Response: At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination.
Comment: Given the uncertainty that would be introduced by the above, the potential burden of making and maintaining records for all non-hazardous waste determinations is staggering. The number and variety of non-hazardous waste streams generated by some SQGs and LQGs is huge, and the additional obligation to maintain records on these wastes, without some qualifying criteria, could be overwhelming, even for large businesses with sophisticated waste assessment systems in place. This potential burden is even greater when EPA's other proposals for making waste determinations are considered, e.g., presumably, a generator would have to retain records of all the information that the agency proposes for determinations based on "generator knowledge"  -  even for non-hazardous determinations. (See our following comment).
Even before a hazardous/non-hazardous waste determination is made, the rule would require LQGs and SQGs to maintain unspecified records of their initial determinations that a waste is a "solid waste." [Footnote 14: Presumably, a determination that a material is not a solid waste would not have to be recorded.] This requirement is excessive. If a generator considers a particular material to be a solid waste at the outset and then goes on to document its determination of the hazardous or non-hazardous nature of the waste, we see no practical purpose for retaining records of the original solid waste determination. (0188)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The proposed requirement would be particularly burdensome for SOCMA members. Our members have a lot of waste streams, particularly for their size:

- Company A has one manufacturing plant and 2,000 waste streams.
- Company B makes 7,000 products.
- Company C has 100 different waste streams.

These facilities could face staggering obligations to document non-hazardous waste generation.
It is not obvious to SOCMA what benefit, environmental or otherwise, would flow from this new ability (besides additional revenues to EPA and authorized states). After all, a generator is always on the hook to make a correct waste determination  -  even if it has documented its process knowledge, those documents are no defense if EPA or a state tests a waste and finds that it does in fact exhibit a hazardous characteristic.

This proposal would be particularly burdensome on generators because it would require them to spend time writing down what they already know  -  and to write more, rather than less, to avoid accidently omitting any relevant part of their knowledge.

EPA should drop this aspect of the proposal.
..proposed requirement would be particularly burdensome for SOCMA members, who tend to generate many waste streams and to have small facilities. Waste determination documentation files for such facilities could be voluminous and could take up lots of physical or electronic storage space.
This statement ignores the costs of having to stop and create, and preserve, unnecessary records that document judgments based on process knowledge. These costs are real for small and medium-sized businesses which are generating hundreds or thousands of waste streams annually. (0192)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The proposed rule is unnecessarily burdensome as it requires SQGs and LQGs to document in detail their waste determination even when the material is determined to be non-hazardous. According to the proposed rule, these records must include, but are not limited to, the following types of information: the results of any tests, sampling, or waste analyses; records documenting the tests, sampling, and analytical methods used and demonstrating the validity and relevance of such tests; records consulted in order to determine the process by which the waste was generated, the composition of the waste, and the properties of the waste; and records which explain the knowledge basis for the generator's determination, as described in 40 CFR § 262.11 ( d)(2). 
A generator has little assurance that EPA will agree with its determination that a waste has no potential to be hazardous. As a result, LQGs and SQGs will be forced to develop and maintain documentation for all solid wastes generated at the facility. The burdens imposed by this rule are exacerbated by the requirement that a generator reassess the status of the waste if there is a reason to believe the waste may physically or chemically change during management in a manner that causes the waste to become hazardous; a generator may be required to prepare multiple detailed documents for a single non-hazardous waste stream. In addition, the preamble states, "[f]ailure to consider any relevant type of knowledge could be viewed critically if a situation arose in which a particular generator's waste determination came under scrutiny." This statement contemplates limiting a generator's defense in the enforcement context to the information documented, barring consideration of any other information. This means that generators must prepare very extensive and detailed documentation of their waste determinations. EPA has underestimated the impact of requiring SQGs and LQGs to document their non-hazardous waste determinations. Moreover, EPA should eliminate this proposed requirement because it is unnecessary and there is no need to prescribe the type of documentation that will be required. A generator is already required to demonstrate that a hazardous waste determination was performed under the current regulations at 40 CPR § 262.11.
(0201)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: This proposed language dramatically increases the documentation burden on the generator and provides multiple potential citations for non-compliance should an inspector determine that records do not address all of the specified elements. For instance, a generator could be properly characterizing, managing and disposing of a characteristic hazardous waste, but if documentation were not available to demonstrate compliance with 262.11(a), (b) and (c), the generator could still be cited for violations of the waste determination and recordkeeping rules. Requiring records to document the negative (such as a waste is not excluded, a waste is not listed, or the material is not a solid waste) does not increase compliance nor provide for more effective and environmentally sound waste management practice, but only adds to the documentation burden and potential for issuance of notices of violation to hazardous waste generators. The requirement to retain records for three (3) years after the last date of generation of a waste is also extremely burdensome. Many generators produce the same waste stream with the same characteristics throughout their entire operational history. (0205)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

The Agency disagrees with the comment about retaining records for three (3) years after the last date of generation of a waste as being extremely burdensome. The Agency is not changing the record retention requirements under this rule; i.e., records must be maintained for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal.
Comment: Similar burdens would result in a laboratory where numerous experiments occur on a daily and weekly basis with slight variations in the materials used. Again, the laboratory personnel will have a good idea as to which wastestreams might contain ingredients that could cause the waste to be hazardous, but there will be many, many wastes that they generate that they know will not be hazardous simply because of what the waste contains. Yet for each one of these laboratory wastes, documentation would have to be created and retained. 
This is also a significant additional burden for manufacturing facilities with regard to common solid wastes they generate that they know are not hazardous wastes, but an inspector may not know that and he/she may expect and demand waste determination documentation. Examples include inert plastics, non-contaminated wood, clean soil, non-painted metal, food waste, road repair waste, shrubbery and vegetative waste, raw water supply filter waste, packaging, office waste, and product trimmings. EPA suggests that documentation would not be required for common solid wastes, but unless EPA provides a complete list of such common solid wastes, plant owners and operators would risk non-compliance if they assume that an inspector will agree with them that a particular wastestream is a common solid waste not requiring waste determination documentation. Of course, this whole issue of what is or is not a common solid waste requiring waste classification documentation is avoided if EPA does not require waste determination and documentation of solid wastes that are not hazardous wastes, which we urge EPA to do. (0219)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: VIII.B.6 Documenting and maintaining records for hazardous waste determinations- Requiring generators to document and maintain waste determinations for solid waste that is found not to be a hazardous waste is outside of the regulatory umbrella of §261.3 and is a very heavy burden to all industries. Therefore we object to this proposal. (0220)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: TCCI agrees that it is not an "undue burden" to maintain waste stream characterization documentation but it is an "undue burden" to be told in the rule which documentation must be maintained for every stream. TCCI understands that this may be EPA's intent as the discussion at 80 FR 57942 - 57943 addresses solid wastes that "clearly have no potential to be a hazardous waste" for which no documentation is needed. Many SQGs have consultants collect samples for analyses and the generator will maintain the final report of analytical results. The generator will not have all of the QA/QC information associated with the analyses and will likely not even have the chain of custody which is not required by the rule. This does not make the documentation any less credible. In addition, laboratories charge significant additional fees to provide the full QA/QC results with each sample.

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Also prosed in Section 262.11(e) requires that: "A small or large quantity generator must maintain records supporting its solid and hazardous waste determinations, including records that identify a material as a solid waste, as defined by 40 CFR 261.2, and records identifying whether that solid waste is or is not also a hazardous waste, as defined by 40 CFR 261.3." Currently, EPA does not require keeping records of either solid waste or hazardous waste determinations.

The proposed process in a research setting will be extremely burdensome and impractical. The proposed process does not enhance environmental health and safety; the current regulation already requires that any person who generates a solid waste must determine whether that waste is a hazardous waste and prescribes the methodology for doing so.For large institutions, there are no practical way to keep records of every applicable solid waste determination made in such a setting. To use an example, if the proposed regulations were implemented in a large institution with 1,000 labs then each lab would be required to make a determination of all the wastes generated, manage the reports and have a representative of each lab trained to make such determinations. This is highly impractical, as it will burden a lab with extra unnecessary procedures. It will potentially lead to waste being disposed of improperly if individuals are not properly trained per each lab for proper waste determination. It will also further burden the oversight of waste disposal as the organization tasked with removing the waste will have to verify, check, and record records for each lab. The current regulations are far more practical as an institution can have a single group within the organization trained and qualified to identify, record, and sort the waste for disposal.

Furthermore, I disagree with EPA's statement on page 57942 of the preamble, which refers to the "minimal costs of requiring SQGs and LQGs to document hazardous waste determinations, including determinations where the solid waste was found not to be a hazardous waste." The cost of documenting waste determinations will includes testing, creating and maintaining a documentation system, as well as identifying and tracking people who would need this training. The costs of required training will exceed the benefits. Moreover, this leads to a bureaucratic nightmare of paperwork. If we were to use the prior example of an institution with 1,000 labs then such an institution would need additional employees to track and record the wastes each lab produces; and could potentially cost such an institution hundreds of thousands in training, salary, and benefits with no measurable environmental benefit. (0227)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Non-Hazardous Waste Determinations and Recordkeeping

Walmart has literally millions of unique consumer products available to be sold in any one of its retail stores across the country. Given this fact, the Retail Sector stands alone from other types of generators. The current RCRA requirements regarding waste determinations for the vast numbers of retail products that are potentially hazardous waste is already a difficult and undue burden placed on the Retail Sector. To compound that problem by adding recordkeeping for non-hazardous waste determinations would be an enormous additional burden on the Retail Sector.

Hazardous Waste Determinations and Recordkeeping

EPA's proposal to require a "record" of hazardous waste determinations is unnecessary and also is unduly burdensome for the Retail Sector, in particular. In addition to requiring generators to compile numerous documents into a record, the Retail Sector would have to maintain these records for millions of consumer products, many of which change year to year. In addition, extending the recordkeeping requirements to the time of facility closure simply compounds the problem. The Retail Sector will effectively be forced to permanently maintain hazardous waste determination "records" for millions of consumer products - the very same consumer products that the American public takes home and eventually discards on a daily basis by the hundreds of millions. There is no discernable reason to place such burdensome new requirements on the Retail Sector. Extending these requirements to CESQGs will only compound the burden on the Retail Sector.

The Retail Sector is uniquely situated compared to the typical industrial generator RCRA was intended to target. Therefore, Walmart suggests that EPA create an appropriate Retail Sector or Consumer Product exemption if EPA moves forward with this or the other new requirements included under the Proposed Rule. (0233)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Regarding the comment that EPA create an appropriate Retail Sector or Consumer Product exemption if EPA moves forward with this or the other new requirements included under the Proposed Rule. This comment is beyond the scope of this rule.
Comment: EPA dismisses as "minimal" the costs of documenting all hazardous and non-hazardous waste determinations. This assumption by EPA is not accurate. The additional costs for making these determinations and managing the additional paper work will take additional man power and analytical costs at all facilities large and small facilities. (0245)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Second, keeping records of solid waste determinations adds immensely to the record keeping burden without providing any tangible improvement in environmental protection or benefits to the generator of the solid waste. Addition of this requirement would also create even greater confusion for the regulatory community -- both generators and regulators alike.

For example, the way the regulatory language is proposed, it could easily result in delegated states requiring generators to keep records on a solid waste determination of typical office waste. The Agency attempts to address the concern about typical office/household waste in the preamble (80 FR 57,944) where it is stated. (0255)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Inmar opposes EPA's proposed new requirement that generators maintain waste determinations for solid waste. This major change from EPA's longstanding practice will impose significant costs on the retail and healthcare sectors, with little, if any, environmental benefit. (0260)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Further, ACA questions EPA's statutory authority to require hazardous waste generators to keep detailed records for wastes determined not to be hazardous; expanding RCRA recordkeeping requirements to include all solid waste determinations is overreaching by EPA. From a practical standpoint, ACA is concerned that this proposed requirement greatly expands recordkeeping requirements since all solid waste determinations would now need to be documented, even though these solid wastes may not be hazardous. ACA seriously questions the necessity of requiring generators to document wastes that are not hazardous since EPA claims that biennial reports indicate that many SQGs and LQGs generate the same waste from year to year; given that statement, EPA would not need additional documentation on solid waste determinations, since the waste streams typically do not change. It is also counter to EPA's initiative to streamline the regulations, reduce regulatory burdens and remove requirements that have minimal value/benefit. ACA recommends that EPA and the states use education and outreach and other non-regulatory methods to reduce misclassification of waste streams. Further, the regulations should clearly include language that would exempt solid wastes which clearly would not be hazardous, such as food waste, paper products etc. from the waste determination and documentation requirements. (0262)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes. Therefore, this commenter does not have to address solid wastes which clearly would not be hazardous, such as food waste, paper products etc. from the waste determination and documentation requirements. Generators shall keep records only for those solid wastes found to be hazardous wastes. 
The Agency is also in agreement regarding the recommendation that EPA and the states use education and outreach and other non-regulatory methods to reduce misclassification of waste streams.
Comment: While Virginia Tech understands EPA's intent with this proposal, we believe the requirements are functional and financial burdensome and will have negative effect. (0284)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: We are opposed to the changes listed in Section 262.11(e). It requires all waste generators to document and keep records for waste determinations on ALL solid wastes regardless of if they meet any federal, state, or local definition of regulated waste or not. We believe this simply adds an excessive regulatory burden with no additional environmental protection. This would require a tremendous amount of increased training for all of our campus' staff, faculty, and students about waste definitions and waste determinations. (0285)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: In addition, EPA failed to evaluate the cost of computerizing records, subsequent updating of software, training of staff, and maintaining equipment and the space to house the equipment. Further, EPA has not considered replacement expenses as all tools become obsolete over time. EPA's own experience with cost overruns associated with the implementation of the e-manifest is an important reminder of the complications and difficulties associated with both maintaining and computerizing records. And costs will only multiply over time. Some of CKRC's members have operations with over one hundred years of continuous operations. Such a requirement would result in exorbitant records retention costs with no associated environmental benefits. EPA lacks authority to require storage in perpetuity of records once the retention of those records does not meaningfully contribute to the protection of human health and the environment. CKRC is opposed to such a requirement. (0286)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Section 4.2.5.3 - Waste streams per generator


Comment: The analysis on page 57944 of an average of 17 waste streams per LQG may be somewhat misleading. My 2013 Biennial Report used only 23 Form GM's. However, the stream described as spent non-halogenated solvent actually represented 9 separate waste streams; I didn't do the calculation or the number of items represented by "non-acute lab pack' but, a typical month is in excess of 200. (0097)
Response: As pointed out in preamble, we are aware of sectors such as academic and industrial labs as well as the waste management industry and retail sector where a large number of waste streams are generated. But these large numbers are counterbalanced by other sectors where only 1 to 5 waste streams are generated per generator. 
Comment: For example, at a research and development (R&D) facility where prototype products are reformulated for development into marketable products, many slightly different solid wastes are generated in a typical week or month. The people involved in the formulation of these prototypes will have a good understanding of whether the wastes associated with each formulation would potentially be hazardous waste based on the ingredient mix that they are using in each formulation. Most formulations for a specific product will use ingredients within the same family of chemicals, maybe with slightly different percentages or with only one or two different ingredients. If the waste from formulation #1 of a prototype product is not a hazardous waste, it is highly likely that the waste from formulation #100 of that prototype product is not a hazardous waste. Yet based on the rule as proposed, documentation would have to be created for the wastes from each of those formulations.

Similar burdens would result in a laboratory where many experiments occur daily and weekly with slight variations in the materials used. Again, the laboratory personnel will have a good idea which waste streams might contain ingredients that could cause the waste to be hazardous, but there will be many wastes that they generate that they know will not be hazardous simply because of what the waste contains. Yet for each of these laboratory wastes, documentation would have to be created. 
At these "batch," "toll" and "innovative" manufacturing plants, it is typical for dozens of products to be produced for a few years, and then no longer produced. It is also typical for each of these products to have several solid waste streams that would require, under the new proposal, waste determination documentation whether each stream is hazardous or nonhazardous. (0113)
Response: The above comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point. (0135)
Response: The Agency believes this is a point of generation comment. A hazardous waste determination must be made at the point of generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste such that the RCRA classification of the waste may change.
Comment: Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any benefit in safety or compliance. (0135)
Response: The above comment is no longer relevant.The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: a. Using the Bienniel report to determine number of waste streams/ determinations per generator is misleading.
i. Combining like waste streams on GM forms is allowed and used extensively when completing the report resulting in your estimate on number of waste streams per generator being extremely low. (0154)
Response: The Agency disagrees with the above comment. GM forms must be submitted for every different waste stream generated.
Comment: EPA should not require waste determinations for individual wastewater streams that are comingled in the headworks of a wastewater treatment unit. (See Comment #11). (0219)

Response: The Agency disagrees with the above comment. A hazardous waste determination must be made at the point of generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste such that the RCRA classification of the waste may change.
Comment: The EPA incorrectly assumes that the majority of SQG's and LQG's generate between one and five hazardous waste streams and that generators who do generate a large amount of waste streams annually computerize their records. (0283)
Response: As pointed out in preamble, we are aware of sectors such as academic and industrial labs as well as the waste management industry and retail sector where a large number of waste streams are generated. But these large numbers are counterbalanced by other sectors where only 1 to 5 waste streams are generated per generator. We also believe from discussions with generators and the waste management industry that many generators with numerous waste streams computerize their records or have contractors that assist them in this effort. However, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Section 4.2.5.4 - Alternate solutions

Comment: Recommendation: Do not impose new recordkeeping requirements for wastes which clearly have no potential to be hazardous waste or for wastes that are clearly hazardous waste and are being managed as hazardous waste. At most, documentation should be limited to records related to assessment of industrial solid waste streams with the potential to be hazardous that have been determined to be non-hazardous. (0103)
Response: The above comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Instead, EPA should solicit input from stakeholders on appropriate waste determination recordkeeping requirements and propose a subsequent rulemaking based on outcomes from that dialog. (0106)
Response: At this time, in lieu of requiring non-hazardous waste determination documentation, the Agency is considering initiating a dialogue with industry and states to identify the root causes of this problem and identify potential solutions. Such solutions may include establishing best management processes and practices, along with the possible development of generic decision tools or other technical assistance information that can assist generators with the process of evaluating whether the solid waste they have generated is a hazardous waste.

Comment: CIANJ recommends that the record retention requirements be eliminated for non-hazardous waste and the retention timeframe be limited to 3 years for other hazardous waste determinations. (0120)

Response: The Agency agrees with the above comment. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Similarly, the retention timeframe for waste determinations is limited to 3 years from the date the waste was sent off-site for disposal or for on-site management.   

Comment: If EPA adopts a final rule requiring waste determination documentation, EPA should change the language of this rule from "must" to "may." Alternatively, EPA should change this rule to read in pertinent part: 
"...These records must comprise a generator's knowledge of the waste and support the generator's determination, as described at 40 CFR 262.11(c) and (d). If the generator relies on any of the following information for its determination, it must include in its records such information: the results of any tests, sampling, or waste analyses; records documenting the tests,..."

Both of these alternative formulations of this rule would make clear that information that was not relevant to the generator's determination need not be documented. (0219)
*Response: The comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, the Agency believes this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Documentation of validity and relevance of analytical test methods (40 CFR §262.11(e))

EPA should delete the proposed language in 40 CFR 262.11(e) requiring that the documentation "demonstrate the validity and relevance of such tests." For tests methods that are required under the regulations, there should be no need to document the validity or relevance of the test since that was done by EPA when it adopted those required tests. For other tests that the generator relies upon, such as a DOT explosive hazardous materials test to determine if a waste is D003 reactive, most generators will not have the technical expertise in analytical chemistry to "demonstrate the validity and relevance" of the test. Rather, the generator would have consulted a commercial laboratory and obtained a recommendation on what test to employ. Asking a generator to document the technical reasons for the recommendation asks for more information than a typical generator can reasonably provide, and is unnecessary and burdensome. (0219)
Response: The Agency agrees with the comment that there is no need for generators to document the validity or relevance of tests identified by EPA when it adopted those required tests. However, the Agency disagrees with the comment that EPA should delete the proposed language in 40 CFR 262.11(e) (actually (f)) requiring documentation that demonstrates the validity and relevance of tests other than tests not specified in subpart C of 40 CFR part 261. 
As we point out in preamble, most generators use knowledge of the process and associated chemical feedstocks in making a waste determination, but situations may exist where testing is necessary. Obviously the generator should use an EPA test if at all possible because an EPA or state inspector will have an understanding of the analytical test and its relevance and validity to the waste in question. But for an alternative test, and without any supporting documentation, how is an EPA or state inspector to know anything about the test's relevance and validity? Questions that arise include: Why did the generator choose this test? How is the test similar to or different than the EPA test? How valid is the test and test results and what basis was used to choose that test? Most importantly, what are the test results?
What becomes clear is that without such documentation, the implementation and enforceability of a generator using an alternative test to support its waste determination becomes impractical for all intent and purpose. Basically, EPA or the state inspector must either accept the results of the test blindly (which he/she cannot do) whether the waste is found to be hazardous or not, take a grab sample and conduct an independent test and analysis, or cite the generator for failing to make an accurate hazardous waste determination based on the responses he receives once he completes a series of questions about what the generator did and why.
What also becomes clear is that if a generator chooses an alternative test to make a hazardous waste determination, it will have to have some expertise in analytical testing and analysis. Otherwise, the generator may be cited for a violation should an inspector pose questions similar to the above without an adequate response.  
Comment: The proposed waste determination documentation language also needs to recognize important documentation exceptions that EPA has in its existing rules, and most of which, it acknowledges in this preamble. These exceptions are underlined below. Thus, if EPA adopts a waste determination documentation requirement in the final rule, it should state:

"(e) Recordkeeping for Small and Large Quantity Generators. A small or large quantity generator must maintain records supporting its determination that a solid waste, as defined by 40 CFR §261.2, is a hazardous waste, as defined by 40 CFR §261.3, except that the documentation is not required for:
1. a hazardous secondary material that is excluded from regulation as a solid waste;
2. a solid waste that does not have the potential to be a hazardous waste, such as food waste, restroom waste, paper products, and similar materials;
3. a solid waste that is excluded or exempted from regulation as a hazardous waste; and
4. a hazardous waste that is otherwise exempt from the requirement to make a hazardous waste determination and/or to document such determination.
Records must be maintained for at least three years from the date that the waste was last generated. . ." (0219)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Section 4.2.5.5 - "Accurate" waste determinations

Introduction
As part of the Hazardous Waste Generator Improvements Rule, the Agency proposed that solid and hazardous waste determinations must be accurate. EPA believes that waste determinations are of utmost importance to the success of the program and warrant this emphasis regarding accuracy. Accurate determinations ensure that each waste stream generated will be properly managed, will protect workers by making the company and the worker(s) aware of the dangers of the waste(s) being managed, and will ultimately lead to an accurate generator status determination.

Summary of comments
Eight commenters support the requirement that hazardous waste determinations must be accurate. (0085, 0106, 0132, 0160, 0188, 0195, 0217, 0232)
Eleven commenters did not believe the term "accurate" should be incorporated in the regulation as it implies that other requirements do not need to be done accurately. (0089, 0097, 0123, 0126, 0168, 0188, 0200, 0201, 0219, 0232, 0262) 
Eight commenters recommended the Agency clarify "accurate" as is it applies to waste determinations. (0097, 0120, 0126, 0127, 0132, 0168, 0219, 0255)
One commenter recommended the Agency replace "accurate" with "sufficient." (0232) 

For the proposal
Comment: Regarding revisions to the hazardous waste determinations section 262.11  -  Section VIII.B.1-3., pages 57935-57939: Colorado agrees with the seven proposed changes to the hazardous waste determinations section and especially supports the specific requirement that hazardous waste determinations must be accurate. Colorado wholeheartedly agrees with the proposal to add language into section 262.11 to emphasize that a generator who generates a solid waste must accurately determine if that waste is a hazardous waste. Colorado has cited to this provision over the years with the assumption that accuracy was implicit, but having it explicitly stated makes the regulation easier to cite when a generator has actually made a hazardous waste determination, but was wrong. (0085)
Comment: REGFORM acknowledges the importance of making accurate hazardous waste determinations, that inaccurate determinations will likely lead to enforcement action against a facility, and that existing regulations already require facilities to maintain certain waste determination records such as laboratory test results. (0106)
Comment: Updating the waste determination regulations to better describe what information is necessary to make accurate hazardous waste determinations. Accurate waste determinations are required to ensure that each waste stream generated by a company is properly managed. Additionally, accurate waste determines protects workers by making the company and the worker(s) aware of the dangers of the waste(s) being managed. Further, accurate waste determinations will ultimately led to an accurate generator status determination. (0160) 
Comment: SD supports clarifying regulatory language regarding making thorough waste determinations. The proposed language in §262.11 basically defines the term "accurate", used in the first paragraph, by outlining the steps a generator needs to take to make a proper waste determination. These steps essentially summarize the methods generators currently are supposed to take without adding additional requirements. This should provide clarity for the regulated community. (0195)
Response: The Agency agrees with the above comments.
Comment: As stated by EPA, at the core of the RCRA hazardous waste program is the need for generators to make an accurate hazardous waste determination. EPA also quoted a 1993 Federal Register (FR) notice and stated the notice points out that while using process of knowledge is "seemingly attractive because of the potential savings associated with using existing information, the facility must ensure that this information accurately characterizes applicable wastes." Therefore, the States support adding this language that requires waste determinations to be accurate. The States believe this single word provides more of a framework for ensuring and enforcing correct determinations and the proper management of the waste. (0217)
Response: The Agency agrees with the above comments and need to emphasize that waste determinations must be accurate.

Comment: Specifically Stating That the Hazardous Waste Determination Must Be Accurate
The MPCA concurs with the expressed intent of the EPA to attempt to ensure that waste generators perform due diligence in making an accurate waste determination, however the MPCA believes that revised terms would be more appropriate and helpful.The EPA focuses on the word `accurate', which may be interpreted to apply to an entire evaluation, or, though apparently not EPA's envisioned meaning, just as correctly to any of the information used in an evaluation. Under that meaning, an evaluation might be considered to be `accurate' if based on all correct information, yet still incorrectly determine hazardous waste to be unregulated if insufficient or incomplete information is gathered. As an example, if a product containing 0.01% silver as a preservative or antibacterial ingredient were evaluated using a Safety Data Sheet (SDS) prepared according to OSHA standards, that silver content would not be required to be annotated in the SDS, and though all the information in the SDS is accurate, a generator could reach an incorrect conclusion that waste generated from use of the product was unregulated, though all information relied upon in their evaluation was `accurate'. The term `accurate' also does not provide any meaning towards how intensive or deep a generator's research must be to meet the intended standard. A 5-minute review of an SDS and product brochure may well be `accurate' but much too superficial to ensure that the generator has considered all potentially hazardous attributes of the waste.

Therefore, the MPCA recommends replacement of the term `accurate' with `sufficient'. The MPCA has consistently used this term in guidance materials and enforcement actions at least since 2002, and believes it properly focuses on the reasonability of the depth and thoroughness of the generator's evaluation. (0232)
Response: The commenter above raises good points but we still must disagree. Use of the term "accurate" reflects the Agency's intent that it's the results of the determination that matters such that the waste is managed safely and properly. Substituting the term "sufficient" is also subjective with no guarantee that the result will be an accurate hazardous waste determination. 
Comment: The MPCA concurs with the expressed intent of the EPA to attempt to ensure that waste generators perform due diligence in making an accurate waste determination, however the MPCA believes that revised terms would be more appropriate and helpful. The EPA focuses on the word `accurate', which may be interpreted to apply to an entire evaluation, or, though apparently not EPA's envisioned meaning, just as correctly to any of the information used in an evaluation. Under that meaning, an evaluation might be considered to be `accurate' if based on all correct information, yet still incorrectly determine hazardous waste to be unregulated if insufficient or incomplete information is gathered. 
Therefore, the MPCA recommends replacement of the term `accurate' with `sufficient'. The MPCA has consistently used this term in guidance materials and enforcement actions at least since 2002, and believes it properly focuses on the reasonability of the depth and thoroughness of the generator's evaluation. (0281)

Response: The commenter above raises good points but we still must disagree. Use of the term "accurate" reflects the Agency's intent that it's the results of the determination that matters such that the waste is managed safely and properly. Substituting the term "sufficient" is also subjective with no guarantee that the result will be an accurate hazardous waste determination. 

Neither For or Against Proposal
Comment: In the preamble, EPA notes that it has some concerns about situations in which a generator applies due diligence but still makes an incorrect hazardous waste determination. EPA specifically requests comments on why it may not be feasible to require accurate determinations and how to clarify a generator's responsibility. Even when a diligent effort is made to accurately characterize a waste, it is possible for the determination to be inaccurate. Diligent efforts already account for reasonably anticipated variation in routine waste generation. However, a raw user (or supplier) might not know if material were delivered with an inadvertent contaminant, which could potentially result in a waste that was not accurately described despite best efforts.

The only option available to the generator to ensure complete accuracy would be to test every drum or container of routine wastes to assure that no error could have been made (and that presumes the laboratory analytical data were infallible). This would not be a cost-effective approach. Rather than requiring measures to eliminate any possibility of inaccuracy, it seems that the intent of the accurate determination would best be met by performing and documenting diligent efforts to characterize and describe waste streams, taking into account reasonable variations, process upsets, and other factors. (0257)
Response: The Agency agrees with the comments above that performing and documenting diligent efforts to characterize and describe the waste streams they have generated, taking into account reasonable variations, process upsets, and other factors will help in making an accurate waste determination. Most generators use knowledge of their chemicals and processes to make a hazardous waste determination but situations may occur where testing of their wastes is necessary. This may occur when the generator is unsure of what they have generated, there is too much variability in the chemicals used and wastes generated. There is no "one size fits all" answer to the challenges faced by generators in making hazardous waste determinations but the more effort and due diligence they put into this effort, the higher the probability that their waste determination will be accurate.

Against the proposal
Comment: In several locations throughout the proposed changes in the regulations, the EPA is proposing to add the term 'accurately' when evaluating hazardous waste. Adding the term 'accurately' is redundant and implies other requirements do not need to be done accurately; if an organization needs to make a determination it need not be stated that the determination is accurate. In addition, on forms such as the biennial report, and other documents, a responsible person must certify that the information is accurate to the best of their knowledge. I would request that the changes to add the term 'accurately' not be incorporated in the regulation. (0089)

Comment: To a great extent the addition of the adjective is unnecessary and possibly redundant. Why make a waste determination at all if there is not a degree of validity attached. If an entity is found to deliberately falsify a waste determination, the word "accurate" is hardly needed to assess a penalty.

On the other hand, this opens the question of how accurate is accurate enough? Is generator knowledge sufficient? Is a TCLP required? If this word is interjected a generator would be ill-advised to follow the example touted in the preamble which assigns a waste code. (0097)
Comment: More importantly, the proposed rule does not articulate how the retention of documentation will improve generators' ability to make accurate waste evaluation decisions. The concerns articulated in the preamble to the Proposed Rule revolve around confusion over the waste determination criteria, not over what information informs that determination. Indeed, stakeholders have raised these concerns over many years. If the Agency seeks to improve the accuracy of waste determinations, it should focus on clarifying the waste determination process. (0107)

Comment: This would be contrary to the Agency's position that waste determinations be accurate.(0121)
Comment: WRPS is not in favor of the proposed change regarding the need for hazardous waste determinations to be accurate, as there would be little added benefit from this change and it could cause confusion. While the preamble language indicates that a generator can declare a waste as hazardous waste when it really is not, the regulatory text does not include that language. And, there is little defense of conservative designations or over-designations. Not all waste (e.g. debris) is amenable to sampling. There are times when it is not possible, practical, or cost effective to sample the interior of equipment/debris that becomes waste. Therefore the generator might not be able to make an accurate designation and might be left with making a conservative process-knowledge-driven designation, even if it results in higher waste management costs. This situation could be interpreted as not complying with this regulation.

WRPS requests clarification on the meaning of "due diligence," as used in the proposed change regarding the need for hazardous waste determinations to be accurate. WRPS is not in favor of the portion of this proposed text that states, "must make an accurate determination of whether that waste is a hazardous waste," for the same reason as stated above with regard to preamble text on page 57945. (0123)

Response: One reason for including the language explaining a generator must make an accurate waste determination to ensure the wastes are properly managed is to clarify the applicability of § 262.11 in instances in which generators choose to manage their non-hazardous wastes as hazardous wastes. Even if the waste may not be hazardous, "over managing" the waste is acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.

With respect to a generator applying or using "due diligence, the Agency expects generators to establish processes and procedures that enable them to determine why their materials are hazardous or not. 
Comment: We believe that the Agency should consider further defining "accurately" as it relates to the proper waste determination as discussed in the preamble FR pg 57936 B. Waste Determination (40 CFR 262.11 clear at the very beginning of 262.11 that the hazardous waste determination ." This is also addressed in other sections of the preamble letter as well. (0127)

Response: The Agency agrees with this commenter and has modified the regulatory text to provide a rationale for this change by stating that the accurate determination is in order to ensure wastes are properly managed under RCRA. Accurate hazardous waste determinations are necessary to ensure the proper management of waste within the RCRA framework; in doing so, environmental protection will be enhanced and greater generator accountability fostered. 

Comment: HWI comment: We agree that solid waste should be determined if it is a hazardous waste. However, without a definition for "accurately," we suggest removing this word. This is very ambiguous and subjective and could lead to unintended enforcement actions. (0132)

Response: The Agency disagrees with the above comment. EPA believes that waste determinations are of utmost importance and warrant this emphasis regarding accuracy. As one commenter stated, "Accurate waste determinations are required to ensure that each waste stream generated by a company is properly managed. Additionally, accurate waste determinations protect workers by making the company and the worker(s) aware of the dangers of the waste(s) being managed. Further, accurate waste determinations will ultimately lead to an accurate generator status determination." (Comment by individual consumer. Docket number: EPA-HQ-RCRA-2012-0121-0160 )

Comment: EPA's Proposed Requirement of "Accuracy" Is Unnecessary, Impermissibly Vague, and Potentially Environmentally Counterproductive

EPA has proposed to require that generator determinations of whether a waste is hazardous or non-hazardous must be "accurate." See 80 Fed. Reg. at 57,992 (proposed to be codified at 40 C.F.R. § 262.11). The purpose of this requirement, according to the Agency, is "to emphasize and make clear" that these determinations must be accurate. Id. at 57,945.

This proposal is utterly unnecessary. EPA cannot possibly think that the existing rules are ambiguous about whether it is acceptable to misclassify a hazardous waste as non-hazardous, or that there is any lack of awareness of this fact in the regulated community. A generator who misclassifies a waste in this manner and handles the waste accordingly will necessarily be in noncompliance with a host of regulatory requirements, such as those related to hazardous waste labeling/marking, storage, personnel training, contingency planning, manifesting, and recordkeeping. (Under EPA's theory (see Section 5.3 below) that virtually any noncompliance turns generators into TSDFs, the generator would also be in violation of the RCRA permitting requirement and associated requirements, such as financial responsibility.) As EPA has long acknowledged, such "liability for incorrect determinations" is an obvious and powerful incentive for generators to make sure they are not misclassifying hazardous wastes as non-hazardous. See, e.g., 55 Fed. Reg. at 11,830. The proposed "accuracy" requirement would, at most, enable EPA to pile one more allegation of noncompliance on top of countless others, against a generator making such a misclassification. It is difficult to imagine that this would meaningfully increase the incentive not to make this type of error.

Moreover, the proposed requirement is not as simple and innocuous as it may at first appear. The proposed rule does not define "accurate," which could create significant problems. Arguably, a waste determination would not be accurate if it results in a non-hazardous waste being classified as hazardous, or if it results in a hazardous waste being assigned an extra hazardous waste code that does not actually apply. In the preamble to the proposal, EPA seems not to be concerned about the first type of over-classification, saying "[t]he generator is always free to manage its [non-hazardous] solid waste as a hazardous waste if it so desires." See 80 Fed. Reg. at 57,945. However, the Agency says that the second type of over-classification "does not satisfy the requirement to make an accurate waste determination." Id. These statements seem inconsistent, given that over-classification of a non-hazardous waste as a hazardous waste necessarily requires assignment of one or more hazardous waste codes that do not actually apply.

Furthermore, it is unclear why either type of over-classification should be a concern to EPA, since both would presumably result in the wastes being handled in a more protective manner. Indeed, in several other contexts  -  including the companion proposal on hazardous waste pharmaceuticals  -  EPA actively encourages generators to handle non-hazardous wastes in accordance with the requirements for hazardous wastes. See, e.g., 80 Fed. Reg. at 58,029 ("a healthcare facility may choose to manage its ... non-hazardous waste pharmaceuticals as hazardous wastes under this [proposal]"); 60 Fed. Reg. 25,492, 25,513 (May 11, 1995) (noting that one of the benefits of the universal waste rule is that it "eliminated [the need for] identifying, documenting, and keeping separate regulated and unregulated waste," and "encourag[ing] persons to manage both regulated waste and unregulated waste in the same collection systems ... [a]s long as all commingled waste is managed in a system that meets the requirements of the universal waste regulations"). The proposed requirement for accuracy could prevent such practices, with significant adverse effects on the environment. (0168)


Response: The Agency disagrees with the comment emphasizing that a waste determination be accurate is unnecessary, impermissibly vague, and potentially environmentally counterproductive. EPA believes that waste determinations are of utmost importance to the success of the RCRA program and warrant this emphasis regarding accuracy. As one commenter stated, "Accurate waste determinations are required to ensure that each waste stream generated by a company is properly managed. Additionally, accurate waste determinations protect workers by making the company and the worker(s) aware of the dangers of the waste(s) being managed. Further, accurate waste determinations will ultimately lead to an accurate generator status determination." (Comment by individual consumer. Docket number: EPA-HQ-RCRA-2012-0121-0160) 

Regarding the comment that the Agency did not define the term "accurate", the Agency believes it is unnecessary because there is a common understanding of the meaning of this word. Similarly, regarding the comments associated with over-classifying solid wastes as hazardous wastes when it may not be the case, the Agency has said that "over managing" the wasteis acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice. Regarding identifying the applicable RCRA codes, the generator will either have to its best to identify the most appropriate waste codes, or when sending the waste off-site, manage the waste as non-hazardous if it so chooses. In other words, the generator has a choice of managing the non-hazardous waste as hazardous throughout its life-cycle, or stop when its time to ship the waste off-site to a RCRA permitted TSDF. 

Regarding the comment, "Furthermore, it is unclear why either type of over-classification should be a concern to EPA, since both would presumably result in the wastes being handled in a more it is not a concern. Similarly, the comment, "The proposed requirement for accuracy could prevent such practices, with significant adverse effects on the environment protective manner" is unclear to the Agency since the practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
Comment: EPA Should Allow Retailers to Make and Record Hazardous Waste Determinations Based on Information Provided by Product Manufacturers or Third-Party Services with Access to Proprietary Manufacturer Data

In its discussion of the proposed "accuracy" requirement, EPA acknowledges that "[g]enerators often rely on a third party ... to help them make a hazardous waste determination," but cautions that in these cases "the generator should still apply its due diligence to ensure a solid waste is not a hazardous waste, and if a hazardous waste, that it is characterized accurately." See 80 Fed. Reg. at 57,945. While this requirement of additional due diligence may make sense in the context of manufacturers who generate solid wastes, it places an impossible burden on retailers whose unsold or returned products may in some cases qualify as solid wastes.

Retailers commonly carry tens of thousands of products, and they have only limited information about such products, in part because some of the relevant information is proprietary. As a result, if the information provided to a retailer by the manufacturer (or by a third-party service that has access to proprietary information that the retailer is not privy to) does not include any indication that a product is hazardous, or indicates that it is hazardous only under certain waste codes, there is no further due diligence that the retailer can reasonably be expected to conduct. Moreover, in these instances, the retailers will not be able to assemble a full dossier on each waste, as EPA envisions under its proposal, except for the information provided by the manufacturer (or third-party service).

We ask EPA to explicitly allow retailers to make and record hazardous waste determinations in these ways, so that it is clear that they do not have to engage in additional due diligence for tens of thousands of products without the information/tools that would be necessary for such due diligence. (0168)
Response: Generators are responsible for making accurate hazardous waste determinations. This activity may include relying on information provided by product manufacturers or third-party services with access to proprietary manufacturer data.
Comment: EPA states in the NPRM that "[t]he primary obligation for generators is to accurately determine whether or not a solid waste is a hazardous waste." We agree with this observation. The agency, however, includes "accuracy" as an affirmative requirement in the proposed rules. EPA explains, that "at the core of the RCRA hazardous waste program is the need for generators to make an accurate hazardous waste determination. Therefore, to emphasize this point the Agency is modifying the regulatory text at 40 CFR 262.11 to emphasize and make clear that a generator who generates a solid waste, as defined in 40 CFR 261.2, must accurately determine if that waste is a hazardous waste."

We are not entirely sure why EPA feels it necessary to emphasize "accuracy" in this way. Even under existing rules, the failure to properly (i.e., "accurately") classify a waste as hazardous will result in a RCRA violation. The inclusion of a separate "accuracy" requirement adds nothing except, possibly, to provide an additional citable provision. More importantly, however, the provision could be used to cite a generator who mischaracterizes a non-hazardous waste as hazardous. Despite there being no resultant negative environmental impact, the generator would nevertheless have failed to "accurately" characterize its waste. While we cannot imagine that this is EPA's intent, it nevertheless is a potential outcome. IME opposes EPA's proposed use of the term. (0188)
Response: EPA believes that waste determinations are of utmost importance to the success of the RCRA program and warrant this emphasis regarding accuracy. Similarly, one reason for including the language explaining a generator must make an accurate waste determination to ensure the wastes are properly managed is to clarify the applicability of § 262.11 in instances in which generators choose to manage their non-hazardous wastes as hazardous wastes. Even if the waste may not be hazardous, "over managing" the wasteis acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.

Comment: Furthermore, the proposed continual obligation to perform a waste determination after the initial generation creates additional problems for accuracy. If, as EPA points out, the wastes may "change" properties after the initial generation, then how are companies going to ensure that each day they have an "accurate" waste determination? Will companies be required to sample and analyze each day?EPA has taken the position that it can use "grab" samples for enforcement purposes, so will any "change" that might be detected in a grab sample at one point in time be sufficient to overcome even daily samples that attempt to monitor for any possible changes? Again, EPA's proposal imposes additional, unnecessary costs to the generator and creates more compliance problems than the limited ones it seeks to solve with these overarching revisions.
Response: Generators have an obligation to be aware of the properties of their wastes, including the possibility that a non-hazardous waste determination at the point of generation may change classification while being accumulated on-site because the properties of the waste changed. The Agency does not expect generators to monitor its waste hour by hour or day by day as much as to understand what type of wastes they are dealing with and monitor its waste characterization accordingly. This is particularly the case when a generator classified its waste as non-hazardous yet subsequent management by a waste management facility found the waste to be hazardous. That finding should cause the generator to monitor more closely what type of waste it is handling.

Comment: Finally, technically, the issue of "accuracy" should only be a concern when a generator might misidentify a "hazardous waste" as a "solid waste" (not the other way around). The specificity or accuracy of a determination for a material that, at most, qualifies as a "solid waste" is irrelevant to the overarching goals of RCRA Subtitle C, and certainly should not become an agency enforcement focus. This is important given that EPA does not have authority to regulate non-hazardous wastes under Subtitle C. Yet, the proposed revisions do just that by imposing the accuracy requirement and the ongoing monitoring obligation on both hazardous and non-hazardous wastes. (0200)
Response: As stated above, even if the waste may not be hazardous, "over managing" the wasteis acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
Comment: ..... EPA's proposal to clarify that a waste determination must be "accurate" and that a generator has an obligation to make determinations at points throughout the management of a waste or waste stream where the hazardous/non-hazardous status of the waste changes causes more confusion than clarity. As written in the current version of Section 262.11, the first sentence sufficiently conveys that a determination regarding hazardous waste has to be "accurate." Adding the word "accurate" does not provide additional clarity. Generator's use process knowledge and laboratory testing and documentation to determine the classification of wastes. EPA's insertion of the word "accurate" in the Section 262.11 implies that more is needed. However, process knowledge and laboratory support and documentation should be sufficient without creating an extra undefined, quantitative hurdle for proving "accuracy." (0200)

Response: EPA believes that waste determinations are of utmost importance to the success of the RCRA program and warrant an emphasis regarding accuracy. The Agency disagrees with the comment that requiring generators to make an accurate hazardous waste determination will cause more confusion than clarity. By emphasizing this term, the Agency believes generators will further understand that they need to establish those processes and procedures that will result in making the correct waste determination. Inserting this term may implythat more is needed, but is predicated on the processes and procedures a generator currently uses and whether improvements are necessary to ensure an accurate hazardous waste determination is made. The Agency does not disagree that process knowledge and laboratory support and documentation should be sufficient in making an accurate hazardous waste determination. There is no "extra undefined, quantitative hurdle for proving `accuracy' " as much as a generator having those processes in place, whether use of knowledge or testing to support its determination.
Comment: While accurately determining whether a waste is or is not hazardous is a fundamental aspect of RCRA, there is no need to specifically require an accurate determination. Generators that have inaccurately determined that a hazardous waste is non-hazardous would be cited for violations for failing to properly manage and dispose of hazardous waste. Thus, there is already a strong incentive for generators to accurately perform hazardous waste determinations. The proposed additional requirement would only further penalize many generators by piling on additional violations, even if the generator applied due diligence in its incorrect determination that a hazardous waste is non-hazardous. In addition, although the preamble states the intent of the proposed change would not impact determinations that a non-hazardous solid waste is a hazardous waste, a generator making such a determination would be in violation of the plain language of the proposed regulation. (0201)
Response: The Agency disagrees with the above comments. EPA believes that waste determinations are of utmost importance to the success of the RCRA program and warrant an emphasis regarding generators making accurate determinations. Similarly, even if the waste may not be hazardous, "over managing" the waste is acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
Comment: EPA requests comment on why it may not be feasible to require a generator's solid and hazardous waste determinations to be accurate. Several issues come to mind with respect to this. 
o With respect to a solid waste determination, a parts washer service company entered many markets and obtained customers using a business plan where spent parts washing solvent would be directly re-used as a substitute for a commercial chemical product. Customers who thought their waste was going for direct re-use thought their waste was excluded from regulation and did not count towards their generator statue. These customers would sign certifications that their spent solvent was not hazardous waste, and that they were conditionally exempt small quantity generators. Once the company had these certifications on file, the spent parts washing solvent could be recycled in a different manner, either by reclamation or as fuel, and this could be done without telling the customer that they were not longer eligible for the exclusion. 
o Because so many exclusions from the definition of solid or hazardous waste are conditional, the disposal and recycling facility should have a reciprocal requirement to guarantee their method of management to their customers, and should have an obligation to inform their customers of any change that could cause the customer's waste to lose the exclusion. (0214)
Response: Generators have a responsibility to perform due diligence and understand as best they can what will happen to their spent solvents when the recycling facility picks up their materials. Part of that due diligence involves asking the right questions, or stated differently, trust but verify. One solution may be for the generator to have the recycling company certify that their spent parts washer solvents will be recycled in a manner that meets the applicable definition of solid waste exclusions. That way, the onus is completely on the recycling company. 
Conversely, the recycling company has an obligation to be forthcoming and tell their customers what they intend to do to guarantee their customers are in compliance with the applicable recycling regulations. They also may want to think about some type of certification to protect their customers. 

Comment: Chemical manufacturers are not required to disclose the presence of hazardous constituents in their products at levels that exceed TCLP or 268.48 limits. SDSs allow "trade secret" claims, and limit the notification requirements for constituents present at less than 1%, or 0.1% for carcinogens. (0214)
Response: This means that as a practical matter, (M)SDSs are most useful for making positive, rather than negative hazardous waste determinations. That is, SDSs can indicate the presence of TC constituents in a chemical product that becomes part of a waste, but do not provide detailed enough information to be the basis for concluding that TC constituents are not present at levels that may exceed the TC regulatory values. This is because for many wastes, TC constituents present at 1% or 0.1% concentrations could still leach in excess of the TC regulatory values. 
Comment: Detection limits can be an issue for concentrated wastes due to matrix interference. If a constituent is not detected in a waste, but the detection limit is orders of magnitude higher than the regulatory limit, how should that be dealt with? (0214)
Response: The results of such a test would not support a conclusion that the waste is not TC hazardous. Testing must have detection limits at or very close to the TC regulatory value. In cases where this is not possible for technical reasons, the generator would need to make a hazardous waste determination based on his/her knowledge of the waste, and they state or EPA would need to evaluate the determination. Information in addition to test results above the detection limits would usually need to be included in such a determination. Further, the Agency would need to agree that the test results represent the limits of technical feasibility for testing the particular waste. 
Comment: Equally, if a sample is analyzed, but quality assurance documentation is lacking or shows that the sample was not collected or preserved properly, or analyzed within holding times, how should that be dealt with? The generator often will not know that their lab cut corners. Several recent examples:
-- A testing laboratory split a sample collected for a TCLP determination, and sent the aliquot intended for zero head space extraction and VOC analysis to another lab, violating SW-846 method protocol. 
-- Another testing laboratory extracted samples that were too small, and did not correctly perform the liquid/solid separation step. Instead, both the liquid and solid portion of the waste were placed in the extraction vessel, diluting the liquid fraction improperly.
-- SW-846 should include specific guidance for sampling wastes when both bottle and zero headspace extractions will be performed. TSDF sales staff in particular tend to collect samples in a manner that does not comply with standard QA/QC requirements. Suggest that EPA publish a video (possibly through you tube?) showing generators and inspectors how TCLP extractions and analyses are performed. (0214)
Response: Generators are responsible for determining whether their waste is RCRA hazardous, and further, that determinations are accurate. Part of their obligation in making this determination is to ensure that their conclusions are based on reliable test data and/or other reliable information. For laboratory testing, especially in a compliance context, adherence to the test protocol, including all QA/QC requirements, is critical to ensuring generation of reliable data. Data generated by non-compliant testing cannot be a reliable basis for making the required hazardous waste determination (the agency has said that TCLP and other regulatory testing can provide definitive results only when the tests are performed properly). In some cases, re-testing may be necessary. In other cases, it may be possible to understand what bias may have been introduced by non-compliance with the protocol, and some qualified conclusions may be supportable, but this would occur strictly on a case-by-case basis. 
Generators who identify such performance problems should obviously contract with another lab for any needed re-testing. 
If no waste sample remains for re-testing, the generator will need to make the best supported determination possible. In doing so, they must rely on whatever other information about the waste they have that can be shown to be reliable, including-but not limited to- past testing of the waste stream for which compliant testing can be well documented. Process knowledge and other kinds of relevant information, as described at should also be considered. 
Finally, the Agency notes that updated testing guidance for TSDFs has been published recently. Further, when genuine questions about the appropriate implementation of tests may arise (which the Agency expects to occur only rarely), such questions can be addressed to state environmental agency laboratories, or EPA regional or headquarters analytical chemists for advice on the most appropriate manner for proceeding.
Comment: Specifically Stating That the Hazardous Waste Determination Must Be Accurate
The EPA requests comment on the reasons why it may not be feasible to require a generator's solid and hazardous waste determinations to be accurate and how best the Agency can make clear that generators are responsible for making an accurate hazardous waste determination. At present time there is no comprehensible means for the EPA to reasonably expect every generator to correctly complete every hazardous waste determination. Reorganization of the hazardous waste generator regulatory program to make it user-friendly is a small start but it will be no where near enough to see positive change. The Agency needs to invest time and money into educating the regulated community on the hazardous waste generator program. (0230)
Response: While the goal is for every generator to make an accurate determination for every waste stream they generate, we also realize the many challenges in achieving that goal. The Agency agrees with the comments above that new and innovative ideas are necessary so that we and the states can educate generators in making better, more accurate hazardous waste determinations.
Comment: CRWI has concerns about the requirement in the opening paragraph of 262.11 that a generator must make "an accurate determination of whether that waste is a hazardous waste..." Our concern is with the use of the word "accurate." This word means the quality or state of being correct or precise. In scientific and engineering terms, it is a measure of the degree to which the results conform to the correct value, and implies there is some measure of a statistical determination of accuracy. We do not believe that this is what the Agency intended. In addition, if the facility chooses to handle a non-hazardous solid waste as a hazardous waste, that determination is not "accurate." While it is still protective of the environment (per EPA's expressed concern 80 FR 57,945), it is not accurate. While it is unlikely that a regulatory authority would cite a facility for over protecting the environment, we believe the use of the word "accurate" is not appropriate in this circumstance. We suggest the following modification of the proposed regulatory language in 262.11.

A person who generates a solid waste, as defined in 40 CFR 261.2, must make an accurate determination of whether that waste is a hazardous waste using the following steps: (0255)
Response: Based on the above comments and others we have modified the regulatory text to incorporate why a hazardous waste determination must be accurate. Similarly, even if the waste may not be hazardous, "over managing" the waste is acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.

Section 4.2.5.6 - Maintaining hazardous waste determination records until generator closes

Introduction
As part of the proposed rule, EPA requested comment on maintaining waste determination records until closure of the facility rather than the current three years after the shipment of the waste. EPA asked for comment because the time period between inspections can often exceed three years, hence inspectors may not be able to review and examine the documentation for a particular waste determination. 
Based on the comments received, the Agency is not changing the time period that hazardous waste determination records must be maintained. Commenters were practically unanimous in opposing the extension. They believe expanding the requirement to the life of the facility exceeds the statute of limitations, and is unnecessary, unwarranted, and unduly burdensome. (0077, 0078, 0085, 0091, 0092, 0093, 0107, 0110, 0113, 0117, 0121, 0123, 0128, 0129, 0131, 0135, 0139, 0141, 0142, 0149, 0152, 0154, 0155, 0159, 0166, 0167, 0168, 0182, 0183, 0188, 0190, 0192, 0195, 0200, 0201, 0205, 0208, 0212, 0214, 0217, 0219, 0220, 0224, 0225, 0226, 0228, 0232, 0235, 0255, 0256, 0257, 0258, 0260, 0262, 0283, 0285, 0286). 
In response to all of the specific comments described below that opposed the proposed extension of time period, EPA provides the same response which is: EPA is not moving forward with this change, and thus is not changing the time period that hazardous waste determination records must be maintained. EPA provides a specific response below only to those comments that addressed a different aspect of the proposed rule other than opposition to the extension. 
Comment: If EPA adopts this revision, SQGs and LQGs could also be required to maintain these solid and hazardous waste determination records many years beyond any applicable statute of limitations. Because no enforcement actions can be brought after the statute of limitations has run, there is no legitimate justification to require a SQG or LQG to keep records beyond that limit and EPA should not expand the recordkeeping retention requirement in such a manner. (0077)
Comment: However, the length of operation of the generator's "site" is likely to far exceed the length of the process that produces any given hazardous waste stream simply due to technological innovation and normal variation in raw material inputs. Further, with the requirement of the land disposal restrictions to treat most hazardous wastes prior to land disposal of residues, records for designation of long-disposed wastes are likely of dubious value in most cases. (0078)
Comment: Colorado has a two year statute of limitations in which to take an action and a five year statute of limitations from when the event occurred, regardless of when we discovered the violation - whichever occurs sooner. Therefore requiring generators to maintain documentation for an old waste stream seems unnecessary and overly burdensome. Colorado recommends retaining the three year retention period from the date the waste was last shipped off-site. CDPHE recommends requiring the same hazardous waste determination documentation requirements for CESQGs as for LQGs and SQGs. A majority of the hazardous waste determination violations are discovered at CESQGs; this new requirement could greatly increase compliance within this sector. (0085)
Response: The Agency is not prepared to require CESQGs/VSQGs to document and keep records of their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made. 
Comment: First, AEF believes that Generators cannot adequately comment on the myriad of issues caused by the idea without regulatory text. Secondly, maintaining records are costly. EPA failed to name any reason that a generator would want to maintain records of its solid and hazardous waste determinations to support or respond to any future questions. Similarly, the Agency failed to evaluate the cost of computerizing records, subsequent updating of software, training of staff, and maintaining equipment and the space to house the equipment. Also, beyond initial costs, EPA needs to consider replacement expense, all tools becoming obsolete over time. The agency itself experienced cost overruns while implementing e-manifests, which should remind EPA how complicated and difficult it is to maintain or computerize records. Additionally, these costs will multiply as time elapses. Some of AEF's members have operations with over one hundred years of continuous operations, showing significant records retention costs, with no environmental benefit. EPA lacks authority to require storage in perpetuity of records that at some point provide no environmental benefit. (0087)
Comment: EPA has not demonstrated any significant reason for imposing such a requirement, especially considering that any time a facility determines a waste is hazardous or does not know whether the waste is hazardous or not, that facility must otherwise necessarily comply with the requirements of RCRA. Moreover, if a facility determines the waste is not hazardous but is incorrect, that facility will be in violation of RCRA requirements for the waste beginning at its point of generation. EPA also discounts a generator's knowledge of the constituents of the waste generated, a fundamental principle of the RCRA generator regulations. Therefore, USWAG strongly believes that additional recordkeeping requirements for facilities with hazardous materials determinations are unnecessary in light of the otherwise applicable provisions of RCRA. 
EPA's suggestion to require maintenance of documents detailing these determinations on site for the duration of the facility's life is unwieldy and unnecessary, especially when the waste in question is determined to be non-hazardous (0093)
Comment: The Agency's alternative option to require retention of such documentation until generator closure (rather than the proposed three years) would further exacerbate the burden on generators. See 80 Fed. Reg. at 57,945. A provision that lengthens the recordkeeping burden well past the statute of limitations (federal or state) provides little additional benefit to offset the significant burden. (0107)
Comment: Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0110)
Comment: GP opposes such a requirement, or for that matter, retention for any period beyond the current three-year rule. This would be particularly burdensome at industrial plants that change their product line frequently, e.g., at batch chemical plants, or at manufacturing plants that, because of frequent product innovation, turn over much of their product line every few years. If waste determination documentation is required for each waste stream from every product until closure at these plants, many file drawers of outdated waste determination documents would have to be retained for many years after the generation of the wastes stopped. Indeed, under the applicable RCRA Statute of Limitations, EPA only has enforcement authority to challenge noncompliant waste determinations and waste determination documentation for five years after generation of the waste. (0113)
Comment: WMA opposes a recordkeeping requirement that lasts until closure. This is an unrealistic requirement. Just as is the case with the Federal Government (IRS and a myriad of other federal agencies), private industry also loses computers and records. At our members large mining areas, portions of mine sites are often sold to multiple entities. At times some of our members have third parties operate facilities within our member facilities for experimental or other marketable processes. This requirement would lead to confusion about which entity is responsible for the files and for the historical compliance obligations. The institutional memory of those types of interactions makes it difficult to reconstruct the paper trail and responsibility trail for "life of site". (0117)
Comment: UNL also opposes the Agency's proposal to require SQGs and LQGs to maintain records of waste determinations until site closure. If adopted, such a proposal will essentially equate to a requirement to maintain records in perpetuity, particularly for the college and university sector and like institutions where it is extremely rare to close, sell, or otherwise dispose of properties. Maintaining records in perpetuity presents an extraordinarily burdensome standard with little long-term benefit. A more appropriate standard would be five-years from the date that a hazardous waste was generated, which is a common record retention term for many business related records and records typically associated with other environmental regulations such as SPCC, CAA, CWA, etc. (0121)

Comment: WRPS is not in favor of the idea regarding maintaining records of waste determinations until the generator closes the site as it would place an undue burden on generators and could require that the records be maintained for decades with no specified purpose. Since generators are allowed to keep records for any length of time beyond the currently-required three years, there is little added benefit for the generator should this become a requirement. The current three-year limit encourages regulators to inspect within a time frame that ensures that findings be made on current practices with sufficient time to correct any issue, with minimal impact to the environment. (0123)
Comment: The Chamber also disagrees with the suggestion that generators should be required to maintain waste determination documentation for the entire operating life of a facility. Depending on the specific facility, an operator might have to retain records for 25 years or longer. As a practical matter, document retention policies are corporate management decisions and should be left that way. There is no rational regulatory purpose for requiring a facility to maintain reams upon reams of paper for multiple decades at a time, well beyond the statute of limitations. (0129)
Comment: ETC supports requiring SQGs and LQGs to maintain records of their waste determinations for at least three years. If the generator wants to maintain his waste determination records until the site closes that should be at his discretion. From a liability perspective, ETC realizes there might be some value in having generators retain waste determination records for a lengthy period of time. For example, a generator may want to maintain records of its solid and hazardous waste determinations to support and respond to any questions an inspector may have about a particular waste determination.

Therefore, we encourage the agency to make such lengthy recordkeeping recommendations in the preamble but not as a proposed regulation. (0134)


Response: The Agency agrees with the comments of this commenter.


Comment: The proposed requirement is to document and maintain all waste determinations "until the generator closes its site, rather than for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage and disposal." This suggests that institutions would need to maintain records of every waste determination, including those where the waste was determined not to be RCRA-regulated. If the intent is that this applies to every container with a chemical in every laboratory, kitchen, trade shop, student room, barn, and other locations that generate any kind of waste, it will be an overwhelming task and will be without benefit. (0135)
Comment: While understanding EPA's concern that inspectors may be unable to inspect a facility within the three-year record maintenance window, Drake strongly suggests that the administrative burden on academic institutions to, in effect, indefinitely maintain waster determination records would be excessive. (0136)
Comment: This proposed requirement to document and keep all waste determinations until site closure implies that Creighton will be required to keep this information in perpetuity. This will be an overwhelming task for the typical small quantity generator such as a university with so many varying waste streams. (0141)
Comment: This suggests that institutions would need to maintain records of every waste determination, including those where the waste was determined not to be RCRA-regulated. If the intent is that this applies to every container with a chemical in every laboratory, kitchen, trade shop, and other locations that generate any kind of waste, it will be an overwhelming task and will be largely be without benefit. The added costs for unnecessary analytical testing and for training virtually every individual at a sector institution that disposes of trash will severely impact budgets and an administrative burden to manage.

--If the intent is that this provision be specific to laboratories, shops, and other areas that traditionally produce hazardous wastes, there will still be significant negative impacts. Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any increased benefit in safety or compliance.

--Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0142)
Comment: MDU agrees with USWAG that EPA's proposal to retain all records of any hazardous waste determinations, regardless of the result, for the life of the facility is an unreasonable presumption that all waste is hazardous unless documented otherwise. (0149)
Comment: Keeping determination records until the generator closes is extremely burdensome and in most cases unneeded since most materials are disposed of quickly and properly.
a. Many generators have existed for 50 to 100 years and probably will exist for at least that long moving forward, especially academic institutions. If the new determination process is approved we are looking at having hundreds of determinations per month we are looking at a major record retention issue. 
EPA states that it thinks most generators will keep their records electronically, but what happens in 30 years when technology makes the records obsolete because they can no longer be accessed from software upgrades or storage devices no longer being used (i.e. floppy disks) (0154)
Comment: Impose significant new recordkeeping and retention requirements for all hazardous waste determinations including instances where a solid waste is not hazardous. (0155)
Comment: EPA has requested comment on whether to require SQGs and LQGs to maintain records of their waste determinations until the generator closes its site, rather than for at least three years. This requirement seems unduly burdensome and unnecessary, especially if EPA does not significantly narrow the scope of the waste determinations that must be documented, as discussed in the prior comment. We recommend EPA maintain the three-year recordkeeping requirement for hazardous and non-hazardous waste generation. This is consistent with the manifest retention time and comports with Agency efforts to reduce recordkeeping burdens in its RCRA Reduction Rule. (0159)
Comment: For the following reasons, we believe that the current records retention period of three years is appropriate and should be preserved. First, Yale University has been at its current location in New Haven since I7I6. Since there is no prospect of our closure, requiring us to maintain waste determination records until Yale doses its site would require that we retain waste determination records in perpetuity, which is burdensome and unreasonable. Second, as noted above, the current § 262.11 requires that any person who generates a solid waste must determine whether that waste is a hazardous waste and prescribes the methodology for doing so. Accordingly, even in the absence of written waste determinations, an EPA inspector could still demand a demonstration of compliance with this requirement.

As explained above, universities address correct hazardous waste determinations and appropriate hazardous waste management by having procedures for the identification, collection and disposal of hazardous waste. EPA has acknowledged that such procedures ensure proper management of hazardous waste as well as the safe disposal of wastes that are not RCRA regulated. Considering this-rather than prescribing new and burdensome recordkeeping for solid and hazardous waste determinations-we recommend that EPA instead require that generators develop and implement appropriate procedures, modeled after § 262.207(b) of Subpart K. We believe these procedures effectively substitute for records of waste determinations because they explain what university wastes are RCRA regulated and how they are managed safely and compliantly. (0166)
Response: At this time, in lieu of requiring non-hazardous waste determination documentation and keeping records for the life of the facility, the Agency is considering initiating a dialogue with industry and states to identify the root causes of this problem and identify potential solutions. Such solutions may include establishing best management processes and practices, as discussed above, along with the possible development of generic decision tools or other technical assistance information that can assist generators with the process of evaluating whether the solid waste they have generated is a hazardous waste.

Comment: Notwithstanding our forgoing objections regarding the need to document "non-hazardous" waste determinations, SSINA supports the proposed three year timeframe for retaining waste determination records in 40 C.F.R. §262.11(e), which is consistent with the existing three record retention requirement for hazardous waste manifests. While the agency seeks comment on maintaining waste determination records until site closure, that suggestion should be dismissed as unwarranted in light of the five statute of limitations for RCRA enforcement actions. There is no rational justification for burdening facilities with a lifetime record retention requirement or for extending the record retention requirement beyond three years. (0167)
Comment: In the preamble to the proposed rule, EPA requests comment on "requiring SQGs and LQGs to maintain records of their waste determinations until the generator closes its site, rather than for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, and disposal." See 80 Fed. Reg. at 57,945. The Agency suggests that such extended recordkeeping would be useful "to support and respond to any questions an inspector may have about a particular waste determination  -  even if is more than three years from when it was ... generated." Id. However, it is difficult to understand why an inspector would be asking about a hazardous waste determination for a waste that has not been generated or managed at the site for over three years. Even if a misclassification were found at that point, there would generally be nothing that the inspector could do about it, in light of statutes of limitation on any potential enforcement claims. In addition, any conceivable environmental harm from such an old misclassification could probably not be remedied. Indeed, this is why EPA originally established a three-year record retention rule. See 45 Fed. Reg. 12,724, 12,730 (February 26, 1980) (responding to "comments ... suggest[ing] various lengths of record retention, varying from a year to 25 years," by saying that "three years ... provides a sufficient period for the Agency's enforcement and implementation purposes"). For this reason, there appears to be no reason to require records of hazardous waste determinations to be kept until facility closure.

Even if the extended retention period could be justified for some generators, it should not be applied to the retail industry. As discussed in Section 5.1.4 above, retail stores commonly handle tens of thousands of SKUs, a substantial percentage of which change from year to year. Keeping records on every SKU that was ever held in inventory for the entire life of a store  -  which in many instances may stretch out over several decades  -  is simply impossible. Indeed, this would likely be true even if EPA were to limit this document retention requirement to hazardous waste determinations. While only a portion of the SKUs sold by a store are likely to be hazardous, for some retailers the percentage could be quite high. Even where the hazardous percentage is only moderate (e.g., 10%), keeping records for the entire life of a store would be problematic. Most retailers find the current three-year requirement challenging enough. (0168)
Comment: DEQ disagrees with the proposed idea for a facility to maintain its waste determinations until the facility closes. This requirement provides no benefit to either the facility or the regulatory agency, since no other documentation of this waste would be required to be held by the facility until closure. DEQ believes this proposed revision would simply open the facility to a potential area of non-compliance while creating no real benefit for the facility or the regulatory agency.

DEQ disagrees with the idea of requiring a CESQG to maintain documentation of hazardous waste determinations, for the same reasons discussed in Section VIII.B.6. (0182)
Comment: KULC-EHS opposes the Agency's proposal to require SQGs and LQGs to maintain records of waste determinations until site closure. If adopted, such a proposal will essentially equate to a requirement to maintain records in perpetuity, particularly for the college and university sector and like institutions where it is extremely rare to close, sell, or otherwise dispose of properties. Maintaining records in perpetuity presents an extraordinarily burdensome standard with little long-term benefit. A more appropriate standard would be five-years from the date that a hazardous waste was generated, which is a common record retention term for many business related records and records typically associated with other environmental regulations such as SPCC, CAA, CWA, etc. (0183)
Comment: There are definite drawbacks to EPA's proposal. The potential environmental benefit of extending the retention period for the life of the facility is difficult to quantify. The proposal would also add to the already considerable recordkeeping burden borne by generators. We understand that generators may have various reasons for wanting to retain records beyond the current required three-year retention period. EPA notes, in particular, the situation where a facility may not have been inspected during the three-year period. That said, processes at a facility will undoubtedly change over time and there would be little point in maintaining records for waste that might have ceased to be generated decades earlier. In addition, statutes of limitation would likely have passed for any hazardous waste management violations. 

On the other hand, extending the retention period until the generator facility closes could have advantages to both the generator (and/or its successors) and regulatory agencies. The RCRA corrective action process is exacting and, at times, onerous. We can imagine that having a complete historical record of waste generated and stored at the facility might be useful to the entities responsible for carrying out and overseeing the facility's closure. Such records could also be valuable to future potential purchasers of the facility.

Lastly, as the agency notes, current electronic recordkeeping and storage systems would allow for the long-term retention of records without much difficulty. This requirement, including the computerization and storage of records will, however, fall harder on small businesses. Contrary to EPA's assumption in the NPRM, even smaller entities may produce a great number of waste streams, and the agency should account for this in its decision-making. (0188)
Comment: The current language, requiring hazardous waste determination records for hazardous wastes be kept for three years after the waste ceases to be generated and disposed, is more feasible and relevant to on-site processes. Keeping these records until the facility closes is not relevant to the processes at the site and could become overly burdensome to facilities with multiple processes that change and multiple lab spaces that have fluctuating research projects. (0190)
Comment: SOCMA is also mildly astonished by the proposal that generators retain all records regarding waste determinations at a facility until that facility closes. Some RCRA generator facilities have been in operation since the 19th Century. With any luck, many current facilities will be in successful operation for decades and decades to come. These facilities could be tasked with storing enormous volumes of waste documentation.

There is no reason for a facility to retain generator records that long. As a practical matter, there is little reason to retain waste determination records for any waste after that waste has been treated or destroyed  -  at that point, it no longer exists and cannot pose any continuing harm. There may be some logic to retaining records for wastes disposed of in landfills or surface impoundments, but the Superfund statute already provides sufficient incentive for a facility to maintain sufficient records to characterize such wastes. (0192)
Comment: NMA opposes a recordkeeping requirement that lasts until closure. This is too burdensome for SQGs and LQGs, even for those facilities that may computerize their records. EPA should not impose a large, open-ended recordkeeping burden that will have no measurable benefit for a generator's current compliance with RCRA. EPA should retain the three-year timeframe, consistent with other RCRA recordkeeping provisions, such as manifest records (Section 262.20 and Section 262.40). This timeframe is also consistent with the typical scope of State and EPA inspections. A different recordkeeping requirement for waste determinations is unnecessarily confusing. Additionally, it creates a long-term document management problem for generators. Typically, long-term physical document control requires a third-party that controls the documents off-site. Also, long-term document control relies on an individual's cataloguing that may outlast the individual and complicates finding the specific document(s) in the future.

Furthermore, many record-retention laws have a fixed timeframe of a few years (e.g., based on applicable statutes of limitations for civil and criminal claims), so an open-ended recordkeeping obligation (that technically will never end) would conflict with the detailed, shorter-term recordkeeping policies of many generators. Finally, if EPA were to require generators to maintain records for more than three years, how far back would inspectors be able to request data from facilities? Would this provision lead to potential retroactive enforcement action on facilities? If EPA extends the recordkeeping requirement until a generator closes its site, is imperative that EPA implement restrictions on how far back an inspector may seek documentation to maintain a fair enforcement process. (0200)
Comment: This proposal could potentially require some SQGs or LQGs to maintain waste determination records for decades, if not longer. There is no additional environmental benefit by requiring SQGs and LQGs to maintain waste determination records until closure of the site beyond three years from the date that a waste last sent to on-site or off-site treatment, storage and disposal. Thus, this proposal is unnecessarily burdensome and only serves to create an ongoing, recordkeeping obligation for SQGs and LQGs that would be enforceable beyond the statute of limitations of any underlying violation (e.g., making an inadequate or incorrect hazardous waste determination or a violation resulting from incorrectly managing or disposing hazardous waste).
(0201)
Comment: This record retention proposal will require that they retain records for the entire life of the facility and beyond. Given the expanded scope of records proposed by EPA, this will result in an unmanageable volume of records, necessitating off-site storage solutions and time lag for retrieval if requested during an inspection. We recommend that records be maintained for three years and remove the language "after the last day of generation." (0205)
Comment: Purdue believes that documenting all waste determinations for a minimum of three years as proposed in §262.11(e) would be extremely burdensome in an academic setting such as Purdue. (0208)
Comment: EPA has requested comment on requiring small quantity generators (SQGs) and large quantity generators (LQGs) to maintain records of waste determinations until the generator closes it site, rather than for three years. This is unnecessary and burdensome. There is not rational reason to retain these records well beyond the statute of limitation for enforcement or interest in these records. EPA should not expand the record keeping retention requirement. (0212)
Comment: Record retention - waste analyses and profiles should be for three years from when the waste was last sent off site for disposal. (0214)
Comment: Many of the States believe there is no added benefit to having generators keep their waste determination records until closure. Some States believe there is merit to requiring all generators, including CESQGs, to maintain these records for at least 3 years. However, one State disagrees with the idea of requiring a CESQG to maintain documentation of hazardous waste determinations. This State feels there would be no environmental benefits attained from this requirement, as a lack of facility documentation does not necessarily mean the facility has improperly disposed of their hazardous wastes. (0217)
Response: The Agency is not prepared to require CESQGs/VSQGs to document their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made. 
Comment: This is an unacceptable proposal. Large complex facilities such as mines and many other facilities in a spectrum of industries generate a wide variety of wastes. As technologies, processes, and materials improve with time, products are continually being replaced with new products. The waste materials change right along with the products so maintaining waste determinations until the facility closes would be an extreme burden on industries. These determinations, over-time would become nearly impossible to maintain and keep organized.
(0220)
Comment: The FRRC believes there is absolutely no reason EPA should require that these records should be kept throughout the life of the facility. Some of these facilities exist for decades and decades, and it is extremely burdensome to require such records be maintained for essentially forever. More importantly, RCRA enforcement actions are subject to a statute of limitations, and there is no reason to require a facility to maintain these records beyond that timeframe. (0224)
Comment: TCCI strongly opposes the maintenance of generator characterization data for a period of time greater than 3 years for SQGs and LQGs. However, Tennessee does require that the most recent characterization be maintained until the waste stream is no longer generated even if it is greater than 3 years old. A requirement to keep all waste stream characterization information for the life of the facility is excessive and extremely burdensome. (0225)
Response: The Agency believes maintaining a facility's most recent characterization of a solid 
and hazardous waste generated, even if it is greater than 3 years old, is a best management practice that should be considered by other facilities, if it is not already occurring. 
Comment: If the intent is that this provision be specific to laboratories, shops, and other areas that traditionally produce hazardous wastes, there will still be significant negative impacts. Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any benefit in safety or compliance. The proposed rule also appears to weaken the use of generator knowledge for making hazardous waste determination by requiring that the basis of that knowledge is documented. This is unnecessarily burdensome, and the EPA already has the authority to challenge generator knowledge without the added recordkeeping.

While opting into Subpart K, for those institutions in states that allow it, would relieve this requirement for laboratories, it would still apply to our maintenance, cleaning, and other non-laboratory activities.

Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0226)
Comment: For the following reasons, we believe that the current records retention period of 3 years is appropriate and should be preserved. First, Arizona State University has been at its current location in Tempe, AZ since 1885. Since there is no prospect of our closure, requiring us to maintain waste determination records until ASU closes its sites would require that we retain waste determination records in perpetuity, which is burdensome and unreasonable. Second, as noted above, the current§ 262.11 requires that any person who generates a solid waste must determine whether that waste is a hazardous waste and prescribes the methodology for doing so. Accordingly, even in the absence of written waste determinations, an EPA inspector could still demand a demonstration of compliance with this requirement.

As explained above, universities address correct hazardous waste determinations and appropriate hazardous waste management by having procedures for the identification, collection and disposal of hazardous waste. EPA has acknowledged that such procedures ensure proper management of hazardous waste as well as the safe disposal of wastes that are not RCRA regulated. Considering this, rather than prescribing new and burdensome recordkeeping for solid and hazardous waste determinations, we recommend that EPA instead require that generators develop and implement appropriate procedures, modeled after§ 262.207(b) of Subpart K. We believe these procedures effectively substitute for records of waste determinations because they explain what university wastes are RCRA regulated and how they are managed safely and compliantly. (0228)

Response: At this time, in lieu of requiring non-hazardous waste determination documentation and keeping records for the life of the facility, the Agency is considering initiating a dialogue with industry and states to identify the root causes of this problem and identify potential solutions. Such solutions may include establishing best management processes and practices, as discussed above, along with the possible development of generic decision tools or other technical assistance information that can assist generators with the process of evaluating whether the solid waste they have generated is a hazardous waste.
Regarding the comment recommending that EPA instead require that generators develop and implement appropriate procedures, modeled after§ 262.207(b) of Subpart K, EPA encourages college and universities to use Subpart K, which was specifically designed to address the concerns of this sector, including the types of concerns expressed in this comment. 
Comment: The MPCA does not support the proposed requirement for SQGs/LQGs to maintain hazardous waste evaluation records until the site closes. Previously discussed changes to 40 CFR 262.11(e) already would require generators to retain their hazardous waste records for three years from the last date a waste was generated. Therefore the MPCA believes the EPA's concern expressed at 80 FR 57945 that "...Because an inspector may not be able to inspect every SQG and LQG within three years from when the solid or hazardous waste was first generated, a generator may discard its waste determination records prematurely..." is misplaced, since the EPA therein assumed that evaluation records would only be required to be maintained for three years from when a waste was first generated, not the last date as actually proposed. Thus, unless a site generated a hazardous waste, then immediately ceased doing so and did not resume it over the next three years, a very unusual occurrence, waste evaluation records would reasonably be expected to be available for any EPA or state inspection in a reasonable time. The EPA continues to repeat this application error through the discussion of this proposed mandate.

The MPCA's concern regarding an effectively open-ended (as long as a site continues operating, its record retention requirement would continue in perpetuity) records retention requirement is on relevance and reasonableness - under the proposed mandate, a site could be considered in violation for failing to be able to provide information about a waste generated 20 years previously that hasn't been generated or handled in a decade. Though as business best management practices the MPCA does encourage hazardous waste generators to retain hazardous waste records for as long as possible, particularly for SuperFund and tort liability defense, the MPCA believes that such a recommendation is very different from a regulatory requirement. The MPCA believes that a standard of evaluation record retention of three years from the date the waste was last generated is sufficient for regulatory assurance purposes.

The MPCA also here comments on the EPA's invitation for feedback considering CESQG/VSQG evaluation document retention. As discussed in the MPCA's comment above (VIII., B., 6.), the MPCA has already long required such preparation and retention by VSQGs of evaluation documentation, and has observed that the great majority of VSQGs are well able to meet this standard without undue burden. The MPCA considers that requiring VSQGs to evaluate their waste, as the EPA's nationwide standards already do, and this proposal would clarify, without also requiring retention of the records underlying and documenting that evaluation is largely pointless - without records, verifying the sufficiency and correctness of a VSQG generator's evaluation, by either the generator themselves or a regulator, is extremely difficult if not impossible. As already suggested by the MPCA above, the MPCA recommends that the EPA strongly consider ensuring that VSQGs retain documentation of evaluations regarding waste they believe is non-hazardous. (0232)
Response: The Agency is not prepared to require CESQGs/VSQGs to document and keep records of their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made. 
Comment: CRWI believes that three years is an appropriate length of time to retain records for waste determination. This length of time is adequate to allow inspectors to determine if the facility is properly characterizing the waste and maintaining the required records. In the past, the Agency has reduced the recording keeping requirements (e.g., see the 2006 Burden Reduction rule (64 FR 16,862, April 4, 2006). In this rule, the Agency made a number of changes in the recordkeeping requirements that resulted in a three year record retention requirement. These are summarized in Table 2 at 64 FR 16,866. The purpose of the Burden Reduction rule was to remove requirements that were not necessary. We believe that the current three years records retention requirements falls in line with the Agency's policy on recordkeeping as discussed in the Burden Reduction Rule. (0255)
Comment: While MU understands EPA is not proposing a change at this time, MU wishes to be clear it does not support a recordkeeping burden tied to the existence of the generator. The current requirement of three years retention extends automatically in the event of an unresolved enforcement action regarding a waste determination. For some generators, such as public universities, the generator will never "close" and this suggestion would become a permanent recordkeeping requirement that could continue for centuries. MU would support a reasonably longer record retention policy with a defined end such as "...until the generator closes its site or 20 years, whichever comes first." (0256)
Comment: EPA's proposal to require generators to retain outdated documentation for 50, 75, or 100 years places a burden on the regulated community without providing any environmental benefit. The Agency's presumption that records are kept electronically (and therefore retention is not burdensome) is not universally correct. In addition, as technology and software changes, any initial electronic versions may no longer be supported or accessible, requiring the regulated community either to keep paper copies of documents (which are not easily retrievable or searchable over time) or to continually change electronic documentation to new software as it emerges simply to meet this retention requirement.

Furthermore, the proposal's documentation retention requirement may not have the desired outcome if the corresponding waste shipment records are not also retained until the generator closes its site, which the EPA does not address in these proposed revisions. However, if these waste determination records will always be subject to inspection, generators will be compelled to retain waste shipment records for the same period of time, thus the proposal will unintentionally increase the burden being placed upon a generator to retain records relating to waste determinations and disposal. As an alternative that would be more practical and less burdensome to the regulated community, the City urges EPA to consider only extending the time for retaining the waste determinations from, for example, three years to five years. (0257)
Response: As stated above, the Agency is not changing the time period waste determination records must be maintained. 
Comment: If the intent is that this provision be specific to laboratories, shops, and other areas that traditionally produce hazardous wastes, there will still be significant negative impacts. Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any benefit in safety or compliance.

The proposed rule also appears to weaken the use of generator knowledge for making hazardous waste determination by requiring that the basis of that knowledge is documented. This is unnecessarily burdensome, and the EPA already has the authority to challenge generator knowledge without the added recordkeeping.

While opting into Subpart K, for those institutions in states that allow it, would relieve this requirement for laboratories, it would still apply to our maintenance, cleaning, and other non-laboratory activities.

Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0258)
Comment: We also support requiring LQGs, SQGs, as well as CESQGs to maintain records of their waste determinations until the generator closes its site, rather than for at least three years from the date that the waste was sent for treatment, storage, or disposal. (0264)
Response: Upon evaluation of all comments, the Agency agrees with those commenters
that believed that expanding the waste determination records requirement to the life of the facility is unnecessary, and unduly burdensome. EPA is thus not moving forward with the change. Similarly, the Agency is not prepared to require CESQGs/VSQGs to document their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made. 
Comment: The MPCA does not support the proposed requirement for SQGs/LQGs to maintain hazardous waste evaluation records until the site closes. Previously discussed changes to 40 CFR 262.11(e) already would require generators to retain their hazardous waste records for three years from the last date a waste was generated. Therefore the MPCA believes the EPA's concern expressed at 80 FR 57945 that "...Because an inspector may not be able to inspect every SQG and LQG within three years from when the solid or hazardous waste was first generated, a generator may discard its waste determination records prematurely..." is misplaced, since the EPA therein assumed that evaluation records would only be required to be maintained for three years from when a waste was first generated, not the last date as actually proposed.
The MPCA's concern regarding an effectively open-ended (as long as a site continues operating, its record retention requirement would continue in perpetuity) records retention requirement is on relevance and reasonableness - under the proposed mandate, a site could be considered in violation for failing to be able to provide information about a waste generated 20 years previously that hasn't been generated or handled in a decade.
The MPCA believes that a standard of evaluation record retention of three years from the date the waste was last generated is sufficient for regulatory assurance purposes. (0281)
Comment: ATA would also like to express its opposition in response to the EPA's request for comment on requiring SQG's and LQG's to maintain records of their waste determinations until the generator closes its site, rather than the current three year maintenance requirement.
If generators are required to maintain solid and hazardous waste determination documentation until the generator site is closed, the space required for either hardcopy or electronic storage would be massive and not economically feasible. Furthermore, for carriers that generate waste in transit, this requirement raises additional concerns, including how the carrier would determine if the generation "site" has been closed. For these reasons, the EPA should maintain its existing requirement that generators maintain hazardous waste determination records for three years from the date the waste was generated. However, should the EPA implement this document retention requirement, it should either issue guidance or provide an exemption for carriers that generate waste in transit for the reason stated above.
ATA does not take a position at this time as to whether or not to impose such a requirement. However, to the extent a retention requirement is applied to VSQG's, the requirement should not extend beyond three years from the date of waste generation, due to storage concerns as described above.
EPA should retain the three year requirement for hazardous waste generators to preserve documents pertaining to solid and hazardous waste determinations and not require generators to maintain those records until the generator closes;

To the extent that EPA wishes to apply the waste determination document retention requirement to CESQGs, that requirement should not exceed three years from the date of waste generation. (0283)
Response: The Agency is not prepared to require CESQGs/VSQGs to document their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made. 
Comment: At FR Vol. 80, No 186 (57945/3), the Agency requests comment on adding provisions to 262.11 requiring SQGs and LQGs to maintain records of their waste determinations until the generator closes its site. This is a perfect example of a proposed requirement that is very difficult to comment on without being provided proposed regulatory language. Because of the multitude of potential impacts and complications associated with such a requirement, both the requirement itself and EPA's intent are not clear in the proposal. The Agency failed to provide any reason a generator would want to maintain records of its solid and hazardous waste determinations to support or respond to any future questions. (0286)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
 
Comment: EPA recommends that records be kept until facility closure instead of the mandatory three years. This could result in an unmanageable amount of records for small entities. It would be helpful to have additional guidance on specifically which types of records should be kept beyond the required date so this does not become overly burdensome. (0235)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their hazardous waste determinations until the facility closes for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Section 4.2.5.7 - Hazardous waste determination electronic decision tool

The Agency requested comment on the utility of developing an electronic tool to assist generators in making a hazardous waste determination. Comments fell into three categories: (1) unlikely to be useful or of limited value; (2) useful and supportive and (3) alternative approaches to what was proposed. 
Unlikely to be useful or of limited value (0077, 0078, 0089, 0092, 0094, 0134, 0152, 0182, 0214, 0217, 0219, 0232, 0255). A majority of commenters stated that developing a waste determination electronic tool would not be a useful effort and would be of limited value. Several commenters specifically questioned whether an accurate waste determination decision tool could be developed for facilities with complex operations, or developing a tool with a "one-size fits all" approach. (0077, 0089, 0094, 0182, 0217, 0232, 0241, 0255). A few commenters questioned the implications of developing an electronic tool that resulted in inaccurate waste determinations and whether either the generator or developer would be subject to an enforcement action, in which case it would have limited value to the regulated community (0078, 0094, 0214).     
One commenter (0219) questioned the tool's feasibility since no commercial entity has attempted to develop such an electronic tool suggesting that it may not be feasible. This commenter questioned EPA's ability to successfully develop an electronic tool that would capture all of the waste determination nuances. Consequently, at most, such a tool should be issued as a compliance assistance tool, i.e., as guidance, instead of as a mandated program that every generator must use and abide by. Very importantly, even if the tool were generally very comprehensive and accurate, the authorized states would need to accept its use by generators before generators would be able to confidently rely on it. 
Useful and supportive (0085, 0139, 0154, 0178, 0189, 0248, 0251, 0284). Conversely, several commenters supported development of an electronic waste determination decision tool, either with or without caveats. However, Colorado also recognizes the difficulty of developing such a tool; hazardous waste determination can be very facility/process specific and the development of a tool that is more than cursory in nature could prove too difficult. However, an on-line tool that could help especially SQGs and CESQGs (VSQGs) for common waste streams could prove valuable. (0085)

This tool should be promoted and shared to the regulated community during compliance inspections, especially in situations where the generator is inadequately performing waste determinations. (0139)

An electronic tool to help with waste determinations would be helpful but should not be the use of it must not be made mandatory. (0154)
One commenter stated that if EPA decides to pursue the development of a tool like this, the tool should be designed in such a way that it can be easily adapted to more stringent and broader-in-scope state requirements. .Any tool developed by EPA should not only address the possible application of exemptions in 40 CFR 261.4, but also those in §261.2 (especially 261.2(e)), 261.6, 273, and 279. This commenter also believes it should be done the other way around. That is, the tool should first determine if the waste is listed or characteristically hazardous, and then determine if it is eligible for one of the exemptions listed above.
The tool should provide the user with some sort of output that documents the characterization process, including the generator's answers to the key questions that produced the end result. (0178)
Another commenter supportive of developing an electronic waste determination Tool recommended that this tool be available online and via a downloadable app. A decision tree tool that guides the user through the process will de-mystify the task for smaller businesses that don't have professional environmental staff. We expect that the accuracy of waste determinations will dramatically increase with the use of a tool. (0248)
Alternative ideas (0134, 0181, 0213, 0216, 0235)

Rather than spend money developing a new electronic hazardous waste determination tool, two commenters recommended the Agency reactivate the RCRA Call Center. The Call Center served as a great tool for industry as it allowed companies to call in with specific questions regarding waste generation and disposal that were answered by staff who were very familiar with the laws and regulations governing industry. Having this system re-established would be very beneficial to industry. (0134, 0181)

Two commenters noted that many Treatment, Storage, and Disposal Facilities (TSDFs) have developed efficient systems for determining whether a solid waste is a hazardous waste, and encourages EPA to develop the hazardous waste determination decision tool in conjunction with TSDFs. (0213, 0216)
One commenter recommended a coordinated educational strategy involving state and EPA RCRA programs, waste haulers and the SBEAP/SBOs. The strategy could include online resources reminding generators that a waste determination needs to be made, explaining how to do it in simple terms, helping quantify hazardous waste generated for a given calendar month and determining when and how to notify the state and/or EPA. For instance, EPA could provide grants to states to develop electronic systems for waste determination. (0235)

Response: EPA agrees with those commenters who stated that developing a complex electronic waste determination decision tool would not be very efficient and effective. We agree that many waste determinations are site-specific and therefore almost impossible to model. We also can understand why generators would be hesitant to use an electronic tool if the determination was found not to be accurate and they were cited for a violation. However, as we stated very clearly in the preamble, it's the generator's responsibility to make a hazardous waste determination. Using an electronic tool may help them in that decision, but if an electronic waste determination tool was ever developed (whether by the private sector or EPA), generators would have to understand its limitations if they used it to make waste determinations.  
The Agency also agrees with those commenters that suggested opportunities may exist for developing an electronic waste determinations tool capturing common waste streams or families of common waste streams such as solvents, acids and possibly metal bearing waste streams. 
We also agree that if a tool  were developed, such a tool should provide the user with some sort of output that documents the characterization process, including the generator's answers to the key questions that produced the end result. We also agree that if the Agency were to develop an electronic tool it would not be mandatory as much as another source of information that could help generators make more reliable and accurate waste determinations. 
As for alternative approaches, reestablishing the RCRA Hotline or call center is also very expensive, recurring activity for which funding and other resources would not be available. If the Agency were to move forward with developing an electronic tool, coordinating and understanding TSDF decision tools would likely be part of the developmental process.    
The Agency will also take under advisement in our future work in this area the commenter's recommendation that we develop a coordinated waste determination educational strategy involving state and EPA RCRA programs, waste haulers and the SBEAP/SBOs.

Section 4.2.5.8 - Other

Comment: We also believe that waste determinations should be made by analytical testing every two to three years, even when the generator believes that the waste stream is consistent. Small changes in process or machine parts may lead to different waste composition and generators are often unaware of which changes could impact a waste determination. We believe that writing a list of specifications for when to re-test/re-determine the nature of a waste stream would be an impossibly complex undertaking, and that generators would not read or follow the inevitably highly detailed document that could be produced. Instead, we believe that waste determinations should be good for a limited period of time (two or three years) and that new waste determinations should be made and documented at regular intervals. (0082)
Response: The Agency agrees that as a best managment practice, generators may want to re-visit past waste determinations periodically to validate a previous determination, but a better best management practice may be to have processes and procedures in place to conduct a new waste determination any time there is a change in process materials/chemicals and changes in the actual production process.  

Comment: Rather than eliminating 262.40(c), it could reference 262.11(e) recordkeeping requirements for waste determinations, so that someone looking for all the recordkeeping requirements in 262.40 would find the 262.11(e) requirement as well. Also, 262.44 references 262.40(c), so you will want to make a conforming change there if you do eliminate 262.40(c). Reference to 262.11(e) should be added to section 262.44 and reference to 262.42(c) may also be missing from 262.44. (0082)
Response: The Agency agrees with this comment and maintained 40 CFR 262.40 (c). 
Comment: The agency requested comments on particular families of solid waste should be excluded from this requirement if adopted.

:: For entities such as educational institutions which provide and/or oversee housing for individuals that portion of the facility occupied by such individuals.

:: Waste from restaurants or other dining facilities.

:: Landscape waste such as grass clipping, tree trimmings, etc. (0097)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Subtitle C of the Resource Conservation and Recovery Act provides for the regulation of hazardous waste. If EPA wishes to pursue the documentation of non-hazardous waste management it should do so under the authority of Subtitle D. (0104)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: TDEC further recommends that recordkeeping requirements associated with waste characterizations be made applicable to all generator categories, not just SQGs and LQGs. CESQGs also have the regulatory responsibility of being correct in hazardous waste determination. (0116)

Response: At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination.
Comment: In these cases, the inspector can determine the basis of the generator's determination and the adequacy of the determination through interview. A written record is unlikely to provide additional information than what is available to the inspector through the interview process. (0121)
Response: The Agency disagrees with this comment since there is no guarantee that the individual who made the waste determination will be available during the inspection, remembers the reasons why the waste is a hazardous waste or not. The worker may not even work there anymore. A written waste determination is always preferable, and is required as part of the recordkeeping regulations.
Comment:  UNL acknowledges that there are situations where most of the information proposed by the Agency is important due to unique circumstances. As it stands today, the onus is on the generator to justify their waste determination (both whether a solid waste is a hazardous waste and the information necessary to support a waste determination regardless of whether a solid waste is determined to be a hazardous waste) to the satisfaction of an inspector of the Agency or delegated authority. The generator should be responsible to decide whether the situation is unique enough to justify a written record and the minimal content of that record to satisfy an inspector. The generator already has incentive to do so to avoid allegation of non-compliance.  (0121)

Response: With respect to documenting non-hazardous waste determinations, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Regarding the second part of this comment, the Agency disagrees and is required as part of the recordkeeping regulations at 40 CFR 262.40 (c).
Comment: 5.1.2 EPA's Proposal Is Deficient under the Administrative Procedure Act Because It Fails to Reference Legal Authority for Requiring Recordkeeping for Non-Hazardous Waste Determinations

As noted above, EPA lacks legal authority under RCRA Subtitle C to require recordkeeping for non-hazardous waste determinations. We also do not believe the Agency has any other legal authority for such a requirement. If, nonetheless, EPA believes it has legal authority, it would still be precluded from finalizing the current proposal, because it fails to meet fundamental requirements of the Administrative Procedure Act ("APA").

Section 553(b)(2) of the APA requires that a notice of proposed rulemaking must include a "reference to the legal authority under which the rule is proposed." See 5 U.S.C. § 553(b)(2). EPA purports to provide such a reference on the second page of the preamble to the proposal. See 80 Fed. Reg. at 57,919. However, it cites only to certain provisions of Subtitle C. Thus, the Agency cannot rely on any possible authorities that may exist outside RCRA. In addition, if EPA somehow believes that the referenced provisions provide adequate legal authority, it must explain how it believes such provisions do so, in order to provide the public a meaningful opportunity to comment. The Agency cannot proceed with the proposed requirement based on its current proposal. (0168)
Response: The Agency disagrees with the above comment. The commenters are incorrect. The Agency has the authority under sections 3007 and 2002 of RCRA to require such records be kept, but instead has chosen not to finalize our use of such authority in this case and rather follow the alternative approach discussed below. 

Specifically, RCRA section 3007 allows us to gather information about any material when we have reason to believe that it may be a solid waste and possibly a hazardous waste within the meaning of RCRA section 1004(5). A generator will not know definitively whether a waste that has potential to be hazardous is hazardous or non-hazardous unless it identifies the waste and documents that identification, even if the waste turns out to be non-hazardous. Moreover, RCRA section 2002 also gives EPA authority to issue regulations necessary to carry out the purposes of RCRA. The intent of the proposed requirement to document non-hazardous waste determinations is to provide basic information to EPA about the potentially hazardous nature of the waste that is generated (even if it is ultimately determined to be non-hazardous) in order to ensure its proper management, enable regulatory agencies to monitor compliance adequately and to ensure appropriate environmental protection. 

Comment: 5.1.5 Retailers Should Be Exempted from Any Final Requirement to Keep Records on Non-Hazardous Waste Determinations

If EPA, despite the arguments above, decides to move forward with its proposal to require generators to keep records of their non-hazardous waste determinations, it should exempt the retail sector from that requirement. As discussed above, the burden on the retail sector would be overwhelming, primarily because retailers  -  unlike other generators  -  may have thousands of different, individual "waste streams" because of the large numbers and varieties of consumer products that retailers carry (even though each "waste stream" might only have a few unsold or returned items in it for any given year), and these "waste streams" may change significantly from year to year. Thus, the total amount of waste generated by the retail sector is almost negligible in comparison to the wastes generated by other industries -- probably less than 0.1% of the total, as discussed in Section 4.2 above.

As a policy matter, it simply makes no sense to impose such extreme costs on the retail sector, just to provide some marginal additional assurance that less than 0.1% of the wastes being generated in the country are being properly characterized. To prevent such a misallocation of resources, EPA should exempt retailers from any final requirement to keep records on non-hazardous waste determinations. (0168)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 5.2.4 The Proposed Requirement that the Record "Comprise the Generator's Knowledge" Is Linguistically Awkward, Impermissibly Vague, and Potentially Inconsistent with Due Process

Under the proposed regulatory text, the records of hazardous and non-hazardous waste determinations must "comprise the generator's knowledge of the waste." See 80 Fed. Reg. at 57,993 (to be codified at 40 C.F.R. § 261.11(e)). We frankly are unsure what purpose this phrase serves or what it is intended to mean. The rest of the proposed regulatory language, which specifies what must be in the record and that it must support the generator's determination, would appear to be sufficient for EPA's purposes. The Agency presumably intends the additional language to have some meaning, but what that meaning might be is difficult to divine.

Our concern is that EPA may be intending to require that the records include the entirety of the generator's knowledge of the waste, such that the generator would be precluded during an inspection or an enforcement action from presenting any additional information about the waste from outside the record to demonstrate that the waste is non-hazardous. If this is what the Agency means, we believe it would violate the Due Process Clause of the U.S. Constitution, by denying generators the means to defend themselves. Such a provision would also encourage and effectively dictate that generators stuff their records with every imaginable piece of information about their wastes, so as to ensure that such information could be called upon if needed in the future. This would make the already onerous recordkeeping requirement virtually untenable.

Finally, in the event that EPA intends the "comprise" language to be interpreted in this way, the Agency has "hidden the ball" in its proposal, thereby failing to provide the public adequate notice and opportunity to comment, as required under the APA. Thus, this language should be deleted in any final rule. (0168)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 5.2.5 The Proposed Requirement for a New Record Whenever a Waste "May Have Changed" Would Be Unworkable, Inasmuch as It Would Mandate Perpetual Development of Records

EPA has proposed to require that each waste be subjected to a repeat hazardous waste determination "at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." See 80 Fed. Reg. at 57,992 (proposed to be codified at 40 C.F.R. § 262.11(a)). Since the Agency is also proposing to require a record for every determination, the combined effect would apparently be to require a record whenever a waste "has, or may have, changed."

Such a rule would be wholly unworkable. Arguably, a waste "may have changed" at almost any moment, both when something happens to it (even something minor, such as shaking or opening of a container) and when nothing happens to it (due to things such as settling, exposure to sunlight, gradual degradation, or spontaneous chemical changes). This is especially true, given that the proposal refers to any potential change in properties, whether such changes may be material to classification of the waste or not. Ordinarily, generators might be expected to make routine judgments about which, if any, of these moments might warrant a new determination of hazardousness or non-hazardousness. However, under the recordkeeping requirement, any time that the generator thinks about whether the waste "may have changed," it would be obligated to prepare a new record of the determination. In fact, a new record would be required even when the generator doesn't think about it, whenever the waste "may have changed" (which, as noted above, could be always). The generator would be forced into a perpetual state of record writing. EPA clearly cannot proceed down this path. (0168)
Response: The Agency disagrees with the above comments. This issue was first discussed in 1980 (45 FR 33095-96, May 19, 1980); i.e., that the point of generation is identified as the point at which the material is first identified as a solid waste under RCRA, before any dilution, mixing, or other alteration of the waste occurs. 
Further, RCRA solid and hazardous waste must be reevaluated at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste, such that the RCRA classification may have changed. As discussed in the proposal rule at 80 FR 57938, and in referring to characteristic hazardous wastes, the Agency stated:
      This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.

The Agency received other comments similar to the above. Many commenters were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations. (See for example, discussion at 80 FR 57939 and 55 FR 39410, September 27, 1990) In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties. 

The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination.

Comment: Under current rules, generators must determine if their waste is hazardous and both LQGs and small quantity generators ("SQGs") must also retain records of their hazardous waste determinations for at least three years. Under EPA's proposal, LQGs and SQGs would also have to keep records for waste determined to be non-hazardous. The agency states in the NRPM that "[t]he focus of th[e] provision is on solid wastes that have the potential to be hazardous wastes" and that it is "not interested in . . . solid wastes that clearly have no potential to be hazardous, such as food waste, restroom waste, or paper products." 

The above explanation is of doubtful utility, however, since the proposed language of the rule itself does not contain any such limitations. Proposed provision 262.11(e), Recordkeeping for small and large quantity generators, simply requires LQGs and SQGs to "maintain records supporting its solid and hazardous waste determinations, including records that identify a material as a solid waste as defined by 40 CFR 261.2." Generators are therefore left to rely on EPA's statement in the NPRM preamble that it means to cover only solid wastes having the "potential to be hazardous wastes," and will have to make independent decisions of where to draw the line for each type of non-hazardous waste generated. This leaves generators vulnerable to citations if either EPA or a state agency disagrees with the generators' decisions about the scope of their non-hazardous waste recordkeeping. (0188)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The phrase "comprise the generator's knowledge of the waste" is quite expansive by its own terms and could conceivably be interpreted to require a record of literally everything a generator knows about a particular waste. The proposed language at section 262.11(e) goes on to specify that records should "include but not be limited to" various types of information listed in the rule. [Footnote 13: Required information includes, "[t]he results of any tests, sampling, or waste analyses; records documenting the tests, sampling, and analytical methods used and demonstrating the validity and relevance of such tests; records consulted in order to determine the process by which the waste was generated, the composition of the waste, and the properties of the waste; and records which explain the knowledge basis for the generator's determination, as described at 40 CFR 262.11(d)(2).] In addition to the listed information, a generator would likely also want to maintain any information that might be relevant in an inspection, or that might be important in defending an enforcement action challenging waste determinations.

We question whether maintaining records of this amount of information (particularly with regard to solid, non-hazardous waste) would provide any additional environmental benefit. Some of the described information is redundant and the recording of other types would be useless if not nonsensical. For example, we cannot envision a situation where a generator would need to consult records "in order to determine the process by which" its own waste is generated. (0188)
Response: There has been a long-standing regulatory requirement that SQGs and LQGs keep records of any test results, waste analyses, or other determinations made in accordance with §262.11 for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal. The modifications to the recordkeeping requirements are clarifications meant to assist the generator in what types of records a generator may use in making a hazardous waste determination. 
Regarding non-hazardous waste determination documentation, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, the Agency believes this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Continuing Hazard Determinations (p. 57939)

As noted above, LQGs and SQGs must determine whether a waste is hazardous or non-hazardous when it is first generated. In addition, however, the proposed rule would require hazard determinations to be made "at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." 

While the proposal may result in a generator having to perform multiple assessments of a waste, we support regulatory requirements that are designed to ensure that waste is properly characterized, managed and disposed. (0188)
Response: Hopefully the Agency is responsive to the above comment that regulatory requirements be designed to ensure that waste is properly characterized, managed and disposed, including those situations where multiple assessments are necessary because the properties of the waste may change.  
Comment: Though the preamble states that documentation is not required for solid wastes that have "no potential to be hazardous," the proposed rule does not include any sort of exemption from the documentation rule or make any such distinction. (0201)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 262.11 waste determinations & profiles - generators should be required to notify Subtitle C facilities if non-hazardous waste waters sent off site for treatment will generate a sludge listed in 40 CFR 261 Subpart D. (0214)
Response: As the commenter probably knows, the Agency cannot require a generator to notify either a Subtitle C or D facility if it is sending a non-hazardous waste water off-site for treatment even if the possibility exists that the treatment will generate a listed sludge found under 40 CFR 261 subpart D. Examples of such wastewaters would occur from electroplating operations and chemical conversion coating operations, or operations where the sludge generated from treating the waste waters generate an F006 or F019 sludge. 
However, the Agency would recommend the generator, as a best management practice, inform the receiving facility that the waste water it is treating would generate a listed sludge. Similarly, the receiving facility should also, as a best management practice, ask its customers about the source of the waste waters and be aware, if not informed by the generator, that the treated waste water would generate a listed sludge subject to all applicable RCRA regulations in parts 260-270.  
Comment: The proposed waste determination information that must be documented and maintained is overly-prescriptive and is more information than is necessary. (See Comment #14). (0219)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: EPA should not require SQGs and LQGs to prepare and retain documentation when a solid waste is determined not to be a hazardous waste. (See Comment #15.A.). Further, EPA should explicitly state in this rule that the waste determination documentation is not required for the many hazardous secondary materials that are excluded from the definition of solid waste, or for the many solid or hazardous wastes that are exempted by rule from the requirement to conduct a hazardous waste determination or to document that determination. (See Comments #15.B. and 15.C.). (0219)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Waste determination documentation warning against comingling (40 CFR §262.11(e))

We question whether the proposed sentence, "Generators may wish to segregate any of their municipal solid waste from other solid and hazardous waste to avoid potential comingling," is the best way of stating this point. We understand this point to be a warning to generators not to create additional hazardous waste by mixing their municipal solid waste with other listed hazardous waste or characteristic hazardous waste that could cause the entire mixture to be hazardous waste under the mixture rule. Perhaps the following makes the point more clearly: "Generators may wish to segregate their municipal solid waste from hazardous waste as necessary in order to avoid each mixture becoming a hazardous waste under the mixture rule at 40 CFR §261.3(a)(2)(iv)." (0219)

Response: The Agency is deleting the sentence regarding the co-mingling of wastes proposed at § 262.11(e). With the Agency addressing the mixing of solid with hazardous wastes by generators at § 262.13(f), this statement in § 262.11 is not needed.

Comment: In addition to this requirement being quite burdensome, the proposed requirement to document each determination that a solid waste is not a hazardous waste is not necessary. Currently, if questioned by an inspector, a generator must provide the inspector with sufficient justification as to why a particular solid waste is not a hazardous waste. EPA is quite successful in bringing enforcement actions when the generator's justification is insufficient.

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: 16. Hennepin County supports the proposal to clarify the generator's obligation to evaluate its waste and making it clear that the evaluation must be accurate. However, we suggest that the Agency consider adding a time limit to accomplish the evaluation, and a requirement that the waste be assumed to be hazardous if the waste is not evaluated within the time limit. See Minn. R. 7045.0214, Subp.l. (0229)
Response: The Agency agrees with the above comment that waste determinations must be accurate. However, the Agency does not agree that a specific time limit be established since a representative sample of the waste may need to be sent off-site for testing in which case there is no guarantee when the results will be returned within the specified time allowed. The agency believes that the once a hazardous waste has been generated at the point of generation, then the process should start in making an accurate hazardous waste determination.

4. EPA is proposing to modify the recordkeeping requirements for small and large quantity generators to include keeping records for both solid and hazardous waste.

Comment: CRWI has two concerns about the recordkeeping requirements for making a determination that a material is not hazardous waste as proposed in 262.11(e). First, there is a potential conflict with wastewaters that are discharged to a publically owned treatment works (POTW) or NPDES facility. To resolve this, we believe that the Agency should note in the rule that where individual states allow for aggregation in characterization and reporting of wastewaters to POTW or on-site NPDES permitted facility, the state should provide guidance on characterization requirements. This provision should not preclude states from allowing methods other than point of generation for waste streams such as wastewaters. (0255)
Response: The Agency believes the above comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: In order to balance the benefits of proper hazardous waste identification with the associated documentation and recordkeeping burdens, the City suggests that EPA develop a large list of examples of the types of waste that are presumed to be non-hazardous and for which documentation is not required. These "presumed non-hazardous wastes" should be identified in the regulation itself (as opposed to only described in the preamble) and should be specifically noted as not requiring documentation. (0257)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: 4. The Proposed Recordkeeping Requirement is Arbitrary and Unjustifiable Because the Potential Environmental Benefits Do Not Outweigh the Costs

According to EPA, "the benefits to human health and the environment far outweigh the minimal costs" of requiring SQGs and LQGs to document and maintain non-hazardous waste determinations. 80 Fed. Reg. 57,942. One of the main benefits EPA expects to gain from this proposed requirement is to allow EPA inspectors to more easily and efficiently assess the reasonableness of potentially questionable determinations. See 2015 Economic Assessment at 4-19. However, the consumer products handled at Inmar's facilities are manufactured to a precise specification, and these consumer product wastes typically remain in their original manufacturer packaging, which displays the product name and ingredients, and often lists hazards and warnings pursuant to strict federal and state packaging and labeling requirements. See e.g., 21 U.S.C. §§ 343, 352, 362 (FDA labeling requirements for food, drugs and devices, and cosmetics under the Federal Food, Drug, and Cosmetic Act); 15 U.S.C. §§ 1451 et seq. (the Fair Packaging and Labeling Act); 15 U.S.C. §§ 1261 et seq. (labeling requirements for products containing hazardous substances under the Federal Hazardous Substances Act). Accordingly, unlike manufacturing waste-streams generated in factories, in the case of retail and pharmaceutical products, EPA inspectors will have significant information about product ingredients and hazards based on the information on manufacturer labels and/or in Safety Data Sheets.

Thus, while this proposed recordkeeping requirement may provide an environmental benefit in the context of industrial sector wastes, the requirement adds little value in the context of the retail, healthcare and reverse distribution industries. As a result, the Proposed Rule is arbitrary and unjustifiable because the costs significantly outweigh the benefits. If EPA decides to finalize the Proposed Waste Determination Requirement, it should exclude consumer product wastes because these wastes pose minimal environmental risks and make up a tiny fraction of the total hazardous waste generated in the United States. (0260)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: 1. EPA Failed to Identify an Appropriate Legal Authority for Requiring Generators to Maintain Non-Hazardous Waste Determinations

Pursuant to the Administrative Procedure Act ("APA"), an agency proposing a rule must identify the legal authority under which the rule is proposed. See 5 U.S.C. § 553(b)(2). Here, EPA is relying upon only its hazardous waste authority under Subchapter III of RCRA. See 80 Fed. Reg. at 57,919 (citing 42 U.S.C. §§ 6921, 6922, 6923, and 6924). None of the cited provisions provide EPA with authority to require recordkeeping for non-hazardous solid waste ("solid waste"). If EPA wants to regulate solid waste in the Proposed Rule, it must properly identify its legal authority for issuing these new requirements, if such authority even exists.

To the extent that EPA's Proposed Waste Determination Requirement extends to materials that are neither solid wastes nor hazardous wastes, see section II.B.2, infra, such a requirement is clearly beyond EPA's statutory authority, since RCRA does not apply to materials that are not solid wastes. See Am. Mining Cong. v. U.S. EPA, 824 F.2d 1177, 1179 (D.C. Cir. 1987) ("[T]he scope of EPA's jurisdiction [under RCRA] is limited to those materials that constitute `solid waste.'"). (0260)

Response: The Agency disagrees with the above comments. This issue was first discussed in 1980 (45 FR 33095-96, May 19, 1980); i.e., that the point of generation is identified as the point at which the material is first identified as a solid waste under RCRA, before any dilution, mixing, or other alteration of the waste occurs. 
Further, RCRA solid and hazardous waste must be reevaluated at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste, such that the RCRA classification may have changed. As discussed in the proposal rule at 80 FR 57938, and in referring to characteristic hazardous wastes, the Agency stated:
      This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.

The Agency received other comments similar to the above. Many commenters were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations. (See for example, discussion at 80 FR 57939 and 55 FR 39410, September 27, 1990) In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties. 

The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination.

Section 4.3 - Re-notification
Introduction 
Because SQGs need only notify once, and that is primarily to obtain RCRA ID so that they can ship hazardous waste off-site to a RCRA permitted TSDF, there is no assurance that the information collected in EPA's and the states' databases over time will accurately reflect which facilities are generating hazardous waste, and what might have changed over time. 
This lack of a re-notification requirement, especially for SQGs at the federal level, greatly impairs EPA's and the states' ability to use the information for compliance monitoring and programmatic purposes.  

To address this problem, the Agency proposed that SQGs must re-notify EPA using the Site ID form prior to February 1 of each even-numbered year, similar to the biennial report with the SQG re-notifications occurring one month prior. EPA also took comment on alternative time frames for SQG re-notification such as every four years, alternate cycles from the biennial report, and rolling re-notifications. Finally, EPA took comment on whether a better approach would be for EPA to require an SQG or LQG to re-notify only in the event of a change to certain information, such as change in ownership or generator category. 

For SQG Re-Notification
The following commenters supported EPA's efforts to require SQG re-notification either as proposed, or with modifications: 0125, 0060, 0092, 0108, 0121, 0134, 0145, 0160, 0183, 0207, 0217, 0225, 0232, 0243, 0248, 0264, 0116, 0126, 0178, 0188, 0223, 0112, and 0235. Specific comments and EPA responses are discussed below. 
Comment: The downside to a re-notification requirement or recommendation of any kind is that sites that have gone out of business will not submit forms so it will be difficult to improve the data for them. States will likely need additional resources to conduct data cleanup, which could encompass data mining, sending thousands of letters, or having staff go out to determine the operational status of sites. The Expert Group recommends that ORCR develop guidance for administrative inactivation of EPA ID Numbers based on a lack of hazardous waste shipment data or on the lack of re-notification over a period of time. Once the national e-Manifest database exists, it can be used to determine if a generator shipped hazardous waste, although it will be several years after implementation before a longer period of record is available. (0125)
Response: EPA will look into the feasibility of developing guidance for administrative inactivation of EPA ID Numbers based on a lack of hazardous waste shipment data or on the lack of re-notification over a period of time.

Comment: The Expert Group briefly discussed and abandoned the suggestion to base SQG re-notification on an ID-specific anniversary date as that would be too difficult for both sites and states to track. While a fixed date will result in an excessive amount of forms being submitted at the same time, it will be easier for SQGs to remember. It would also be easier for states when preparing their resources and providing a reminder to their SQGs. (0125)

Response: The Agency agrees with this commenter's remarks and will use a fixed date approach in requiring SQG re-notification.  
Comment: Although a good idea, it will be difficult to enforce. Will it be facilities who are SQGs in December of the previous year, or facilities that had been a SQG at any time in that previous year? (0060)
Response: Re-notification will be predicated on their normal or regular generator category.

Comment: Suggest alternating the years for the SQG re-notification process and the LQG Biennial reporting. This will reduce the date entry burden.(0060)
Response: The Agency agrees with this comment and has finalized the rule to account for alternating reporting years.

Comment: Suggest a requirement to document submittal of the executive summary of the contingency plan to the LEPC or local authorities. (0060)
Response: Submittal of a contingency plan executive summary in the first place is only applicable to LQGs and not to SQGs.  Thus, this comment regarding documentation of submittal is not relevant for SQGs. 
Comment: Re-notification and updating of generator information, if done electronically within the EPA/State database, should reduce the burden for all involved. However, the need for the Certification signed by the entity's legal owner, operator, or authorized representative is the difficult part of an electronic update. In a large company setting such as might be the case with a SQG or LQG, the Certification may require many layers of approvals which would not work with the ease of the electronic update. Requiring the Certification only when the owner has changed would facilitate the use of the electronic biennial update. (0092)
Response: The Agency agrees that re-notification and updating of generator information, if done electronically within the EPA/State database, should reduce the burden for all involved. The Agency has developed MYRCRAID which allows for updating of the Site ID form electronically  -  provided the state desires to utilize the electronic system. While Certification may be difficult for some generators, states may have provided flexibility in who may certify for any changes.  Similarly, a change of ownership will not trigger automatic SQG re-notification although we would expect either the previous or new owner to notify the state or EPA of the change so as to account for a change in who is responsible for managing hazardous waste while being accumulated on-site.    

Comment: In South Carolina, the State requires an annual fee and Declaration of generator status at the beginning each calendar year for SQGs. Additionally, the State requires update of the generator information whenever there is a change. The proposed change would not impact our facilities as the State is already more restrictive, but as a generator, the requirement for re-notification every 2 or 4 years does not seem burdensome especially if the Certification is not required unless the owner/operator changes. Having a set deadline is easier to track than a rolling deadline, and if there is a change in responsible personnel, the regulation can be referenced to ensure the correct deadline. (0092)
Response: The Agency is in agreement with this commenter. 
Comment: NJDEP supports efforts for updating generator information, and if left to no other data gathering mechanism, supports re-notification. However this is time consuming for the Agency and the states handling and processing this data. USEPA appears to be dismissing the significant information that will be generated from E-manifest. For the states that have manifest systems, we are aware who is generating waste, the types of waste generated, and the volumes generated. We are also able to compare the data annually to our lists of state-wide generators. USEPA will be able to garner the same data and develop similar reports. Maybe an initial round of notifications will be needed until e-manifest is running but after that, the two year notifications should be re-evaluated. (0108)
Response:  E-manifest specifications do not currently include a generator category data element, nor is including this data element possible without a regulatory change. However, the Agency will continue to investigate the feasibility of using e-Manifest data to identify active SQGs and LQGs. Similarly, the Agency in response to comments, has increased the time between SQG re-notifications from two to four years. 

Comment: UNL agrees that periodic re-notification by SQGs and LQGs is important. We urge the Agency to consider blending their described alternatives to require re-notification by LQGs as part of the biennial reporting process, but require re-notification by SQGs as an event-driven process. Re-notification by LQGs as part of the biennial reporting process will require minimal additional effort on behalf of the generator. We suggest adding "stopped operations" to the list of SQG event-drivers that trigger re-notification. (0121)

Response: LQGs will continue to submit a biennial report every two years. While the Agency took comment on an event-driven re-notification process, we now believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators. 

Comment: EPA proposes that SQGs and LQGs undergo re-notification. 80 FR 57946. Under existing § 262.12, generators seeking an EPA identification number must submit Form 8700-12 to EPA in order to receive one. Subsequent to obtaining an EPA ID number there is no federal regulation requiring LQGs or SQGs to re-notify EPA to update their site information or confirm the information is accurate.

More specifically, the proposal would require LQGs, having first obtained an EPA ID number, to re-notify EPA using the Site ID form prior to March 1 of each even numbered year. As for SQGs, those having first obtained an EPA ID number would have to re-notify EPA using the Site ID form prior to February 1 of each even number year. ETC believes requiring LQGs and SQGs to re-notify every two years would improve the agency and states' ability to use the information for compliance and monitoring purposes. A one-time notification provides no assurance that the information collected in EPA's and the states' databases, over time, accurately reflects which facilities are generating hazardous waste. (0134)
Response: The Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. While still several years away, states must become authorized for this provision. In the meantime, the Agency will work with the states and the regulated community to develop the necessary software and instructions to effectively implement this new requirement.  This re-notification requirement will also occur in years in which federal biennial reporting is not required. This form must be submitted by September 1st of each year in which re-notifications are required. 

Comment: For SQGs in Nebraska, periodic re-notification will be a new requirement, but should create a minimal regulatory burden for generators. Once the initial notification to obtain an EPA ID number has been submitted, the generator need only review the previous notification and either make changes if necessary or confirm that the information remains accurate.

The addition of this minimal reporting requirement for SQGs is greatly outweighed by the benefit to state agencies in having accurate data that is reflective of which facilities are generating hazardous waste. Such data are highly relevant to state program management, planning, and compliance enforcement functions. Upon inspection, NDEQ has observed that approximately two-thirds of generators who initially notified as SQGs or were last inspected as SQGs have now dropped to CESQG status since notification or their most recent inspection. Accurate data as to current SQGs will be useful in allocation state inspection resources and meeting state-EPA agreements.

NDEQ appreciates EPA's recognition that the review and processing of SQG notifications will add to the administrative workload of state agencies. Accordingly, NDEQ suggests that it is appropriate for SQGs to re-notify every four years  -  as opposed to every two years. A four year reporting interval will make generator compliance with this requirement easier, but still serve to update federal and state data for the SQG universe. To more evenly distribute the paperwork burden on states, NDEQ also suggests that EPA consider establishing the deadline for SQG re-notification to occur after the LQG deadline in the same even-numbered year. NDEQ agrees with EPA that there are benefits to keeping both deadlines in the same year; however, as SGQ re-notification will be the larger of the two processing tasks, NDEQ believes that this task should not be confined to one month which also ends with the arrival of numerous LQG biennial reports to be processed. (0145)
Response: The Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements.
Comment: Having up to date generator status (e.g., active or inactive small quantity generator status) is good for industry, the public and government. However, EPA must make the notifications simple if it wants industry to comply. Industry does not want to have to complete an EPA 8700-12 form for changes or verification of generator status. While EPA may think the EPA 8700-12 form is simple. It is not. To ensure compliance with this proposed regulation, EPA should develop a simple one or two page form for submitting to EPA or states current facility status (active/inactive) and current generator status (VSQG, SQG, or LQG, as proposed in the rule). The notification frequency described in the proposed rule are not overly burdensome to industry. (0160)

Response: The Agency will look into the feasibility of simplifying the Site ID notification form. 
Comment: KULC-EHS agrees that periodic re-notification by SQGs and LQGs is important. We urge the Agency to consider blending their described alternatives to require re-notification by LQGs as part of the biennial reporting process, but require re-notification by SQGs as an event-driven process. (0183)
Response: LQGs will continue to submit a biennial report every two years. While the Agency took comment on an event-driven re-notification process, we now believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators.

Comment: The re-notification of the SQGs is a great idea, but could prove to be difficult for the state to process the submitted information in a timely manner. (0207)

Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements.
Comment: Most States agree with EPA's identification of the need to account for SQGs, as well as all other generators, and their contribution to the totality of hazardous waste. Therefore, most States support re-notification for SQGs and LQGs on a biennial basis by March 1 of each even-numbered year. Some States do not support different requirements for SQGs and LQGs. Additionally, some States already require an annual re-notification. One State believes LQGs and SQGs should be able to confirm or update site information on a copy of the previous notification, on Form 8700-12, or on other form approved by EPA or an authorized State. Additionally, other States collect SQG data as part of their annual fees. Those annual fee submittal dates can vary. Those States should be able to use their annual fee forms instead of Form 8700-12 to collect SQG information. The States should have as much flexibility as possible in requiring the re-notification of LQGs and SQGs to ease the burden. (0217)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. 

Comment: One State strongly agrees with EPA's opinion that there are a large number of facilities that do not have up-to-date information; this State maintains up-to-date information of its LQGs and SQGs for financial purposes. Those LQGs and SQGs that no longer pay fees are inspected and their information updated in RCRAInfo. Therefore, this State has internal policies in place that prevent its SQG and LQG universe from being outdated. For these reasons, this State believes that additional re-notification requirements for SQGs and LQGs will create an undue burden for both the State and the regulated facilities. (0217)

Response: This state will not have to do anything different or have any additional burdens under this rule. 

Comment: The re-notification requirements at 40 CFR 262.18(d) for small quantity generators (SQG) and LQGs as long as the notifications already required by authorized states such as Tennessee in their annual reporting package is acceptable rather than use of EPA's form 8700-12; (0225)
Response: States are allowed to use their own reporting forms so long as federal information requirements are collected. 
Comment: The MPCA supports the proposed requirement for SQGs/LQGs to periodically update their notification of existence and activity to the EPA or authorized states. Minnesota has effectively required annual re-notification for LQGs to the MPCA since 1983, for SQGs since 1985, and for VSQGs since 1992. Minnesota does annually submit this information to the EPA. Without such re-notification, any list of prior notifications is of dubious value, decreasing every year, since many sites that previously notified have moved, closed, changed processes, or for any of many reasons ceased generating some or all hazardous wastes. In addition to concurrence with the issues discussed by the EPA at 80 FR 57947, the MPCA points as example to identical problems being experienced with the federal TSCA PCB program, where notifications required to be submitted in the early 1990's are now being found by both the EPA and MPCA to contain a majority of obsolete and useless information. The MPCA has found that annual re-notification is a very low burden on regulated parties, even on extremely small (minimal) hazardous waste generators (<100 pounds of hazardous waste per year). (0232)
Response: The Agency agrees with MPCA comments. 
Comment: Clean Harbors believes requiring LQGs and SQGs to re-notify every two years would improve the agency and states' ability to use the information for compliance and monitoring purposes. A one-time notification provides no assurance that the information collected in EPA's and the states' databases, over time, accurately reflect which facilities are generating hazardous waste. (0243)
Response: The Agency agrees with Clean Harbor's comments. 
Comment: DC supports this proposed change for SQGs. (0248)
Response: The Agency thanks DC for their comments.
Comment: EPA must also finalize its proposal to require LQGs and SQGs to re-notify EPA and the states of important hazardous waste generator information every two years, at a minimum. (0264)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required.
Comment: TDEC agrees with EPA's identification of the need to account for SQGs, as well as all other generators, and their contribution to the totality of hazardous waste. Given that Tennessee's current rules and regulations require SQGs to report hazardous waste generation information annually to the state and to notify TDEC of any significant changes in generator data within 30 days of when a change occurs, TDEC has no objections to the proposed change. The current annual data collected by the Department would be reported biennially to EPA. (0116)

Response: TDEC's SQG and LQG re-notification efforts are not affected by this rule since they have more stringent reporting requirements.  

Comment: IME supports the re-notification requirement as a means of ensuring that EPA has current and relevant information on reporting facilities.

IME recommends that SQGs and LQGs both report on the same date of the same year. We believe it would be simpler and less confusing for most generators to do all their reporting at one time in a single year, particularly facilities that must report as both SQGs and LQGs because of their varying monthly waste production totals. It would be even more convenient for our member companies if the agency were to allow the re-notification to be done in conjunction with the biennial reporting. (0126)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. 
However, states may be more stringent than the federal program and have reporting requirements that satisfy the needs of this commenter. 
Comment: The purpose of the initial notification is to identify the facility name, address, property owner, facility contact information, the types of hazardous waste generated, and the types of hazardous waste activities that the generator engages in. This information is entered into a federal database (RCRAInfo) that EPA and authorized states use to track generators and for planning purposes (e.g., to decide which generators should be inspected each federal fiscal year).
Although CT DEEP supports EPA's proposal in concept, we are very concerned about the potential increased administrative burden that this proposal could have on authorized states, such as Connecticut, that may be responsible for entering and maintaining this data, especially as it relates to SQGs. CT DEEP is less concerned about re-notification by LQGs, since that already pretty much occurs through the biennial report process. However, Connecticut currently has about 1,500 SQGs in the state and very limited resources to process that volume of notifications  -  even on the proposed biennial basis, and even if a way were developed such that SQGs could submit these re-notifications electronically.

On the point of electronic re-notification, CT DEEP would note that although an on-line or electronic option would reduce data entry time, our experience is that there is often a need to follow up with the notifier to confirm that certain elements of the notification are correct and accurate. Allowing SQGs or any other generators to make unilateral unchecked changes to their notifications could at best compromise the integrity of the data in RCRAInfo, and at worst allow unscrupulous generators to attempt to remove themselves from the database.

CT DEEP would be much less concerned about the resource issue if the processing of the re-notifications was performed by EPA. However, even this scenario raises concerns in that CT DEEP would lose a certain amount of control over the data that could compromise its ability to obtain information about generators in Connecticut and appropriately select candidates for inspection. (0178)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. Therefore, the burden on the states is reduced considerably in the final rule relative to what the Agency proposed.
Regarding the QA/QC processes involved with electronic reporting, the Agency appreciates CT DEEP's efforts to collect and maintain high quality information. Similarly, processing re-notifications is a state requirement. 
Comment: EPA proposes to require SQGs and LQGs to re-notify the agency of their hazardous waste management activities every two years. [Footnote 17: Currently LQGs must re-submit a notification every two years as part of the biennial reporting requirement. No similar requirement applies to SQGs.] IME supports the re-notification requirement as a means of ensuring that EPA has current and relevant information on reporting facilities. (0188)
Response: The Agency agrees with IME's comment regarding SQG re-notification as a means of ensuring that EPA has current and relevant information on reporting facilities. However, as stated above, in response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12.
Comment: A couple of States support the addition of a re-notification requirement for SQGs and LQGs, but would rather the SQG re-notifications occur on a different schedule from the biennial report. These States prefer SQGs to re-notify on the years opposite the biennial report and LQG notifications (i.e., SQGs re-notify by March 1 of odd numbered years). (0217)
Response: The Agency agrees with this comment and has responded by requiring SQG re-notification in years opposite the biennial report and LQG notifications. 
Comment: The proposal for generators to re-notify and update information periodically has merit to the extent that limited additional data are requested as part of existing required reports such as LQGs' biennial reports. The re-notification and update requirement for LQGs could be fulfilled by the regulated entity's simply amending the form currently in use for biennial reporting. In cases where no reporting obligations currently exist, the cost-benefit of adding an additional requirement for SQGs does not seem to have the same potential merit. In fact, it seems that EPA and authorized states already have the requested information for both LQGs and SQGs in the form of hazardous waste manifests transmitted by the generators.

Furthermore, some regulated entities have numerous SQG sites with waste generation activities and corresponding EPA ID numbers. Therefore, it would be burdensome for such regulated entities to go through the exercise of re-informing EPA of their hazardous waste generator activities once every two years. The objective of this requirement may be best achieved if EPA or delegated states monitor the activity against the EPA ID numbers that it has issued. And for ID numbers that were inactive over the last two-year period, EPA or delegated states could request that the generator revalidate its waste generator activities and status. As an alternative, because EPA is seeking to identify changes in the initial reporting, the better alternative would be to require re-notification only in the event of a change to significant information such as a change in ownership or a change in generator status. (0257)
Response: The Agency disagrees with the above comments. The Agency concluded that the workload and costs to both the regulated community and the states would be less with a consensus-type approach every four years rather than an event-driven approach where SQGs might have to complete a re-notification form more frequently than once every four years. The Agency also felt that every four years was an appropriate time-period to require re-notification.
Comment: The proposed rule wants SQGs to re-notify in even-numbered years by February 1. The Expert Group supports a re-notification requirement for SQGs but believes biennially is too frequent for a national requirement. However, several states already have annual reporting or re-notification requirements for fee purposes. These existing requirements should be allowed to take precedence over a new rule requirement. For states without more stringent requirements, the Expert Group recommends instead that SQGs be required to re-notify every 4 years during odd-numbered years. (0125)
Response: The Agency agrees with the RCRA Expert Group and has finalized the rule to meet these comments.
Comment: Re-notification timetable should be the same for LQG and SQG (0154)

Response: The Agency disagrees with the above comment. In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. Therefore, the burden on the states is reduced considerably in the final rule relative to what the Agency proposed.
Comment: The department supports the proposed requirement for small and large quantity generators to re-notify every two years, although we would suggest that states be allowed to initially select the interval upon which each generator is required to re-notify, in order to avoid having all generators on the same renewal schedule. This will assist state staff with the distribution of workload as registration staff have many other duties. (0223)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. Therefore, the burden on the states is reduced considerably in the final rule relative to what the Agency proposed. The Agency believes this approach should satisfy the demands identified in the above comments. 
Comment: As for whether or not the re-notifying should be done on another time frame (i.e. every four years, only when a LQG or SQG has a change in ownership or generator category or anytime of the year) We believes the every two years approach would work best particularly since this time frame is the same as that for the biennial reports (0243)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. Both the Agency and commenters found two years was too short an interval between SQG re-notifications while two years is the requisite time period for biennial reporting.  
Comment: Regular re-notification by SQGs. MU would support either the every-two-years or every-four-years proposed by the Agency. (0256)
Response:  In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12.
Comment: TCEQ requests clarification if an annual reporting requirement is sufficient as a method of re-notification. If annual reporting is sufficient to meet re-notification requirements, the TCEQ prefers to have the re-notification year occur during the EPA's Biennial Reporting which will coincide that year's annual reporting to the TCEQ. (0112)
Response: Yes, annual reporting requirement is sufficient as a method of re-notification. If TCEQ has annual reporting requirements, then this rule will have no effect on their reporting/re-notification activities. 
Comment: Requiring SQGs to re-notify EPA of their generator information every other year will provide valuable, up-to-date information. However, many states are already collecting this information, and EPA should explore the possibility of collaborating with the states regarding this information (0235)
Response: States may always be more stringent than the federal program and require more frequent reporting and re-notification requirements. In such cases, this rule will have no effect on their existing requirements. 

Against SQG Re-Notification
The following commenters were against the proposed provision: 0257, 0220, 0262, 0085, 0168, 0097, 0089, 0195, 0189, 0200, 0206, 0212, 0224, 0240, 0253, 0283, 0152, 0182, 0219, 0077, 0099, 0133, 0217, 0240, 0131.  
Comment: Proposed periodic re-notification- We do not support this proposal. The current requirement is Sufficient (0220)
Response: The Agency disagrees with the above comment. Because SQGs need only notify once, and that is primarily to obtain RCRA ID so that they can ship hazardous waste off-site to a RCRA permitted TSDF, there is no assurance that the information collected in EPA's and the states' databases over time will accurately reflect which facilities are generating hazardous waste, and what might have changed over time. This lack of a re-notification requirement, especially for SQGs at the federal level, greatly impairs EPA's and the states' ability to use the information for compliance monitoring and programmatic purposes.  Therefore, the Agency has concluded, based on comments received that SQGs must re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12.
Comment: ACA understands EPA's stated goal of having up to date information so that EPA does not waste its time and resources monitoring compliance at entities that are no longer generating hazardous waste. However, these concerns about outdated information can more easily be corrected using the agency soon to be implemented E-manifest and online database. [Footnote 18: Hazardous Waste Management System; Modifications of the Hazardous Waste Manifest System; Electronic Manifest; Final Rule FR Vol. 79 No. 26.] This databased is required to be updated with information from each hazardous waste manifest that is used and would contain the necessary information (for example, generator ID) for the agency to satisfy its concerns. (0262)
Response: With respect to using manifest data, currently manifest data is owned by the states and not required to be sent EPA. This is changing with the e-Manifest system under development, in that the e-manifest data will be available to EPA and the states. However, as the system is being designed, specifications do not include a generator category data element, nor is including this data element possible without a regulatory change. However, the Agency will continue to investigate the feasibility of using e-Manifest data to identify active SQGs and LQGs. 

Comment: Requiring SQG/LQG Re-notification Requiring SQGs to re-notify every two years if they have not done so otherwise through an alternative process.

DTSC opposes the amendment to 40 CFR 262.18(c)(i). DTSC already uses an annual or biennial electronic verification questionnaire system to update information associated with hazardous waste identification numbers issued to all generators in CA. However, DTSC only collects about eight to ten areas of information on the form and does so electronically. Requiring DTSC to re-process 8700-12 forms for all SQGs would result in a new workload that is simply not absorbable with current state resources. Therefore, DTSC opposes this requirement and would rather discuss with EPA how it could achieve this objective through streamlined electronic submission systems thereby minimizing the workload burden on both generators and state regulators. In the alternative, DTSC supports the updates occurring in years opposite the biennial reports (i.e., in TSDF reporting years) and/or in four year or even six year increments. (0174)
Response: SQG re-notification will occur every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting. Since DSTC has an annual re-notification process, EPA's rule will not interfere with this frequency. However, EPA will need to better understand the differences between DSTC's notification form and EPA's form to ascertain differences and similarities to ensure consistent reporting of important information.   
Comment: DTSC supports LQGs re-notifying through the Biennial Report. DTSC believes the SQG re-notification should not be as important as the LQG re-notification, supporting a reduced frequency for SQG re-notifications. (0174)
Response: LQGs will continue to re-notify through the Biennial Report. Similarly, as stated above, SQG re-notifications will occur every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting.
Comment: Re-notification  -  States should be allowed time to implement EPA's electronic submittal process prior to implementing such an onerous paperwork requirement. (0214)
Response: States will have an opportunity to implement EPA's electronic submittal process since SQG re-notification will not begin until 2021.  

Comment: Colorado does not agree with this proposal. After speaking with our administrative staff, the enormity of this type of paperwork requirement seems overly burdensome to the states with little value to be gained. Colorado already requires LQGs, SQGs and some CESQGs to re-notify whenever the generator status, location and/or general description of activities at their facilities change. We do not require re-notification solely for changes in the identified or listed wastes handled by such person. We find that this "happy medium" between an annual/biennial re-notification requirement and no re-notification requirements at all, works well. One thing we might consider is adding a requirement to re-notify when the waste streams at the facility change, but this would have to be thoroughly thought through to ensure that the added benefit of having this type of information would justify the additional paperwork burden to facilities. (0085)
Response: The Agency disagrees with the above comments regarding "little value to be gained" by this proposal. Unlike Colorado, many states do not have either annual re-notification requirements or "event" driven mechanisms to require SQGs to re-notify. As a result, these states are unable to have a good understanding of their SQG universe and provide program oversight effectively and efficiently for protection of human health and the environment. The Agency believes requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting is a good compromise considering the needs of both the regulated industry and the states. Similarly, the Agency defers to those states with more frequent re-notification requirements that are census driven rather than "event" driven. One option the Agency will explore with Colorado and other states with event driven re-notifications is to determine if event-driven/census approach can be developed to capture all SQGs every four years to derive a reliable estimate of their SQG universe.   
Comment: This is an unnecessarily redundant and burdensome requirement, as this same information can be gleaned from existing records (such as biennial reporting) and existing state inspections. It is requested that this requirement be removed from the final regulation. (0089)

Response: The Agency disagrees with the above comment. Requiring SQGs to re-notify every four years beginning in 2021 is neither redundant with existing reporting requirements nor burdensome considering the form should be able to be completed in a short period of time, particularly if a state uses EPA's electronic version of Form 8700-12.  

Comment: I recognize the desire/need to do so. But, there should be a better way to do this than generation of an additional 50,000 documents every two years.

Consider:

o Using biennial reports to verify the status for LQG's.

o Mine the data for the half of the states which already collect this information in some form.

o For those EPA ID's which remain unresolved through the above mail a notification to the address on the most current registration with directions to a web site/data base where they can confirm or update their information.

o EPA ID' s not kept active by the above could be removed from the system.

- If EPA goes ahead with this requirement, please make both SQG and LQG reports have the same suspense. OR

- Just establish a data base for all generators to confirm their status.  (0097)
Response: First, those states with more frequent SQG re-notification processes will not be affected by this rule. Second, for the remaining states, they will have to conduct outreach (i.e., possibly mail their SQGs a reminder) to complete Form 8700-12 when required every four years. Third, such a system will enable states to remove SQGs from their universe if they find them inactive or no longer in operation. Fourth, based on comments, the Agency believes requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting is a good compromise considering the needs of both the regulated industry and the states.  

Comment: Although the Retail Associations appreciate EPA's desire to have more current information on the universe of hazardous waste generators, in light of the large size and dynamic nature of the retail sector, we urge the Agency to limit the periodic re-notification requirement for retailers, and to provide a streamlined process for large retail chains (e.g., allowing a consolidated update that identifies only key changes). (0168)

Response: The Agency believes requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting is a good compromise considering the needs of both the regulated industry and the states. To the extent a streamlined process for large retail chains can be accommodated, retailers will need to work with individual states since the re-notification process will be implemented by each state.

Comment: The Retail Associations understand EPA's desire for more up-to-date information on the universe of regulated generators. However, we are concerned that the options being considered by the Agency may unnecessarily burden the retail sector without providing any proportionate benefit. Periodic re-notification poses a particular challenge to retailers, since some retail companies have hundreds or even thousands of stores. Under the existing regulations, the status of these facilities may change with considerable frequency. While EPA's proposal with respect to episodic generators may help address this issue to some degree, as discussed in Section 5.5 above, the proposal does not get to the core reason for the frequency with which the status of a retail facility may change. Accordingly, we recommend that EPA require re-notification once every four years and allow companies with a large number of facilities to provide updated information in a consolidated format that only identifies key changes, such as facilities that have closed or changed generator status. (0168)

Response: The Agency agrees with this commenter on the frequency of SQG re-notifications and has adopted a four year re-notification process beginning in 2021. As stated in the previous response, to the extent a streamlined process for large retail chains can be accommodated, retailers will need to work with individual states since the re-notification process will be state-by-state driven.

Comment: P. 57947 / Section 3  -  Periodic Re-Notification: This new requirement is not anticipated to impact or burden our University, but it appears to have the potential to unnecessarily burden other institutions. (0172)

Response: The Agency is requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting. The Agency believes this approach is a good compromise considering the needs of both the regulated industry and the states.

Comment: Due to Idaho DEQ's existing annual reporting requirement for LQGs and SQGs, we are able to maintain fairly accurate data on our SQG and LQG universes. Idaho DEQ is not in agreement with the proposed rule to require SQGs to re-notify in even-numbered years by February 1. This date would place an additional unnecessary burden on already stressed State resources because the date is too close to our existing reporting requirement date of January 31 of every year. (0189)

The addition of this re-notification will cause potential confusion, problems, and delays from our SQG regulated community as well as unnecessarily increase potential enforcement activity as a result. Idaho DEQ would like to see language added to the rule that would allow states with existing annual reporting or re-notification requirements for fee purposes use those existing requirements to meet a re-notification regulatory requirement. (0189)

Response: States with more frequent reporting requirements, or less than every four years beginning in 2021 will not be affected by this rule. 

Comment: However, Idaho DEQ does believe a re-notification requirement should have always been a part of the RCRA HW regulations and would rather the requirement be for any site required to have an EPA ID Number re-notify under the following conditions:
:: Site Name Change
:: Owner/Operator Change
:: Site Contact Change
:: Generator Status or other Regulated Activity Change

Response: In evaluating the comments received, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach 

Comment: Idaho DEQ understands a number of states do not have any kind of existing reporting, fee, or re-notification requirement and would likely benefit from at least a regular, established re-notification process. However, we believe the 2-year time frame proposed in the rule is too frequent and burdensome for tight state resources and should not occur during the even numbered biennial reporting (BR) years. We recommend instead that SQGs be required to re-notify every 4 years during odd-numbered years in a month between April and September. The January to March time frame is too close to the time of annual report processing and the October to December time frame potentially impacts the BR process.
LQGs should continue to re-notify by filing BR in even-numbered years since existing LQGs are already used to this requirement. BR filers are supposed to indicate their current status at the time of filing the BR, which helps weed out one-time LQGs and keep that universe current and accurate. (0189)

Response: The Agency agrees with Idaho DEQ's comment and will require SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting. Similarly, SQGs will have until September 1[st] to re-notify.  

Comment: SD does not support the proposed requirement that SQGs re-notify of their hazardous waste activity. Although the state concurs with EPA that accurate generator information is desirable, the work-load required to implement the SQG re-notification effort would not merit the data outcome. It is the state's experience that SQG entities are frequently episodic in their generation rate, and a re-notification effort would not provide us with enough new information to make it worth the time to collect it. The state considered EPA's proposal in allowing SQGs to re-notify on a rolling, every two-year cycle. This provision might be better, but tracking the notification due dates would be very burdensome to the state. (0195)

Response: The Agency disagrees with the above comments in that the effort would not merit the data outcome. Having a reliable data base of their SQG universe to conduct inspections and other program oversight activities to ensure protection of human health and the environment should outweigh the burden of requiring their SQGs to re-notify every four years. 

Comment: Requiring SQGs to re-submit every two years, regardless of whether information has changed, creates unnecessary reporting for the regulated community and processing for the regulators. NMA prefers the alternative approach offered by the agency that would require re-notification upon a major change. Limiting re-notification to major status changes, appropriately balances the need for accurate information necessary for compliance monitoring or other important programmatic purposes with the paperwork burden imposed on the regulated community, which involves substantial costs in staff time and other resources for compliance. (0200)

Response: In evaluating the comments received from both industry and the states, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach in requiring SQGs to re-notify.

Comment: EPA is proposing that both LQGs and SQGs re-notify EPA using the Site ID form (EPA form 8700-12) when facility information changes and/or to require SQGs to file a biennial report  -  The intent of this re-notification provision is to provide basic information to the regulatory agencies about who is generating and managing hazardous waste. The current notification process provides no assurance that the information collected in EPA's and the states' databases over time will accurately reflect which facilities are generating hazardous waste. Because of the lack of integrity in the data, EPA and states must spend limited resources to `clean up' the data.

EPA's proposed rule will ensure the integrity and accuracy of the WDNR's databases. Requiring facilities to re-notify when facility information changes is an additional requirement over current rules. However, the impact on sources is limited because the fillable PDF notification form can be completed and submitted in under an hour. WDNR requests EPA require re-notification within timely fashion such as 30-days when a facility changes their generator status and/or regulated activity, facility name, contact person, ownership. (0206)

Response: In evaluating the comments received from both industry and the states, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach in requiring SQGs to re-notify.

Comment: Requiring all SQGs and LQGs to re-notify EPA every other year is unnecessary. With the pending implementation of the e-manifest system, EPA will have ample data on all hazardous waste generators. There is no need to require re-notification. (0212)
Response: EPA disagrees with commenter's comment that there is no need to require re-notification. EPA believes that having a reliable data base of the SQG universe to conduct inspections and other program oversight activities is necessary to ensure protection of human health and the environment. In evaluating the comments received from both industry and the states, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach in requiring SQGs to re-notify. Similarly, E-manifest system will not be able to identify the generator category of the facility completing the manifest document. 

Comment: Re-notification is unnecessary as facilities already provide notice as part of the biennial reporting, and otherwise have incentive to let the Agency know when their generator status changes or when the property ownership changes. For example, RCRA identification follows the property. Therefore, when a property changes hands, the former owner has incentive to inform EPA that it no longer has RCRA activities at a given property. 
EPA's main cited reason for requesting this is the agency's inability to maintain a "clean" database. See 80 Fed. Reg. 57947. This problem is an administrative issue for the EPA and the state agencies to resolve. They should not simply shift this burden to the regulated entities, which could in turn be actually replacing one administrative burden on the agencies with another. (0224)
Response: The Agency disagrees with the above comments. The problem is not simply shifting administrative burdens or inadequate coordination between EPA regional offices and authorized states. The issue is a lack of accurate and important up-to-date information to manage the RCRA program effectively to protect human health and the environment.

Comment: FPA Strongly Objects to the Requirement for all SQGs and LQGs to Reassess and Re-Notify EPA or the States Every Two Years, on the Grounds of Cost and Necessity. 

However, it is far from clear to FPA that requiring re-notifications or reassessments of waste streams every two years solves the problems EPA identifies in the NPRM and/or justifies the proposed new requirement. Yes, if the generator does not "re-notify," an inspector may be able to more easily identify the need for a trip to see if the facility is "still on the map." But that does not resolve the fundamental issue that over 30% of facilities never assessed their waste properly in the first place and also failed to notify the agency of the waste activity. EPA has not explained how the proposed solution -- re-notification/reassessment every two years -- solves either of these problems. The proposal merely appears to simply create another paperwork enforcement issue, when the real problem is the generation of hazardous waste without a RCRA permit or meeting enforceable RCRA standards and/or conditions for exemption by facilities already complying with the law's requirements. 

Response: Generators making an accurate waste determination is an issue independent of SQG notification/re-notification unless the generator is a CESQG/VSQG. If the generator is a CESQG/VSQG, and it failed to make an accurate waste determination, then the generator could possibly be either an SQG or LQG if the total quantity of hazardous waste generated exceeded 100 kilograms in a calendar month, in which case the CESQG/VSQG would need to notify their authorized state or EPA and comply with the applicable requirements. By notifying their state or EPA, then proper environmental oversight can occur including whether they maintain their generator category, change ownership, emergency coordinator, wastes generated, etc. 

Comment: b. The proposed biennial reporting requirement is highly unreasonable if it also requires reassessment of waste streams.

Requiring waste stream assessments every two years would be unreasonable. Since LQGs must already address the most significant potential changes in waste streams when they change or add new facility processes in their biennial reports, the added benefit of addressing all waste streams seems to pale in comparison to the added costs. (EPA proposes in this rulemaking to also require SQGs to file these reports.) The proposed requirement would be particularly challenging for small conditionally exempt generators that generally do not have on-site environmental compliance officers. We believe EPA should remove the requirement or clarify that by requiring SQGs and LQGs to resubmit FORM 12-8700 every two years, that the agency is not requiring re-assessment of all waste streams every two years. (0240)
Response: First, in response to comments, the Agency is requiring SQGs to re-notify every four years beginning in 202 using form 8700-12.  Second, by requiring SQGs to re-notify every four years, generators will need to identify all of the hazardous wastes they generate which should be a process they are conducting all along since they must comply with 40 CFR 262.11. In other words, there is nothing new here other than documenting the hazardous wastes they already generate.  
Comment: If the Agency is intending to require SQGs and LQGs to reassess their waste streams every two years, EPA should not finalize this proposal. Instead EPA should constitute a Task Force and issue a Notice of Supplemental Rulemaking to identify more manageable solutions to address the failure of generators to characterize their wastes properly or at all.

FPA urges EPA not to finalize the proposed reassessment requirement. Large Generators already report the information to EPA in their biennial report and should not be subject to re-notification requirements. There may be other solutions for small generators. However, to address the issue that many generators have not even self-identified is a tougher problem. We recommend that EPA convene as soon as possible a small Task Force to help it address this issue. There may be a way to more easily identify these culprits and assist them in assessing their waste streams which will benefit the public and the environment by identifying other permits or industry activities. Other alternatives besides biennial waste re-assessments also should be considered. For instance, for small generators, a postcard notification may be enough to confirm they are still in business. We are confident that there are other solutions that fit the problem EPA is seeking to address other than the one proposed. (0240)

Response: The Agency agrees with the above comments with respect to waste determinations being a problem for generators. We believe one possible solution is to ensure generators have the necessary processes and procedures in place to make accurate waste determinations and would like to enter into a dialogue with the regulated industry to further discuss this issue.  

Regarding the need for SQGs to re-notify, the Agency believes SQGs re-notifying every four years using form 8700-12 is a reasonable compromise to resolving an important problem confronted by both EPA and the states; i.e., to have an accurate and reliable understanding of their SQG universe in order to ensure protection of human health and the environment.  

Comment: While FPA is not concerned about the requirement to "re-notify" EPA and the States every two years using FORM 8700-12 of the continued existence of the regulated facility and its status as a conditionally exempt generator, the association does object to the inherent requirement in FORM 8700-12 to update the assessment of all waste streams at the site every two years. Id. at 57,948/1 ("re-notification would require a complete submittal of all information included in the Site ID form). If this was not EPA's intent, the agency should clearly state so in the final rulemaking. (0240)

Response: The Agency disagrees with the above comment. By requiring SQGs to re-notify every four years, generators will need to identify all of the hazardous wastes they generate which should be a process they are conducting all along since they must comply with 40 CFR 262.11. In other words, there is nothing new here other than documenting the hazardous wastes they already generate.  
Comment: NADA objects to any new mandate for the periodic re-notification of one's hazardous waste generator status, but does support provision for optional re-notification triggered by the occurrence of a fundamental change in the information first reported. Such occurrences may include changes in site ownership, site closure, long-term generator category changes, changes in wastes generated, and new on-site recycling activities. (0253)

Response: The Agency is requiring SQGs to re-notify every four years beginning in 202 using Form 8700-12. In the course of reviewing comments, the Agency realized a more cost-effective approach was for EPA and the states to conduct a census approach where all re-notifications could be addressed over a short period of time rather than having re-notifications come in periodically with no guarantee that resources would be available to review and upload the form.    

Comment: In this rule, the EPA has proposed requiring SQGs and LQGs to resubmit Form 8700-12 at least once every two years. The ATA opposes this proposal as an unnecessary and burdensome requirement. Many states already require LQGs and SQGs to submit annual or biannual reports that include updated site and operator information in addition to waste generation information. (0283).

Response: This rule will not affect those states with more stringent or more frequent re-notification processes, which we believe to be about half the states. Similarly, in an effort to respond to industry and state comments, the Agency is requiring SQGs to re-notify every four years beginning in 2021 using Form 8700-12 in years opposite biennial report submissions. 
Comment: EPA should not add additional and unnecessary reporting requirements on Small Quantity Generators (SQGs) and LQGs. (0283)
Response: The Agency disagrees with this comment as being unnecessary. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment.  
Comment: Mandatory biennial notification by SQGs, even if their generator status or facility information have not changed, is a waste of time and effort for both the SQG and the EPA or state/tribal agency. (0152)

Response: In light of these and other comments, the Agency is requiring SQGs to re-notify every four years beginning in 2021 using Form 8700-12 in years opposite biennial report submissions. Nor does the Agency agree with SQG re-notification being a waste of time and effort. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment.  
Comment: Although DEQ strongly agrees with the EPA's opinion that there are a large number of facilities that do not have up-to-date information, the state of Oklahoma maintains up-to-date information of its LQGs and SQGs for billing purposes. Those LQGs and SQGs that no longer pay fees are inspected and their information updated in RCRAinfo. Therefore, DEQ has internal policies in place to prevent our SQG and LQG universe from being outdated. For these reasons, it is DEQ's opinion that additional re-notification requirements for SQGs and LQGs will create an undue burden for both the state and the regulated facilities.

DEQ is of the opinion that the proposed requirement for LQGs and SQGs to re-notify every two years is excessive. DEQ believes facilities should only be required to re-notify when information included in the 8700-12 form is changed, e.g. the owner/operator changes, or the generator status changes. In the event that the EPA does require facilities to re-notify on a specific schedule, this time period should be only on odd-numbered years (i.e. not during months in which biennial reporting occurs), in order to lower the total quantity of work placed on the state at any one time. (0182)
Response: In light of these and other comments, the Agency is requiring SQGs to re-notify every four years beginning in 2021 using Form 8700-12 in years opposite biennial report submissions. 
Comment: Most states receive as part of the biennial or annual report the information EPA says it needs to obtain from SQGs and LQGs. In addition, current Form 8700-12 states in its Instructions that subsequent notification should be submitted for various changes that occur, which include a change in site contact, site ownership RCRA activity levels (VSQG, SQG, LQG, TSD, etc.), and for other reasons. See page 4 of instructions to EPA Form 8700-12. Therefore, it is not clear why EPA needs to impose a new regulation requiring re-notification when it should already have, or should be able to obtain from authorized states, the information EPA says it needs. If the problem is inadequate coordination between EPA regional offices and authorized states, that problem should be resolved directly between EPA and its authorized states, rather than EPA placing a new and largely redundant burden on generators. (0219)
Response: The Agency and the states rarely, if ever, receive such notifications the commenter is referring to because SQGs are not required to submit such information under the regulations. The form instructions are not a requirement in and of themselves.  Should a facility wish to update its information, they can submit a subsequent notification and as the commenter notes, the form instructions request as much. Also, whereas LQGs provide this information every two years as part of their Biennial Report submission, there is no subsequent re-notification by SQGs required once they receive a RCRA ID. 

As a result, without the 4 year SQG re-notification requirement, and few facilities providing subsequent notification information, EPA and the state's data has become inaccurate over time.  Some of the SQG notifications in our database from the 1980's are still in business, but many are not.  Some states are more stringent than the federal regulations and require SQGs to re-notify in their state, but that information is not collected by all 50 states. EPA has attempted to crosswalk the existing data from the Waste Received (WR) forms submitted by TSDFs back to the generators to determine what generator status the sending generator was.  However this information can only provide a rough estimate. 

The Agency notes that we did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.   

The Agency concluded in developing this rule that the only way to obtain more accurate and up-to-date information that the Agency and the states need is for SQGs to re-notify every four years.   
 
Regarding the comment:

		If the problem is inadequate coordination between EPA regional
		offices and authorized states, that problem should be resolved 
		directly between EPA and its authorized states, rather than EPA 
		placing a new and largely redundant burden on generators.

The problem is not inadequate coordination between EPA regional offices and authorized states. The issue is a lack of accurate and important up-to-date information to manage the RCRA program effectively for protection of human health and the environment.

Comment: EPA is proposing to require all SQGs and LQGs to re-notify EPA and to do so every other year (proposed 40 CFR 262.128). API does not believe such re-notification is necessary. With the impending implementation of the e-Manifest system, EPA will have national data on hazardous generators and virtually real-time information on locations where hazardous waste is being generated. This should eliminate the need for additional and perpetual re-notification. Requiring all hazardous waste generators to provide the proposed re-notification is redundant and unnecessary. (0077)

Response: With respect to using manifest data, currently manifest data is owned by the states and not required to be sent EPA. This is changing with the e-Manifest system under development, in that the e-manifest data will be available to EPA and the states. However, as the system is being designed, specifications do not include a generator category data element, nor is including this data element possible without a regulatory change. However, the Agency will continue to investigate the feasibility of using e-Manifest data to identify active SQGs and LQGs. 

Similarly, both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment.  
Comment: Requiring LQG and SQG facilities to re-notify, regardless of the interval, appears to be unnecessary. Facilities re-notify every time they communicate with the agency and reference their EPA ID number. For example, facilities required to file a Biennial Report are instructed to file a Site ID form (formally form IC), which is basically the same as filing EPA form 8700-12. (0099)
Response: The Agency disagrees with the above comment. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities (e.g., inspections and compliance monitoring) to ensure the protection of human health and the environment. This rule will not change the frequency of biennial reporting requirements for LQGs. However, there is no requirement for SQGs to re-notify when an important change occurs, other than when they move locations and must obtain a new RCRA ID. Hence the need to require SQGs to re-notify every four years beginning in 2021.   
Comment: EPA proposes to require small and large quantity generators to submit a re-notification of Subtitle C Activities by February 1 (SQG) or March 1 (LQG), on a biennial basis. Existing §262.12 is silent regarding re-notification, but the existing rule at §260.42 requires for biennial re-notification of certain hazardous secondary material management activities. Published EPA Instructions for Form 8700-12 (pgs. 4-5) state that a re-notification should be submitted:

- If the contact for your site changes
- If the ownership of your site changes
- If an additional owner has been added or replaced since you submitted your last notification
- If the type of RCRA Subtitle C activity you conduct changes
- If you are opting into or withdrawing from Subpart K laboratory management rules

Authorized states vary in their re-notification requirements, but generators in many states are submitting re-notifications more frequently than biennially, based on the EPA Instruction or state rules/guidance. We suggest that, rather than imposing a fixed biennial re-notification that will duplicate re-notifications submitted at other times, that EPA place the re-notification triggers from the EPA Instructions (above) into the rule itself. The preamble notes that large numbers of SQGs have not re-notified for many years. This is unsurprising, since the criteria for re-notification are found only in a 58-page EPA Instruction that a generator would have no reason to read, unless the generator was already preparing to file Form 8700-12. (0133)
Response: The Agency and the states rarely, if ever, receive such notifications the commenter is referring to because SQGs are not required to submit such information under the regulations. The form instructions are not a requirement in and of themselves.  Should a facility wish to update its information, they can submit a subsequent notification and as the commenter notes, the form instructions request as much. Also, whereas LQGs provide this information every two years as part of their Biennial Report submission, there is no subsequent re-notification by SQGs required once they receive a RCRA ID.

The Agency notes that we did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.   

Comment: This State also believes the proposed requirement for LQGs and SQGs to re-notify every two years is excessive and, in the event that the EPA does require facilities to re-notify, the facilities should only be required to re-notify in the event that information that would be included in the 8700-12 form changes (e.g., the owner/operator changes, or the generator status changes). (0217)
Response: The Agency did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.   

Comment: The proposed reassessments on a two-year interval (and the associated record-keeping requirements that EPA proposes, which are specifically discussed below) are unreasonable and unnecessary for most manufacturing processes. FPA finds that EPA's arguments that the proposed re-characterization requirements would come at a "minimal cost" are simply baseless. In the manufacturing sector, environmental managers do not have the resources to continuously make waste determinations and there is no reason to do so for product lines, even if they are "tweaked" to improve the attributes of these product lines (e.g., shelf-life, shelf-space, artwork, shipping attributes, etc.), because they are made from the same chemicals using the same processes over the lifetime of printing lines. Therefore instead of requiring assessments of waste streams every two years, FPA suggests that a more reasonable interval if this re-assessment requirement is applicable to conditionally exempt generators would be every ten years, preceded by an EPA Federal Register notification of their due date (0240)
Response: The Agency disagrees with the above comments. First, in response to the comment, "In the manufacturing sector, environmental managers do not have the resources to continuously make waste determinations and there is no reason to do so for product lines, even if they are "tweaked" to improve the attributes of these product lines (e.g., shelf-life, shelf-space, artwork, shipping attributes, etc.), because they are made from the same chemicals using the same processes over the lifetime of printing lines" generators have the existing requirement at 40 CFR 262.11 to make a solid and hazardous waste determination at the point of generation and to be aware of any changes in the waste do to environmental exposures or simply the nature of the waste. Whether they choose to make a new waste determination as a result of shelf-life, shelf-space, artwork, shipping attributes, etc. is their decision and also responsibility should a solid waste be found to be a hazardous waste.
Regarding the comment about conditionally exempt generators (i.e., CESQGs/VSQGs), they have an obligation to make an accurate solid and hazardous waste determinations just like SQGs and LQGs. However, they have no reporting and recordkeeping requirements under this rule. 

Other Comments 
Comment: The Agency seeks comment on its proposed change to require periodic notification (e.g., every two years) for SQGs or LQGs or an alternative, such as to re-notify only in the event of a change to certain information, such as (1) change in ownership and (2) change in generator category. The Savannah River Site (SRS) is an LQG and a permitted TSDF owned by the Department of Energy. The first TSDF permit was issued to the site in 1987. The permit is approximately 14 volumes, representing the various facilities included in the permit. The notification and various volumes are revised as necessary. Some of the volumes have been revised twenty-five times over the past twenty-eight years. In addition to the permit revisions, the South Carolina hazardous waste management regulations require quarterly reports on the hazardous waste generated, stored and shipped off-site. The State of South Carolina is very well aware of the hazardous waste management activities at SRS. Requiring a re-notification every two years for this site would be an unnecessary exercise for the site and for the state. It would be much more reasonable to require re-notification if the ownership changed, which is unlikely, or if the generator category changed. (0092)
Response: States may be more stringent than the federal program regarding RCRA regulations, including re-notification and reporting requirements. The Agency did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.   
Comment: If the agency does pursue re-notification, please make the compliance dates and time interval the same for LQG and SQG facilities. Creating a tiered compliance structure creates confusion, especially for organizations that operate multiple facilities with different generator status. (0099 and 0101)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. 
Comment: Re-notification required of SQGs and LQGs (authorized states would be required to adopt this change)

LQGs would re-notify by filing a Biennial Report (BR) in even-numbered years. The Expert Group believes this is adequate since existing LQGs are already used to this requirement and generators are supposed to indicate their current status at the time of filing the BR, which helps weed out one-time LQGs and keep the LQG universe current and accurate. (0125)
Response: The Agency agrees with these comments. 

Comment: While we agree there is an inherent benefit to requiring re-notification for greater data integrity, the administrative burden to collect and maintain this information in RCRAInfo may be too significant. Requiring an LQG to re-notify as part of the biennial reporting cycle will reduce the regulatory burden for the LQG; however, for SQGs the regulatory burden is likely excessive. Perhaps the Agency could consider conducting a pilot study of SQG re-notification before moving forward with an actual regulation. (0185)
Response: The Agency sees no need for conducting a pilot study. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment. This rule will not change the frequency of biennial reporting requirements for LQGs. However, there is no requirement for SQGs to re-notify when an important change occurs, other than when they move locations and must obtain a new RCRA ID. Based on comments received, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions
Comment: The proposed regulations require biennial re-notification of SQG's using EPA Form 8700-12. Many large research Universities have numerous SQG locations. Completing the Form 8700-12 (four or five page form) for 10 or 20 locations creates unnecessary work for both waste generators and state agencies that receive and monitor this information. A more streamlined approach for collecting this data could be for owners to provide a biennial inventory of waste generating locations under their ownership. This inventory would provide the desired facility information to the appropriate regulators, while eliminating undue burden on generators. (0187)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. 


Comment: Clean Harbors generally supports EPA's modification of the rule, however, we are concerned about the requirement to have LQG's report all hazardous waste generated in a calendar year, even if it is managed (disposed) the following year. This provision is very complicated given that counting the manifested shipments within the calendar year is how almost all generators, and vendors like CH that prepare the biennial reports for our customers, account for the generated HW that has been managed. Generators with very large facilities may not realize that a specific production process has generated waste close to the end of the year, especially if it is being accumulated close to the production process, unless it is brought or sent to a central waste management area. This provision is very unworkable and burdensome to the generators. (0243)

Response: The Agency agrees with this commenter. Based on a review and analysis of comments, the Agency has decided to maintain the status quo because, in retrospect, we believe the outcome will remain the same in terms of obtaining a reliable estimate on the amount of hazardous waste generated annually by LQGs.

Comment: EPA must ensure that the all of the re-notification information is indeed available and accessible to the public via an improved RCRAInfo website or a new centralized website, and see that the site is updated consistently to reflect the latest facility information. Moreover, for the same reasons discussed above, the biennial notification requirement must also be applied to CESQGs. (0264)

Response: The Agency agrees with this comment and will continue to update RCRAInfo to reflect the latest facility information. 

Section 4.3.1 - Need for revisions

Comment: As noted by EPA in the preamble, LQGs are currently required to submit biennial reports. Therefore, an additional re-notification requirement is superfluous and entirely unnecessary for LQGs. (0201)
Response: The Agency agrees with this comment and has been clarified in the final rule.
Comment: The proposed requirement for biennial re-notification is neither necessary nor does it provide for greater compliance or environmental improvement. Filing a biennial report already has the net effect of providing notification to EPA of the generators activities and status. This requirement is both unnecessary and does not provide for substantive improvement in either compliance or environmentally sound waste management. (0205)
Response: The Agency has clarified in the final rule that there is no change to biennial reporting. The Agency agrees that filing a biennial report already has the net effect of providing notification to EPA of the generators activities and status.

Section 4.3.2 - Re-notification every two years


All comments organized to this section of the comment outline are addressed under Issue 4.3. 

Section 4.3.2.1 - Re-notification interval


All comments organized to this section of the comment outline are addressed under Issue 4.3. 

Section 4.3.2.2 - Re-notification date


Comment: We prefer SQGs to re-notify on the years opposite the biennial report and LQG notifications (i.e., SQGs re-notify by March 1 of odd numbered years). Because of the administrative burden of processing re-notifications, it would be easier if the SQG re-notifications occurred on a different schedule from the biennial report. (0082)
Response: The Agency agrees with the above comment and has finalized the rule for SQG re-notifications to occur in years opposite the BR.
Comment: EPA proposes that LQGs and SQGs re-notify EPA and the states of their generator status on a regular basis. DTE Energy opposes this proposal as an unnecessary administrative burden without commensurate environmental benefit. Michigan already provides an annual opportunity to update generator status while determining hazardous waste user fees. Notification should only be required for permanent change of generator status or change of ownership. (0098)
Response: States with more frequent reporting requirements are not affected by this rule. 
Comment: .... and the notification period should be extended from 30 to 90 days; (0093)

Response: The Agency believes 30 days is a sufficient amount of time to re-notify EPA or the state if there is a change in the owner or operator, and particularly if the SQG re-notification process has just occurred. However, as finalized, the new owner will not have to notify EPA or the authorized state until required to every four years beginning in 2021. 
Comment: To allow states ample processing time, we recommend a fixed first of the month date be selected from between April and September. The January to March time frame is too close to the time of annual report processing for those states with annual reporting requirements and the October to December time frame potentially impacts the BR process. (0125)
Response: The Agency agrees with this comment and has modified this provision to allow states up to September 1 to receive SQG re-notifications in the reporting year.
Comment: If EPA chooses to require SQGs to re-notify every even numbered year, Dow recommends making this requirement due at the same time as the LQG re-notification on March 1 of every even numbered year to reduce confusion. (0131)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. 
Comment: If EPA truly deems mandatory biennial re-notification by all SQGs a necessity as opposed to a meaningless exercise that continually recollects existing data, then EPA can support their stance by bearing some additional burden and establishing the same reporting deadline for SQGs as biennial reporting for LQGs - March 1st of each even-numbered year. (0152)

Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. 
Comment: We also recommend that if the SQG re-notification is retained, the filing deadline for an SQG should be set later in the year, e.g., September I rather than February 1. (0185)
Response: The Agency agrees and has finalized the rule to require SQG re-notifications no later than September 1 of the reporting year.
Comment: IME recommends that SQGs and LQGs both report on the same date of the same year. We believe it would be simpler and less confusing for most generators to do all their reporting at one time in a single year, particularly facilities that must report as both SQGs and LQGs because of their varying monthly waste production totals. It would be even more convenient for our member companies if the agency were to allow the re-notification to be done in conjunction with the biennial reporting. (0188)
Response: Based on comments received, the Agency has taken a different approach than the approach the commenter has recommended. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. EPA agreed with many other commenters who wanted SQG re-notification to occur in odd-numbered years  -  opposite biennial report submissions  -  in order to reduce or spread the burden for States, as well as corporate and/or public entities responsible for submitting re-notifications for multiple facilities/sites. 
Comment: Due date for the SQG re-notification. Instead of making it at the same time as the Biennial Report, it would work much better for Florida if the date was moved to the fall of the odd years. (0214)

Response: The Agency agrees and the final rule requires SQGs to re-notify no later than September 1 of the reporting year.

Comment: There are several States that currently require SQGs to submit biennial reports which often require the same information as Form 8700-12. For those States, re-notification for SQGs should remain March 1st in even-numbered years according to their regulations. To change the submittal date to February 1 of even-numbered years would require a rule change. (0217)
Response: States can be more stringent than the federal program. The final rule requires SQGs to re-notify no later than September 1 of the reporting year. Therefore, states with earlier reporting schedules should have no problem meeting this requirement. 
Comment: Another State agrees that LQGs and SQGs should be required to re-notify when certain information changes. This State also agrees that SQGs and LQGs should be required to confirm or update their information no less frequently than every two years. However, EPA should allow authorized States to determine the schedule for obtaining the information. Some States do not have the resources to collect re-notification information from all SQGs by February 1 in the same year that biennial reports are due. (0217)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. Similarly, the final rule requires SQGs to re-notify no later than September 1 of the reporting year. Therefore, states with earlier reporting schedules should have no problem meeting this requirement. 
Comment: Another State recognizes the importance of maintaining current and accurate information of the universe of hazardous waste generators, and also notes the burden of entering notification data into the RCRAInfo database falls predominantly to State staff, as is recognized in the preamble of EPA's proposed rule. The rule proposes that SQG re-notification be required by February 1 of each even-numbered year. Considering the large number of SQGs in many States, this State believes the February date would likely overlap with LQG biennial report data entry which begins in January for many States due to early submittal of LQG reports. A couple of States suggest the SQG re-notification deadline occur in odd-numbered years to reduce or spread the burden for States, as well as corporate and/or public entities responsible for submitting notifications for multiple facilities/sites. (0217)

Response: The Agency agrees. Based on comments received, the Agency will require SQG re-notification every four years beginning in 2021 in years opposite biennial report submissions.

Section 4.3.2.3 - Rolling re-notifications
 
Comment: We believe that rolling notifications would impose an unnecessarily heavy burden for regulators, including our office, to keep track of. (0082)
Response: The Agency agrees and is not pursuing a rolling notification option.
Comment: One State believes the "rolling" re-notifications option may possibly work. However, this would require EPA to prepare a report in RCRAInfo that States could use for tracking purposes. (0217)
Response: Upon further analysis and evaluation of this option, the Agency believes it would be too difficult to implement nationally and is not pursuing a rolling notification option. 
Comment: However, the MPCA does not support the variant suggested by EPA of `rolling' notification due dates. Such an approach was tested in Minnesota between 1983 and 1985, and found to be confusing for both generators and regulators alike, particularly for corporate entities that may have several sites. Even in a hardcopy approach, the MPCA found that a single defined due date for re-notifications was most understandable by generators and enforceable by regulators. Especially with currently available electronic submittal capabilities, processing of standardized information can be mainly automated, with direct input of received data into databases, or after at most a brief error-checking stop. (0232)
Response: The Agency agrees with the comments above and it will not pursue a "rolling average" approach to re-notifications.

Section 4.3.2.4 - Re-notification in the event of a change

Comment: In order to solve the potential problem cited in the preamble (generator status changing back and forth without re-notification), and because we believe that generator status is a piece of information so critical that it should be kept constantly up-to-date, we recommend adding the requirement for re-notification when generator status changes in addition to the 2-year cycle of re-notification. The following changes could also trigger required re-notification (within 30 days): change in generator status, change in address*, change in contact person or contact information, change in ownership. *Although change in address actually requires a new ID number to be assigned, we believe that listing it in the rules as a change requiring "re-notification" will assist generators in understanding that they need to submit notification immediately upon changing their operating location. Regulating agencies can then assign a new number, and deactivate the existing number if appropriate. Currently, we frequently find out that a business has moved only by inspecting a new location or attempting to inspect an old location where they are no longer operating, wasting program resources.(0082)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). In fact, the Minnesota Pollution Control Agency comments strongly cautioned EPA to not adopt this approach and to learn from Minnesota's negative experience requiring re-notification when events occur. EPA and the states also have experience regarding how to implement a census re-notification process via the Biennial Reporting process for LQGs that they can apply to the new SQG re-notification process.

Comment: It would be less burdensome to only require re-notification when there has been a significant change to facility status, address or ownership. (0099)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). In fact, the Minnesota Pollution Control Agency comments strongly cautioned EPA to not adopt this approach and to learn from Minnesota's negative experience requiring re-notification when events occur. EPA and the states also have experience regarding how to implement a census re-notification process via the Biennial Reporting process for LQGs that they can apply to the new SQG re-notification process.

Comment: EPA proposes to require all SQGs and LQGs to re-notify EPA of their site identification information, regardless of whether any information has changed. 80 Fed. Reg. at 57,947. Such a requirement will not increase environmental protection because EPA will be aware already of the information to be provided through its electronic manifest system. Instead, it just leads to increased paperwork and burden on both the generator and agency personnel.

EPA offers a sensible alternative for consideration  -  requiring re-notification for specific changes  -  ownership or generator category. This option more appropriately matches the burden and benefit. See 80 Fed. Reg. at 57,948. Re-notification in the event of a change of circumstances is a prudent and reasonable requirement, and EPA should adopt the alternative in place of the proposed provision. (0107)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). Similarly, as mentioned above, E-manifest is not able to identify the category of the generator shipping its waste.
Comment: BNI-WTP suggests the best alternative would be to require MQG (SQG) or LQG to re-notify if there is a change in ownership or generator status (0123)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: In addition to the 2-year time frame for LQGs to re-notify and the proposed 4-year time frame for SQGs to re-notify, the Expert Group proposes re-notification be required at any time for any/all handlers that are required to have an EPA ID Number, if any of the following information changes:
:: Site Name
:: Ownership
:: Operator
:: Generator Status or other Regulated Activity changes, including site closure
o EPA ID Inactivation: The RCRA Subtitle C Site Identification (Site ID) form has data field requirements that potentially cannot be met when inactivating a site (e.g., current owner and/or operator may not be known). We suggest either a new form specific to requesting inactivation of an EPA ID Number be developed or perhaps a new source type be created within RCRAInfo specific to inactivation. The new source type could have a much smaller set of data requirements so the record would be easier to process.
o Closure of Accumulation Units: As stated in the LQGs Closing an Accumulation Unit section later in this document, the Expert Group would prefer that all sites required to have an EPA ID Number submit a re-notification within 30 days of when they close. (0125)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: The Expert Group suggests that if an SQG were to re-notify under the above conditions within 12 months of the four-year anniversary, they would not be required to notify again within the next four years unless they had another change in the above information before that time. 

The Expert Group also recommends that any handler with an EPA ID Number re-notify when Site Contact information changes, but does not believe this should be required. (0125)
Response: The Agency has adopted the above suggestion and will allow SQGs that re-notify one year or less before the state's re-notification date to forego re-notification.
Comment: Require re-notification by rule with event-based triggers (rather than biennially). This would avoid imposing an additional burden on those generators who follow the EPA Instructions and state rule requirements, while making clear in the rule itself that re-notification is required when site conditions change. (0133)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: NextEra Energy supports EPA's alternative re-notification proposal requiring notification due to a change in ownership or a change in generator category as preferable to a bi-annual re-notification. The alternative is preferable as it avoids the unnecessary burden on the regulated community of resubmitted unchanged information and the burden on State agencies required to process unchanged information to no benefit. Also, application of the alternative would more clearly identify locations where a change has occurred. (0163)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: DC also supports the proposed modification which mandates re-notification within the suggested 30 days for change of owner or operator. DC recommends expanding re-notification to also include changes in waste streams or contact person within the same 30 days. (0248)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: USWAG strongly believes SQGs should not be required to submit periodic re-notifications unrelated to changes in ownership. Imposing this requirement would reduce the incentive for a generator to reduce waste and become a SQG. Moreover, EPA has presented no justification for requiring re-notification when SQGs change status and become LQGs, which will otherwise become obvious through the existing biennial reporting process. Therefore, requiring periodic re-notifications for SQGs is unnecessarily burdensome and does not provide any additional benefit to the Agency. As mentioned, USWAG encourages EPA to require re-notification only in the event of a change in ownership. With regard to such re-notification, USWAG strongly urges EPA to extend the notification period from 30 days to either 60 or 90 days.

SQGs and LQGs should be required to re-notify only in the event of an ownership change, (0093)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify) when a specific event occurs, such as change in ownership.
Comment: Dow does not support re-notification by SQG before February 1 of even numbered years; EPA should require SQG to re-notify EPA upon the change in ownership or operational status (to LQG or VSQG or upon cease of operation). (0131)
EPA should require SQG's to re-notify upon change in status or cease in operation instead of every two years as is proposed in section 262.18(d)(i)  (0131)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify) when a specific event occurs, such as change in ownership. Under the final rule, LQGs will need to notify EPA or their state when they close their facility. 
Comment: The MPCA also does not support re-notification triggered only by information changes and strongly cautions the EPA against adopting this approach. The MPCA's experience with almost three full decades of hazardous waste notification and re-notification handling is that it is the very requirement to submit a periodic re-notification that at least reminds, and often motivates, generators to re-check the information already on file (i.e. most generators often won't know what is on file with their regulator until they check in order to submit a re-notification). Generator employee turnover and other changes (E911 address reallocation, e-mail provider switching, business ownership transfer, etc.) preclude most businesses by the MPCA's observation from maintaining an accurate awareness of what was previously submitted to regulators, thus only requiring re-notification on information changes most commonly results in a site `dropping off the radar' and comprising an information black hole unless and until it is proactively contacted by regulators in future (during scheduled inspections or upon a complaint). (0232)
Response: EPA agrees with this commenter that event-triggered re-notifications (based on change in information or on occurrence of certain events) are not effective, and is not adopting this approach. While the Agency took comment on this option, we, like this commenter, believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify) than an event-triggered re-notification process. In fact, the above commenter strongly cautioned EPA to not adopt this approach and to learn from Minnesota's negative experience requiring re-notification when events occur. EPA and the states also have experience regarding how to implement a census re-notification process via the Biennial Reporting process for LQGs that they can apply to the new SQG re-notification process.

Comment: Our stated preference would be for recertification forms only to be filled out when any major changes are made for each generating location required to fill out the form. At that time, the form would be due to the EPA within 30 days of the changes. (0142)

 Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: The stated goal of maintaining accurate information for SQGs can be achieved through notification of facility changes (ownership, contact information, etc.). (0152)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: Since, current regulations do not specifically require notification of a simple address change, NextEra Energy request that EPA clarify the full basis for the statement and how state request to the contrary should be handled. (0163)
Response: States can always be more stringent than the federal program and require such information. 
Comment: We suggest adding "stopped operations" to the list of SQG event-drivers that trigger re-notification.. (0183)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.
Comment: Regarding re- notification for changes in facility ownership

Are SQGs that do not re-notify subject to enforcement action for violation of an independent requirement?
Response: Yes, SQGs that do not re-notify may be subject to an enforcement action. 
. 
Comment: CESQGs can be episodic SQGs - do they have to re-notify?
Response: Yes, they will have to notify EPA or their state if they want to take advantage of the episodic generation provisions in today's rule.

Comment:  Non-notification has been considered significant noncompliance under the enforcement response policy. What is EPA's expectation regarding SQGs that do not re-notify?
Response: SQGs not re-notifying every four years as mandated by EPA or their authorized state will be out of compliance with this independent requirement and subject to possible enforcement action. 
Comment: If a generator goes bankrupt and abandons waste, leaving the landlord responsible for waste disposal, does the landlord have to re-notify? Or can the landlord sign the manifest "on behalf of" the tenant that abandoned the waste?  (0214)
Response: While landlords may lease the property, it is the generator with the RCRA ID that is responsible for complying with all applicable RCRA regulations. LQGs that close their facility are subject to notification and clean closure requirements, among other RCRA requirements.
Regarding the question, can the landlord sign the manifest "on behalf of" the tenant that abandoned the waste, this question is beyond the scope of this proposed rule. Although EPA is not obligated to respond to this comment since it is beyond the scope of the proposed rule, nevertheless, EPA provides the following general response as an opportunity to explain the RCRA regulations. A landlord could potentially be a generator of hazardous waste, depending on specific facts.  If a landlord becomes a generator, he must sign a manifest for any off-site hazardous waste disposal. However, if a landlord is not a generator, a landlord would not sign a manifest "on behalf" of a tenant who is a generator.
If the landlord ends up managing the bankrupt generator's hazardous waste, the landlord becomes a co-generator of this hazardous waste and must comply with all applicable generator requirements. If the landlord arranges the off-site transportation of its tenant's hazardous waste, the landlord must comply with generator manifest requirements.  Specifically, the landlord must prepare and sign the manifest and identify itself as the generator on the manifest on behalf of both parties. In this scenario, both the landlord and the tenant are held jointly and severally liable for compliance with the generator requirements at 40 CFR Part 262, though only one party needs to meet these requirements. However, EPA reserves the right to enforce against any of the parties if the requirements of Part 262 are not adequately met. 
Comment: One State believes in order to solve the potential problem cited in the preamble (generator status changing back and forth without re-notification), and because the generator status is a piece of information so critical that it should be kept constantly up-to-date, they recommend adding the requirement for re-notification when generator status changes in addition to the two-year cycle of re-notification. (0217)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Comment: 1. Re-notification for small and large quantity generators should only be required upon change of status.

EPA seeks comments regarding proposed re-notification requirements for small and large quantity generators. 80 Fed. Reg. 57,947-48. The Agency should require generators to submit notifications or re-notifications only upon a change in status. As EPA noted in the proposal, this would appropriately reduce the burden, particularly on small quantity generators, whose status changes are infrequent. Id. Requiring an update upon change of status furthers the Agency's stated goal of retaining up-to-date information on the status of generators without imposing unnecessary burdens. [Footnote 2: PCA members believe it would be inappropriate for EPA to require small quantity generators to submit re-notification more frequently unless already required by a state regulator. However, in the event EPA selects this option, which it should not, it would be less burdensome for generators to submit notification on 2 year calendar intervals at a date certain than it would be to do so on a rolling basis.] (0241)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Comment: If EPA chooses to include re-notification in a final regulation, then ACA highly recommends EPA adopt one of its proposed alternative approaches to re-notification in order to minimize burden on generators and the as well as the states. EPA's proposed alternative approach is that instead of requiring LQGs and SQGs to re-notify every two years or a determined period of time, LQG and SQG must only re-notify in the event of a change to certain information, such as a change in ownership and change in generator category. This will both satisfy EPA's interest in eliminating outdated information, and will not waste the resources of states or regulated entities subject to this requirement. (0262)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Comment: In order to assure compliance and oversight, EPA should also require generators to submit additional notices whenever there is a change in generator category or ownership, so that the information available to authorities and the public is always current and comprehensive. In light of the possible limitations in notices of changes, however, such notices should be required in addition to, but not in place of, the proposed biennial notification requirement, which provides regular reporting. (0264)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Section 4.3.3 - Other


Comment: EPA might even consider creating a method to withdraw old/obsolete identification numbers. The need for re-notification appears to be a symptom of antiquated data management systems within the agency and internal efficiencies should be considered before placing additional burdens on the regulated community. The fact that a federal agency in the 21st century is proposing expanded use of form submittal suggests that not all technology solutions have been explored. (0099)
Response: First, EPA notes that it is the states, and not EPA, that are primarily responsible for maintaining generator information, including cleaning up or removing RCRA IDs that are no longer active. Moreover, EPA disagrees that these information gaps are solely a result of internal information management inefficiencies and a lack of technology solutions. The problem lies in the lack of updated information that is submitted by the regulated community. In any event, SQG re-notification should facilitate this information management cleanup activity.
Comment: WRPS requests the addition of text to this proposed change to specify that reporting to authorized states using state forms in lieu of EPA forms meets this requirement. (0123)
Response: States may continue to use their own forms provided the forms include federal required information.
Comment: Clarification needs to be made if re-notification is in addition to state specific reporting requirements that are already in existence. Our local EPA offices rely upon our state regulators to provide detailed information about an EPA generator We see this as a means of streamlining administrative burden for all parties. (0142)
Response: Depending upon the state, SQG re-notification may or may not be in addition to existing state reporting requirements. 
Comment: If change in status notifications can be made electronically through a federal and/or state web-site, should result in a higher compliance rate. (0160)
Response: The Agency agrees with this comment. Comment: In addition, those States should be able to use their biennial report forms instead of Form 8700-12 to collect SQG information. (0217)
Response: The biennial report forms include Form 8700-12. So yes, the agency agrees with this comment. 
Comment: Additionally, the use of electronic manifesting has the possibility of making all of these requirements obsolete, as it could be possible to data-mine a facility's manifests and determine their generator status, thereby eliminating the EPA's concern about having an outdated count of LQGs and SQGs. (0217)
Response: The use of e-manifest data may be able to assist generators and states in completing the biennial report but not in completing all reporting requirements, such as SQG re-notifications. 
Comment: One State suggests that the regulatory language in §262.18 reference re-notification by means of "myRCRAId and/or use of the EPA Form 8700-12." By encouraging use of myRCRAId, this lessens the manual data entry burden on States, as well as users. (0217)
Response: The Agency agrees that this is a good suggestion but use of myRCRAId is voluntary and up to the state to emphasize in their reporting requirements.
Comment: Another State suggests to reduce the burden for re-notification on the State (and on generators), generators with no changes to report should re-notify by being able to search for their information online and click a `no changes' button to constitute re-notification for that year. (0217)
Response: The Agency will look into the feasibility of providing such a mechanism. 
Comment: DC recommends EPA provide a pre-programed report in RCRAinfo to generate a list of facilities that are overdue so that the States can easily follow up with those facilities that have not complied.(0248)
Response: The Agency will look into the feasibility of providing such a mechanism. 

Section 4.4 - Determining generator category using 262.13

(a) Comment: Some commenters supported adding § 262.13 to the regulations to clarify how to count hazardous waste to determine generator category. (0082, 0085, 0093, 0134, 0178, 0248) Commenters stated that the proposed section would provide generators with greater clarity. (0134, 0178) One commenter stated that this requirement would make enforcement of requirements to make a generator category determination more straightforward. (0178)
One commenter supported the revision to make clear that generators have only one category in a calendar month. (0217) 
(a) Response: EPA agrees with the commenters and is finalizing the addition of § 262.13 to describe how to count hazardous waste when making a generator category determination and to demonstrate what category a generator is in when it generates various types of hazardous waste.
(b) Comment: Several commenters stated that the wording of proposed §262.13 should be changed to put the emphasis on knowing your generator category rather on performing the steps in the regulation every month. (0082, 0131, 0178, 0224) One commenter stated that this requirement is not necessary for LQGs to meet as there is no maximum threshold. (0262) Commenters suggested language stating that § 262.13(a) should read "a generator must determine what category it falls into monthly" Instead of "a generator's category is determined monthly" or other language conveying that the generator category be calculated every month. (0082, 0224) One commenter stated that most generators will generate fairly constant levels of hazardous waste and will not need to perform calculations very often to ensure that they are in the correct generator category and that calculation is only needed when a generator expects that its generation in a particular month will be close to the limit of its generator category. The commenter suggested that this rule should be rewritten to make clear that when a calculation is conducted, it should account for wastes as specified in this rule, but that a monthly calculation is not required and that EPA should not be prescriptive in the method a generator uses to determine the quantity of hazardous waste generated in a month. The commenter recommend the following proposed regulatory text: "§ 262.13 (b) Generators of both acute and nonacute hazardous wastes. A generator who generates both acute hazardous waste and non-acute hazardous waste in the same calendar month shall determine its generator category for that month by doing the following:" (0131) One commenter stated that the language should be revised to read: "Determination required. A generator of hazardous waste must determine their generator category. A generator's category is defined based on the amount of hazardous waste generated each month, and may change from month to month. For the purposes of notification as required by §262.18 of this chapter and compliance with the generator requirements of §§262.14, 262.16, and 262.17 of this chapter, a generator's category would be the category associated with the greatest amount of waste generated in any calendar month throughout the year, except as provided for by §262 Subpart L. This section sets forth..." (0178)
(b) Response: EPA agreed with the commenters that the important requirement in § 262.13 is that the generator determine its category every month, not that it follow the exact procedures in the section to do so. EPA has revised the language from the proposal to state that "A generator must determine its generator category. A generator's category is based on the amount of hazardous waste generated in each month and may change from month to month." 
(c) Comment: One commenter stated that the proposed § 262.13 does not discuss how generators generating either just acute or just non-acute hazardous waste should count their wastes. (0217) 
(c) Response: EPA agreed with the commenter that this section should include clear procedures for generators generating either just acute or just non-acute hazardous waste and has added these procedures as § 262.13(a). 
(d) Comment: One commenter noted that the proposed rule does not address whether or how to count hazardous waste at an LQG when it has come in from a VSQG in the same company under the new consolidation provision. The commenter suggested that the waste not be counted toward the monthly generation amounts at the generator but that it should be counted toward accumulation limits for generators. (0103)
(d) Response: EPA agrees with the commenter that waste generated at a VSQG and then consolidated at an LQG is not counted as waste generated at that LQG. Under federal regulations, there are no accumulation limits for LQGs. 
(e) Comment: One commenter strongly supported the inclusion of Table 1 to explicitly describe the generator categories in the regulations. (0232) The commenter stated that including this information explicitly in the regulations is useful both for generators and for the courts in enforcement actions. (0232)
One commenter noted that there is no reference in the regulations in § 262.13 to the Table 1 for that section that was proposed and recommended that EPA include a reference in the final rulemaking. (0217)
One commenter suggested modifying Table 1 in the counting regulations to include the accumulation limits for VSQGs and SQGs. (0214)
(e) Response: EPA is finalizing Table 1 as part of the new §262.13 and has added an explicit reference to it in the regulatory text, as suggested by the commenter. EPA has not added the hazardous waste accumulation limits for VSQGs and SQGs to Table 1 because the accumulation limits are not part of the definition of the generator and do not have a role in category determination. When accumulation limits are violated, those wastes must be managed under the standards for the higher generator, but the generator does not change categories. 
(f) Comment: One commenter asked how Table 1 for counting in § 262.13 works for states that have no adopted the 2008 or 2015 DSW rule. For example, on-site treatment or reclamation vs. counting rules. (0214)
(f) Response: The Definition of Solid Waste (DSW) rules regulate whether or not a waste is a solid waste. If a hazardous secondary material is managed under the new DSW exclusions, that material never becomes a solid waste and therefore cannot be a hazardous waste. The counting rules in § 262.13 would not apply to those materials. 
(g) Comment: One commenter stated that EPA should clarify that generators, or at least retail generators, may "reasonably" utilize their business' knowledge to determine their yearly generator status and that EPA should provide generators guidance on what type and amount of information it would need to have to meet the "reasonableness" standard. The commenter also stated that EPA could use the Final Rule to specify to retail generators that they may use hazardous waste generation data gathered from past generation to establish generator status for current and future operations. by establishing an average for each retail store on an annual basis, such as taking the total annual volume and dividing it by twelve months to derive an average monthly volume. The commenter provided an example that as long as the average monthly volume is below 220 lbs., then the store would be CESQG. The commenter argued that there is no legal constraint on the EPA providing guidance on what is an acceptable methodology for a generator to establish its monthly waste generation totals [Footnote 15: Retail Associations' Comments to Proposed Rule, December 23, 2015, page 38.] and stated that the law requires a generator to determine its generator status on a monthly basis but does not state how to do so with any specificity. The commenter continued by stating that EPA need to use the final rule to acknowledge that Walmart has clearly done enough to determine its status through detailed data gathering and to set forth acceptable parameters for retailers to use business knowledge and waste data to determine generation status on a forward-looking basis. The commenter argued that EPA should be willing to allow averaging because practically, "averaging" would solve a huge issue for retailers: counting waste. The commenter also stated that if EPA does not deal with the "look back" issue, retailers must continue to always operate an SQG or LQG compliant program based on the chance that one or two months of the year a facility might cross the thresholds. The commenter argued that the "look back" problem means that even a hot dog stand vendor with a cart on the corner, would never be able to claim CESQG status based on his knowledge that his business obviously never generates more than a few aerosol cans or cleaning products a month because he would be forced to track and maintain his actual waste generation numbers and not dispose of his wastes until the end of the month when he can prove his generator status. (0233) 

Response: The RCRA statute states that a small quantity generator regulations apply to "hazardous waste generated by a generator in a total quantity of hazardous waste greater than one hundred kilograms but less than one thousand kilograms during a calendar month." EPA interprets the language of the RCRA statute to mean that a generator's category is based on the amount of waste it generates in a calendar month and does not allow for a regulatory structure in which the category is based on a monthly average or a prediction of monthly generation rates, such as those the commenter suggests. In addition, EPA believes that the implementation and enforcement implications of such a regulatory structure would make it very difficult to implement by EPA and the states. In evaluating the comment, EPA also determined that the commenter's suggestion of examining waste per month over a year or longer to determine and average waste amount, would require more "looking back" at waste generation numbers than is currently required, since such an average would have to be updated on a regular basis. Finally, EPA recommends that if a generator is generating hazardous wastes in inconsistent amounts and is often near the threshold for being a small quantity generator or a large quantity generator, operating regularly at that higher level would be a responsible approach and would remove any uncertainty about regulatory requirements. That said, EPA is examining other areas of the regulations and generator program where it can address the concerns of the retail sector in complying with the RCRA regulations.

Section 4.5 - Documentation of waste accumulation unit inspections


Documentation of Inspections of Waste Accumulation Units (Sections 4.5 to 4.5.4)

Introduction
As part of the of the proposed Hazardous Waste Generator Improvements rule, the Agency at 80 FR 57952-53 requested comment on requiring generators to document the results of their container, tank and drip pad inspections. More specifically, the Agency requested comment on whether to require the following: (1) both SQGs and LQGs document the results of their required "at least weekly" container inspections; (2) SQGs accumulating hazardous waste in tank systems document the results of their tank inspections; and (3)both SQGs and LQGs accumulating hazardous waste on drip pads document the results of their drip pad inspections.
For purposes of this document, we have combined the response comments of (1)-(3) above because the reasons for and against inspection documentation did not vary across the different types of waste accumulation units. 
Commenters were mixed on the need to require SQGs and LQGs to document the results of their inspections associated with containers, tanks and drip pads. Commenters in favor of requiring documentation of waste accumulation unit inspections (0060, 0082, 0085, 0092, 0108, 0116, 0126, 0134, 0164, 0178, 0181, 0182, 0185, 0188, 0189, 0195, 0206, 0217, 0223, 0229, 0248) provided one or more reasons to support documentation of inspections, including: the documentation process acts as a reminder to ensure there are no problems; the requirement is not unduly burdensome; companies are already in the habit of preparing and maintaining these types of records; the records are useful in tracking containers within the accumulation areas and corrective actions needed and taken; allowing a site's management/executive staff to review whether frontline employees are performing such inspections and ensuring they are happening; documenting that no releases occurred within the unit; and documentation of inspections will result in greater protection against hazardous waste releases into the environment.
Response: The Agency agrees with these comments but believes further analysis and evaluation is required before a final decision can be made to document the results of waste accumulation unit inspections. However, the Agency believes documentation of unit inspections is a best management practice that serves to protect generators from possible releases and cleanup and which also bolsters the preventive aspects of the RCRA program. EPA encourages generators to examine the feasibility of adopting this practice as part of their standard operating procedures. 

Comment: One State supporting the requirement for documentation of weekly inspections by generators suggested adding documentation of test/inspect/maintaining emergency equipment, so that compliance may be monitored by regulators. (0217). 
Response: The Agency believes this comment is beyond the scope of what was proposed.

Comment: One commenter suggested that it would also be very useful to both facility personnel and inspectors if, in addition to documentation of the inspections, generators are also required to document any corrective actions taken to correct issues identified during the inspections. (0223)
Response: The Agency believes that while further analysis and evaluation is required before a final decision can be made to document the results of waste accumulation unit inspections, certain best management practices can still be applied by generators. For example, documenting any corrective actions taken to correct issues identified during the inspections is a best management practice that serves to bolster the preventive aspects of the RCRA program (i.e., don't let releases occur). EPA encourages generators to examine the feasibility of adopting this practice as part of their standard operating procedures. 

Commenters not in favor of requiring documentation of waste accumulation unit inspections (0077, 0093, 0107, 0160, 0212, 0219, 0220, 0240, 0241, 0253) stated that adding additional recordkeeping requirements shifts the focus away from actual storage practices to secondary recordkeeping practices; there wasn't sufficient justification for imposing this requirement; there was no added benefit because accumulation units in poor condition have obviously not been regularly inspected and could most likely be cited for failing to inspect at least weekly; many generators already document their inspections as part of its best management practices, and the Agency would be better served by increasing outreach to small generators to increase awareness of the inspection requirement. 
Response: The Agency believes that while further analysis and evaluation is required before a final decision can be made to document the results of waste accumulation unit inspections.

Comment: One commenter stated that EPA should clarify that these requirements only apply to units in central accumulation areas and do not apply to all satellite accumulation areas ("SAAs"). In SAAs, generators manage a wide variety of wastes in many locations throughout a facility and these containers may not even be present in a given location for a full week. Moreover, these containers always remain under the control of the generator. (0093)

Response: SQGs and LQGs accumulating hazardous wastes in satellite accumulation areas are not required to inspect their containers under today's final rule (as with the previous rule as well) so EPA does not think additional clarification is necessary. To the extent these containers remain under the control of the operator, ensuring releases do not occur should be a best management practice easily implemented. 

Comment: One commenter mentioned that many states already have this is a requirement and many generators already record inspections. For these reasons, this proposed requirement should not be overly burdensome to industry. I would also encourage EPA and states to allow facilities to use technology (e.g., tablets) to document (record) inspections. (0160)
Response: Because of such comments, the Agency has held off in making a final decision to document the results of waste accumulation inspections until further analysis and evaluation occurs.
Comment: One commenter did not think additional recordkeeping was necessary because such records are already maintained and because recordkeeping is the most typical kind of enforcement violation that inspectors find. This commenter went on to say if this requirement is retained EPA should make compliance more flexible. Electronic pads are frequently used on-site to maintain such records instead of paper logs at the location of equipment. These records are more accessible to managers and should be an acceptable alternative. (0240)
Response: The Agency agrees that if generators voluntarily conduct waste accumulation unit inspections, use of electronic tablets may prove a cost-effective investment since it easily can maintain a history of inspections and associated findings.

Other Comments
Comment: One commenter (0160) stated that generators should be allowed to use tablets or similar devices to perform required container and tank inspections. As long as the inspection data cannot be tampered with or modified by the company (e.g., date and time of the inspection, the person performing the inspection, inspection findings, etc.). 
Response: The Agency agrees that if generators do voluntarily conduct waste accumulation unit inspections, use of electronic tablets may prove a cost-effective investment since it easily can maintain a history of inspections and associated findings.
Comment: One commenter (0217) suggested that if EPA were to require documentation of weekly inspections, then they should be accurate. Inspections performed by State officials often reveal a facility's weekly inspections indicate everything is fine, yet the inspection reveals the facility has been failing to correctly document inspections as evidenced by the labeling, dating, and condition of containers. This commenter also stated that they believe inspections should be documented regardless of the amount of waste generated or accumulated. 
Response: The Agency agrees with the above comments as best management practices that should be voluntarily adopted. 

Comment: This commenter (0217) also stated that EPA should clarify the definition of "weekly" to mean within seven (7) days. The lack of clarity regarding the definition of weekly has been a significant source of confusion for generators and has resulted in violations on multiple occasions. 
Response: This comment is addressed below with several others.
Comment: One commenter (0219) stated that they do not think a signature should be required on the inspection forms. However, if required, the rule should allow the "signatures" to be any form of employee identification. Many plant inspection forms are completed by personnel electronically and they sign by entering employee identification numbers. EPA's rule should accommodate this common practice. 
Response: As stated above, the Agency is not moving forward with requiring generators to document the results of their waste accumulation unit inspections. However, we defer to any states that already require documentation of waste accumulation units in determining whether inspection forms may be signed electronically. 
Comment: Four commenters (0078, 0096, 0217 and 0256) requested that EPA clarify the term "at least weekly" as the term "weekly" is not defined in the regulations. One commenter (0078) understood the term to mean "once each calendar week". This same commenter (0078) referenced one piece of EPA guidance from 1983 that states "this term is taken to mean that "there must not be more than 6 calendar days between inspection dates [Footnote 8: EPA, "Permit Applicants' Guidance Manual for the General Facility Standards of 40 CFR 264", SW-968, October 1983, p. 5-81.]." Note that this guidance is for applicants for final status permits and hence is unlikely to be consulted by generators. This inflexible interpretation is being understood as the requirement by some authorized states. Other states have modified the language to specifically allow inspection once each calendar week. Please clarify that "weekly" means "once each calendar week" or provide justification for not allowing more than 6 calendar days to elapse between inspections." 
Another commenter (0096) requested EPA "consider clarifying what is meant by "weekly" inspections. Is an inspection done on Monday of one week and Friday of the next week with eleven days in between acceptable? If the intention is that inspections be done at least every seven days, defining "weekly" or replacing it with "every seven days" would be clearer."
Another commenter (0217) stated that EPA should clarify the definition of "weekly" to mean within seven (7) days. They stated, "The lack of clarity regarding the definition of weekly has been a significant source of confusion for generators and has resulted in violations on multiple occasions."
Still another commenter (0256) requested that EPA clarify the meaning of "at least weekly", i.e., whether it means at least once per calendar week or if it means no further apart than seven days to the hour. They stated they believe the latter would be unreasonable as an inspection made Monday morning one week and Monday afternoon the following week would be longer than seven days to the hour. 
Response: The Agency believes the term "at least weekly" to mean "at least once each calendar week." Under this interpretation, while the calendar day an inspection could occur may change from week to week, one inspection would be required to occur within the calendar week as identified by the generator. Thus one generator could define their calendar week as Monday through Sunday while another generator could define their calendar week as Wednesday to Tuesday of the following week. Whatever the prescribed calendar week would dictate the days an inspection would be required to occur. 

Section 4.5.1 - Container inspections (SQGs & LQGs)

All comments organized to this section of the comment outline are responded to under Issue 4.5. 

Section 4.5.2 - Tank inspections (SQGs)

All comments organized to this section of the comment outline are responded to under Issue 4.5. 

Section 4.5.3 - Drip pad inspections (SQGs)

All comments organized to this section of the comment outline are responded to under Issue 4.5. 

Section 4.5.4 - Other

All comments organized to this section of the comment outline are responded to under Issue 4.5. 

Section 4.6 - Closure requirements

Comment: Part 262.17(a)(8)

Although NMED agrees with including closure for LQGs, the following questions arise;

1. Does this section apply to a facility that changed their generator status to LQG, one or twice during their operations?

2. Is this requirement retroactive or going forward?

3. How will the new episodic generator rule apply to this section?

4. How will regulators enforce this rule on facilities that go out of business? (0060)
Response:

 Does this section apply to a facility that changed their generator status to LQG, one or twice during their operations?

As has always been the case, implementation of when the LQG closure requirements apply in the case when the generator changes generator status up from VSQG and SQG to LQG and from LQG down to SQG and VSQG, is a site-specific determination. If a facility has been an LQG during its lifetime, technically the LQG closure provisions apply. But, EPA recommends that a generator work with its state especially if the facility has only been an LQG for a short time during its lifetime.  EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure.. But, EPA recommends that a generator work with its state especially if the facility has only been an LQG for a short time during its lifetime.

 Is this requirement retroactive or going forward? 
   Answer: There are only 2 new provisions under the reorganized LQG closure section at 262.18(a)(8).  These are (1) the provision to notify prior to closure and upon closure and (2) the provision that container central accumulation areas must either be cleaned closed or closed as a landfill like other HW accumulation units (i.e., tanks, containment buildings, and drip pads).  Both of these new provisions are not retroactive and only apply going forward once the final rule is in effect. The other closure provisions for LQGs are simply being moved into 262 to make it easier for the regulated community. The rest of these closure provisions have applied to LQGs before this final rule and will continue to apply going forward.
 How will the new episodic generator rule apply to this section?
   Answer: A VSQG or a SQG generator who has an episodic event under 40 CFR 262 Subpart L and would normally become an LQG, will now be able to maintain their normal generator category provided they comply with all of the conditions. Thus, they won't become an LQG and trigger the closure requirements. 
 How will regulators enforce this rule on facilities that go out of business?
   Answer: LQGs will be required to notify EPA or their state using form 8700-12 no later than 30 days prior to closing the facility and also notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). If the facility cannot meet the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv), then it must notify EPA using form 8700-12 that it will close as a landfill under § 265.310 of this chapter in the case of a container, tank or containment building unit(s), or for a facility with drip pads, notify using form 8700-12 that it will close under the standards of § 265.445(b). 
Comment: As an initial matter, we suggest that closure requirements should only apply to LQGs that regularly operate at this category. Facilities that are only regulated as LQGs less than half of the year should not be subject to these standards. These requirements would otherwise penalize facilities that were only episodically triggering this classification and impose significant costs and burdens on these facilities when they do not regularly manage these volumes of waste. (0093)

Response: EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements. Similarly, closure requirements will not apply to wastes accumulated in satellite accumulation areas or situations where either a VSQG or SQG has an episodic event resulting in a generator generating 1,000 kilograms or more in a calendar month that choose to take advantage of the episodic generation provisions in this rule. 
Comment: USWAG adamantly opposes the extension of closure standards to containers used to accumulate hazardous waste at LQGs. These units differ significantly from tanks, drip pads and containment buildings in that they are portable (meaning they can move from place to place within a facility and can even permanently leave a facility). Requiring closure for these units will require generators to (1) determine every place at which a container was present for central accumulation, and (2) ensure clean closure, or (3) treat the area as if it was a landfill. This would be nearly impossible for some facilities to perform retrospectively, and would be incredibly burdensome even if it was only a prospective requirement. Furthermore, this requirement is wholly unnecessary since central accumulation areas are already subject to weekly inspection requirements and secondary containment and spill remediation requirements. If EPA insists on adopting this approach, it should ensure the regulatory text clearly delineates that this requirement does not apply to satellite accumulation areas or remediation projects where roll offs are used to accumulate waste. (0093)
Response: The Agency disagrees with the above commenter. Just because an LQG accumulates hazardous wastes in containers doesn't exclude the facility from the same closure requirements as an LQG accumulating hazardous wastes in tanks, drip pads and containment buildings. Considering many LQGs accumulate hazardous wastes in containers makes this an even more important reason to require closure. 

LQGs will be able to close a waste accumulation area and reopen it if it so chooses. All it must do is document where the waste accumulation area was and clean close when the facility closes or clean close when the unit closes.  For facilities in business for many years, this may or may not be a challenge in identifying waste accumulation areas they may no longer use. Similarly, as the commenter points out, this should not be a difficult provision to implement and comply with if they conducted their weekly inspection requirements, included secondary containment and spill remediation requirements.

Comment: Closure: The proposed rule also includes several changes to generator closure regulations. [Footnote 18: 80 Fed. Reg. at 57953-57956.] EPA's proposal would strengthen closure regulations for LQGs accumulating hazardous waste in containers in central accumulation areas that plan to stop hazardous waste accumulation in those containers. LQGs in this circumstance would be required to meet the same type of closure regulations that apply for tanks, drip pads, and containment buildings, including in those situations where a generator is not able to demonstrate that its contaminated soils can be practicably removed or decontaminated. TDEC is generally supportive of this requirement. (0116)

Additionally, the proposal would require closure as a landfill in instances in which LQGs accumulating in containers where clean closure is not achieved. As proposed, LQGs would be required to notify EPA or the state no later than 30 days prior to closing an accumulation area and within 90 days after closure of unit or facility. TDEC is supportive of this proposed change, but also recommends that EPA consider inclusion of the proposed closure requirements for all generator classifications, not just LQGs. If similar problems exist with either a CESQG or SQG container storage area, then a similar requirement would be considered applicable based on consideration of the potential effect on human health and the environment. TDEC also recommends that EPA's final rule clarify that closure procedures are applicable to container accumulation areas, not individual containers, e.g. drums. (0116)
Response: With respect to EPA considering the inclusion of closure requirements for all generator classifications, not just LQGs, we are not prepared at this time to expand closure requirements to those generator categories. However, situations may exist where a generator fluctuated between VSQG and LQG, or SQG and LQG numerous times over the life of the facility. In such situations, EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements. 
Comment: CIANJ does not agree with applying closure standards to containers such as roll-offs and vacuum boxes used to accumulate hazardous waste during site remediation activities. These units differ significantly from tanks, drip pads and containment buildings as they are portable temporary storage units and will permanently leave a facility prior to the completion of the remediation. Sometimes these units are temporarily staged outside of a Corrective Action Management Unit (CAMU) or Area of Concern (AOC) while awaiting transport and the way the generator closure requirements are currently written, these staging areas could be subject to closure requirements simply because a truck was parked overnight in a parking lot.

CIANJ requests that the rule be clarified to state that closure requirements do not apply to satellite accumulation areas or remediation projects where roll offs or other temporary storage containers are used to accumulate remediation wastes. (0120)
Response: Closure requirements will not apply to wastes accumulated in satellite accumulation areas or situations where either a VSQG or SQG has an episodic event resulting in a generator generating 1,000 kilograms or more in a calendar month that chooses to take advantage of the episodic generation provisions in this rule. For example, a VSQG or SQG with a remediation project may be able to take advantage of the episodic generation provisions in this rule.
Comment: Existing RCRA regulations do not include stringent closure requirements for generators that cease handling hazardous waste in accumulation units. One exception is the closure performance standards for CAAs operated by LQGs.

EPA is proposing to impose substantial new requirements for LQGs that close CAAs. Specifically, the LQG would have to notify EPA at least thirty days prior to a planned closure. Second, if the CAA was used for container storage, the closure requirements would be akin to those applicable to tanks, drip pads, and containment buildings, i.e., the LQG would have to remove all wastes and residues, decontaminate or properly remove or dispose of all contaminated equipment, structures and soils. If the CAA cannot be cleaned to these standards, it would have to be closed and managed as a landfill (including post-closure management and financial assurance). Lastly, the LQG would have to notify EPA within ninety days of the closure and report whether the unit was clean-closed or closed as a landfill.

The agency is requesting further comment on whether LQGs should be required to certify that a CAA was closed in accordance with the above. EPA also requests comment on whether SQGs should be required to notify EPA after closing a CAA. It is unclear from the NPRM whether EPA also intends the proposals to apply to SAAs.

IME supports most of the proposed closure requirements. Proper management during the life of the CAA should ensure that no extensive cleanup measures will be required at closure. IME does not believe, however, that a post-closure notification is necessary. EPA would have notice that closure is planned and can follow-up if the agency feels it is necessary. (0126)
Response: We thank you for your support. As for the comment that post-closure notification is not necessary, we disagree. We believe it is necessary because both EPA and the states need to know, or have the ability to verify, that the facility clean closed effectively and have included this requirement in the final rule. In addition, we note that closure requirements will not apply to hazardous wastes accumulated in SAAs.
Comment: However, EPA does not limit the reporting to units justified by the damage cases cited; rather, EPA proposes to extend the notification requirements to hazardous waste tanks, drip pads, and containment buildings as well. In the case of hazardous waste tanks, existing regulations require secondary containment and reporting of environmental releases from tank systems of quantities greater than 1 pound. This allows a problem with an environmental release to be addressed immediately and not allowed to wait until closure. This is the appropriate way to address releases from 90 day areas rather than waiting until closure. As such, current regulations regarding hazardous waste tank systems already address the concerns expressed in the preamble and should not be subject to the notification requirements.

The preamble clearly appears to be referring to drum or other small container storage. 
However, EPA is overlooking other container storage for which justification is also not provided. Many facilities load hazardous waste from tanks or process units directly into tank trucks using loading/unloading facilities designed and used for products and raw materials and secondarily for waste. These facilities by necessity are built on concrete or other non-earthen surfaces and include secondary containment and/or drainage to collection facilities or directly to onsite waste water treatment facilities. 

Trailer loading stations may occasionally be used as a 90 day accumulation area with some frequency (every 60 days for example), but wastes are not stored on the pad for over a couple of days as the facilities are used for multiple purposes. In addition, temporary 90 day accumulation areas are sometimes established at such locations and then closed. For example, a large industrial complex may have a scheduled shut down for maintenance and set a roll-off or tank truck on a trailer pad for a couple of weeks to receive tank clean-out or solids removal. The concrete trailer pad with containment and drainage to NPDES permitted wastewater treatment facilities is used for a couple of weeks as a temporary unit. Personnel are RCRA trained, a unit contingency plan is established and inspections are conducted during this period of time. The shutdown is complete and the trailer pad is put back into service for raw material or product loading and unloading for which the unit was designed. This is a routine practice in many manufacturing facilities. Or, a facility can have a loss of power or other condition that results in the generation of hazardous waste in excess of what established areas can manage. A new unit for small containers may be established, used for a short period of time and returned to design use after the event. In such cases, a 30 day notification prior to closure is not possible. Such units do not represent the potential for environmental harm as documented in the preamble. It would be of no value to make a 30 day notification of closure on a unit that has never been opened and will only be used for a period of time less than 90 days. 

To address the issues presented in the preamble and to not simply use the improperly managed small container cases to substantially extend the reach of the current regulations without justification, Eastman proposes that 90 day units that have secondary containment or 90 day container areas (this includes not only drums, but tank trucks, roll-offs, etc.), that have secondary containment or are located on surfaces such as asphalt/concrete that drain to wastewater treatment systems or that manage only solids with no free liquids should be excluded from all reporting requirements. For example, the objectives of the notification requirements for closure could be satisfied with the following requirement at 262.17(a)(8)(i):

"Notification. (A) Notify EPA no later than 30 days prior to closing the site or closing a unit that accumulates hazardous waste at that site for units located on the ground or in an area (concrete or asphalt) that drains to the ground. For temporary units in operation less than 30 days, the notification shall be made 5 days prior to closure." 

(B) For units identified in 262.12(a)(8)(i)(A), notify EPA . . . .

Eastman is also confused by EPA's statement at 80 FR 57955 which states that "Form 8700-12 would be used for the final notification." This form does not include a listing of each and every 90 day area at a facility. To modify that form to include specific 90 day areas and the wastes each area contains is NOT the function of the form and would create unnecessary burden. EPA should simply require a letter describing the closure and its compliance with the performance standards. In no case should the post closure notification require a certification as there can be many interpretations of the listed performance standards. 

Finally, these notification requirements should never apply to satellite accumulation areas without some evidence that they pose a risk. In fact, most satellite units are located inside buildings such as laboratories or in maintenance shops and do not include free liquids such as empty aerosol cans or wipes. Without question, closure notification requirements applicable to satellite accumulation areas would be an overreach. (0128)
Response:  We respond to the comments of this commenter as follows. 
 SAAs are not affected by these provisions.
 Regarding, temporary 90 day accumulation areas that are sometimes established at locations and then closed, the Agency has modified the rule to account for such situations. In such cases, the generator can place a note in their operating record stating they have opened a closed a temporary 90 day waste accumulation area and address and closure requirements when the facility closes.
 The commenter suggested that 90 day units that have secondary containment or 90 day container areas (this includes not only drums, but tank trucks, roll-offs, etc.), that have secondary containment or are located on surfaces such as asphalt/concrete that drain to wastewater treatment systems or that manage only solids with no free liquids be excluded from all reporting requirements. The Agency disagrees with the suggestion because while such practices will help prevent releases, there is still no guarantee they cannot occur. Hence the need for verification on the part of the generator. 
 Regarding notification using Form 8700-12, the commenter offers a good suggestion, but upon analysis, we cannot totally agree. As the commenter states, this form does not include a listing of each and every 90 day area at a facility. To modify that form to include specific 90 day areas and the wastes each area contains is NOT the function of the form and would create unnecessary burden. In lieu of this, EPA should simply require a letter describing the closure and its compliance with the performance standards. In no case should the post closure notification require a certification as there can be many interpretations of the listed performance standards.

In such situations, the Agency suggests that the LQG simply mention on Form 8700-12 that a letter is attached identifying the location of their waste accumulation areas and that they have either successfully or unsuccessfully closed each unit. Without knowing where the waste accumulation areas have been, how can a state or EPA ever verify the generator's letter?

Similarly, certification is not required in the closure regulations as much as an acknowledgement that the LQG has met the applicable closure requirements. 

Comment: Eastman is concerned about the requirement to notify before and after closure of 90 day accumulation areas. At large facilities, there are many such 90-day areas. In most cases, these areas include tanks with mandatory secondary containment and large container areas such as concrete trailer loading and unloading areas. Although poorly managed containers stored on the ground may be an issue at some sites, the inclusion of ALL 90 day areas at every site across the country in these expanded notification requirements is unjustified and not required for the protection of human health and the environment. Eastman particularly objects to any requirement to "certify" closure without reasonable, definable objectives. (0128)

Response: In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.  

Comment: 6. Closure Notifications and Standards §262.17(a)(8)

Agency records might also be improved by using Form 8700-12 for re-notification when an entire generator ID site will no longer be used for waste generation. This would be far preferable to the proposed notifications at §262.17(a)(8)(i). This proposal would require 30 day advance closure notification for individual hazardous waste accumulation areas within a still-active generator ID site. Comments submitted by the Regulatory Environmental Group for Missouri (REGFORM) describe in detail the potential to generate large numbers of such notifications, due to short-term <90 day storage areas being established for temporary construction or process modification work within an established generator ID site. Likewise, because of the gallon limits on satellite accumulation, certain large portable solids containers and liquid totes are managed as <90 day storage. These large portable containers are relocated as needed, either temporarily to transfer waste to a larger container/transporter, or for a longer time, to service waste generation that is moving to a new area. This routine movement of <90 day storage units within generator ID sites makes the proposed 30 day advance and 90 day post-closure notices an unworkable additional requirement that will impose a new workload on generators and authorized states or EPA.

The proposed closure standards at §262.17(a)(8)(ii) are less objectionable than the notifications, because they reflect what LQG generators already do, to avoid leaving areas of their plant unusable for production due to potential for employee exposure.

Proposed Change:

Omit that the entire proposed §262.17(a)(8) from the final rule, as imposing unnecessary paperwork on generators and agencies alike. (0133)

Response: In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.  

Comment: NDEQ generally supports the proposal to update the closure conditions for the LQG permitting exemption in §262.34(a)(1)(iv)(B).

NDEQ supports the second closure proposal which would require that hazardous wastes accumulated in containers meet the same type of closure regulations as those applicable for tanks, drip pads, and containment buildings. As a large percentage of hazardous waste is accumulated in containers, NDEQ agrees with EPA that equivalent regulatory treatment is needed for containers in order to prevent adverse impacts to human health and the environment. (0145)

Response: The Agency appreciates the above comments.

Comment: EPA's proposed notification requirement whenever a LQG closes a "unit accumulating hazardous waste" is unduly burdensome and unneccessary, especially if the facility has not closed entirely. Would EPA require a facility to submit closure notification for a tank accumulating a waste that is no longer classified as a hazardous waste? For what size/type "containers and container units" would EPA require closure notification? Requiring a LQG (or possibly a SQG) that ceases all operations to submit a post-closure notification is reasonable. However, an additional pre-closure notification appears redundant. (0152)

Response: In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.  

Comment: If EPA desires post-closure notification, TWC suggests that EPA revise the proposed provision to state the following:

"(B) Notify EPA within 90 days of completion of closure activities of a unit that accumulates hazardous waste at the site or of the site that it has either clean closed (e.g., complied with the applicable closure performance standards of § 262.17(a)(8)(ii)) or, if it cannot clean close, notify as a landfill under § 265.310 of this chapter."

Revising the notification provisions in the manner provided above will clarify precisely when generators should provide notification to EPA.

In sum, TWC believes that EPA should not include pre-closure notification in the final rule, and that if the final rule contains any closure notification provisions, it should only be the revised post-closure provision above (0164).

Response: The Agency has addressed this comment as follows. In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.  

Comment: Comment E discusses concerns with proposed closure provisions and suggests revisions to these provisions.
      E. Generator Closure Regulations

TWC seeks clarification from EPA on statements in the preamble regarding closure regulations applying to SQGs. TWC also has concerns regarding the consolidation of LQG closure provisions and the proposed addition of closure notification obligations for LQGs.

In the preamble, EPA broadly states that SQGs are not subject to federal closure regulations. The preamble asserts, "[T]here are no federal regulations for closure of a waste accumulation unit or site closure by SQGs . . . ." See 80 Fed. Reg. 57,955, col. 3. However, SQGs accumulating hazardous waste on drip pads currently comply with the drip pad specific closure provision in part 265 subpart W (§ 265.445). See Wood Preserving Guide, supra, at section 3-25. TWC believes that SQGs accumulating hazardous waste on drip pads should be required to adhere to the § 265.445 closure provision because it ensures good stewardship practices by drip pad operators. TWC therefore requests clarification on the preamble statement and the applicability of § 265.445 closure requirements to SQGs accumulating hazardous waste on drip pads. (0164)
Response: Under the final rule, SQGs accumulating hazardous wastes on drip pads will not be subject to closure requirements. However, TWC members that are SQGs accumulating hazardous waste on drip pads may wish to continue to adhere to the § 265.445 closure provision because it ensures good stewardship practices by drip pad operators. 

Comment:  o Closure of Accumulation Areas (Section 5.10.3 below). EPA's proposed rules for closure of generator accumulation areas should not apply to areas holding small quantities of hazardous wastes, such as those in the retail sector. EPA itself has acknowledged that these closure requirements are unwarranted for small areas, and has long exempted SQG accumulation areas storing less than 6000 kg. The Agency should issue a similar exemption for retailers and/or LQG facilities storing less than 6000 kg. (0168)

Response: Closure requirements apply only to LQGs. Facilities generating less than 1,000 kilograms in a calendar month or less than 1 kilogram of acute hazardous waste are not subject to closure requirements.  

Comment: 5.10.3 EPA's Proposed Rules for Closure of Generator Accumulation Areas Should Not Apply to Areas Holding Small Quantities of Hazardous Wastes, Especially in the Retail Sector

EPA has proposed a number of new requirements for closure of accumulation units at LQG sites. See generally, 80 Fed . Reg. at 57,953-56. For example, the proposal would require LQGs to clean close their container storage areas or close as a landfill if clean closure cannot be achieved. Id. at 58,000-01 (proposed to be codified at 40 C.F.R. § 262.17(a)(8)). It would also require LQGs to notify EPA at least 30 days prior to closure, and no later than 90 days after closure of all container or other storage areas. Id. EPA also requests comment on whether LQGs should be required to certify clean closure (or failure to clean close), and whether SQGs should be required to notify EPA within 60 days after closure.

The Retail Associations have several concerns with EPA's proposal regarding closure, as discussed below:

o The requirements for clean closure or closure as a landfill should not apply to areas handling only small quantities of hazardous waste. EPA, in fact, seems to recognize this fact in the proposal. For example, the Agency justifies the new requirement by focusing on the risks posed by improper closure at facilities that "generate a sufficient quantity of hazardous waste to require the use of a large number of containers each day." See 80 Fed. Reg. at 57,955 (also contrasting this situation with "LQGs [that] generate relatively small quantities of hazardous waste and therefore may not need many containers to accumulate their hazardous wastes"). Moreover, EPA states that there is no need for a comparable requirement for SQGs, since "SQGs ... have a waste accumulation quantity limitation of 6,000 kilograms." Id. If the proposed requirement to clean close or close as a landfill is not necessary for SQGs storing less than 6,000 kg of hazardous waste, it should also not be necessary for LQGs storing such quantities. In the retail sector, it is difficult to imagine any scenario where such large quantities would be stored (corresponding approximately to 30 barrels). EPA should therefore establish an exemption from this requirement for retail facilities and/or facilities storing only small quantities of hazardous wastes (e.g., less than 6000 kg). (0168)

Response: Closure requirements apply only to LQGs. Facilities generating less than 1,000 kilograms in a calendar month or less than 1 kilogram of acute hazardous waste are not subject to closure requirements.  
Comment: o To the extent that closure of small container accumulation units does not warrant detailed closure standards, as discussed above, such units also should not be subject to any closure notification requirements that may be established. EPA claims that there may be some "potential benefit" to notification in such circumstances, but any such benefit is outweighed by the burden on the generator community and on the federal or state officials who might be inundated with notifications for small accumulation areas that they may not have known or cared about anyway and that likely posed little risk.

o EPA's proposal to require notification before and/or after closure of an accumulation unit (as opposed to an entire site) raises complex questions about what would constitute such closure. For example, if a generator sent all the wastes in its accumulation area offsite and did not generate any more hazardous wastes for several months, would that constitute closure requiring notification (and, if so, when)? If a generator were to move its accumulation area from one side of a room to the other, would that constitute closure of one area and opening up of a new area? The Agency has not addressed these issues, making it hard now to comment in a meaningful way, and even harder to comply if the proposal is finalized as is.

o EPA's proposal to require advance notification of closure is problematic in several respects. As noted above, it may not always be clear what constitutes closure or when it occurs. Even when closure is obviously taking place (e.g., when an entire site is closed), generators may not always know 30 days in advance that closure will happen. Particularly in the retail sector, advance notification may also create problems from the perspective of employee and community relations.

o The proposed requirements to notify before and/or after closure of accumulation areas would pose a substantial logistical challenge to companies with hundreds or even thousands of facilities, as is the case for many large retail chains. (0168)
Response: The Agency has addressed this comment as follows. In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area
Comment: Preamble Section VIII.G. CT DEEP supports EPA's proposed improvements to the hazardous waste closure requirements for LQGs that cease using one or more hazardous waste storage areas, or that close their entire facility down. In particular, CT DEEP supports EPA's proposal to consolidate the existing closure requirements into a separate section within the generator regulations, and the proposed provision that would require a generator that closes a container storage area and that cannot completely remove all contaminated soil and/or groundwater to close the container storage area in accordance with the requirements for a hazardous waste landfill. With respect to the latter of these two changes, CT DEEP agrees with EPA that the existing regulations already require closure as a landfill for tanks for which all contaminated soil or groundwater cannot be removed, and that extending this requirement to container storage areas has been a long-standing oversight on the part of EPA.

However, CT DEEP requests clarification from EPA regarding exactly what is meant by the requirement that generators who cannot practicably remove all contaminated soils and wastes must "close the accumulation unit and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills...". In particular, must such a generator submit a Part A permit application? Should EPA or an authorized state enter such a generator into the closure and/or post-closure universe in RCRAInfo? Would such a generator become subject to site-wide corrective action? (0178)
Response: Whether a generator would actually have to meet all the requirements of closing as a landfill would be a site-specific decision, made in conjunction with EPA or the authorized state.
Comment: In addition, CT DEEP suggests that EPA consider adding a timeframe within which closure must be completed. The current closure requirements include no such timeframe, and although the notification requirements discussed above will serve to alert CT DEEP to the beginning and end of closure activities, there is nothing in the amendments that EPA is proposing that would prevent a generator from dragging closure activities out indefinitely (e.g., to avoid the expense entailed in such closure). CT DEEP notes that Connecticut's hazardous waste regulations currently require closure to be completed within 180 days of the final receipt of hazardous waste in a storage area.

CT DEEP also suggests that EPA consider some sort of closure requirements for SQGs. Connecticut's hazardous waste regulations currently require the SQGs comply with the closure requirements of 40 CFR 265.111, 265.113(a)-(c), and 265.114. These requirements were added to Connecticut's hazardous waste regulations more than ten years ago because CT DEEP had identified several instances in which SQGs had vacated a site leaving waste behind or without having properly cleaned and decontaminating their hazardous waste storage areas. (0178)
Response: As finalized, LQGs will have to notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). Similarly, if an LQG cannot meet the closure performance standards, the generator may request additional time to clean close, but it must notify EPA using form 8700-12 within 75 days after closing to request an extension and provide an explanation as to why the additional time is required.  These two sections respond to CT DEEP's comments and concerns.

Comment: 26. Page 57953, Section VIII.G.: Utah agrees with all proposed closure changes as a means to strengthen the closure regulations. (0185)

Response: The Agency appreciates the commenter's support.

Comment: IME supports most of the proposed closure requirements. Proper management during the life of the CAA should ensure that no extensive cleanup measures will be required at closure. (0188)

Response: The Agency appreciates the commenter's support.

Comment: IME does not believe, however, that a post-closure notification is necessary. EPA would have notice that closure is planned and can follow-up if the agency feels it is necessary. (0188)

Response: The Agency disagrees with the above comment. The generator has a responsibility to clean close and notify EPA or an authorized state that they have succeeded or failed in complying with the closure performance standards. Without the second notification, what assumption is the Agency to make? The second notification address that unknown. 

Comment: SOCMA thinks this proposal is overkill in multiple respects. Principally, it may not be feasible, at an operating facility, to completely remove all contaminated structures or to eliminate all traces of hazardous waste. So long as the areas are not presenting risks to employees, and are not releasing contamination to the environment, SOCMA does not see the need for a higher standard of cleanup. Compliance with landfill requirements  -  particularly leak detection and groundwater monitoring systems  -  at an operating facility would be highly disruptive, to say the least. Similarly, a requirement to show financial responsibility for post-closure care for such minor levels of contamination at an operating facility would be a substantial cost and distraction. EPA should focus only situations where remaining contamination poses some realistic harm.  (0192)

Response: The Agency disagrees with the above comments. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. Otherwise, the performance standards have not changed, nor requirements for LQGs that cannot clean close and must close as a landfill. Similarly, the Agency has simplified notification and recordkeeping requirements per stakeholder comments.   

Comment:  First, imposing a "clean close" requirement on all central accumulation areas is impractical and not grounded in real world closure scenarios. The storage of hazardous waste in containers does not present the same risk to human health and the environment as the storage of waste in other types of units. Waste stored in containers is generally removed from the central accumulation areas in the containers it has been stored in within the allowed accumulation time. Waste in containment buildings, drip pads and tanks are emptied from the structure or vessel providing the containment. Thus, containers used for storage are regularly rotated and replaced, making it easier to ensure the integrity of the containers. Thus, the closure and post-closure issues associated with container storage areas are substantially different from the closure and post-closure issues associated with accumulation areas with drip pads, tank systems or containment buildings.

The "clean close" standard simply should not apply to all central accumulation areas, and the inflexible closure and post-closure standards designed for landfills have little to no application to the safe closure of central accumulation areas where hazardous waste is stored in containers. EPA's proposal is an overreaction to the discreet Superfund damage cases cited. This anecdotal information does not adequately support EPA's expansive and burdensome revisions. NMA strongly encourages EPA to reconsider its approach to the issues it has identified in the Superfund program and find a more practical and reasonable regulatory solution. (0200)
Response: The Agency disagrees with the above comments. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup. 

Comment:  Second, NMA opposes EPA finalizing a 90-day notification requirement that the central accumulation area is clean-closed or closed as a landfill (with certification). Ninety days is simply not sufficient time to properly achieve clean closure of many hazardous waste units. This timeframe will force units that could achieve a "clean close" to be closed as landfills. Alternatively, if EPA were to finalize this requirement, the agency should give generators at least a year to determine the extent of contamination and potential remedial action. (0200)

Response: As finalized, LQGs will have to notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). Similarly, if an LQG cannot meet the closure performance standards, the generator may request additional time to clean close, but it must notify EPA using form 8700-12 within 75 days after closing to request an extension and provide an explanation as to why the additional time is required.  These two sections address the commenter's concerns.

Comment: EPA is proposing to enhance the closure notification requirements for the hazardous waste accumulation units at LQGs  -  EPA wants to require LQG to notify prior to and/or after closing a hazardous waste accumulation location or closure of the site altogether. Currently, this type of notification is not required and regulatory authorities do not know whether generators have abandoned the site, leaving behind hazardous waste that could subsequently result in a release to the environment and adverse impacts to human health and the environment. Thus, these closure notifications are important to ensure that LQGs close their hazardous waste accumulation location in compliance with the applicable closure regulations. Failure to properly close would be a violation of the hazardous waste accumulation exemption. EPA is also seeking comments if the closure requirements should apply to SQGs.

Requiring SQGs and/or LQGs to notify that a hazardous accumulation location is being closed will impose a slight additional impact on the facility due to the notification requirements. Existing regulations require SQGs and LQGs to remove hazardous waste within a specified time. (0206)

Response: The Agency appreciates the support of this commenter but points out that closure requirements are only applicable to LQGs. 

Comment: 57953 - Generator closure
:: Apply to container storage areas - good, but what about generators that are subject to a state cleanup order for pre-RCRA releases, or releases from product tanks - TSDFs are subject to HSWA for these releases, but will generators also become subject to HSWA liability? What about situations where contamination cannot be attributed to a specific release, for example at dry cleaner sites that have been in operation since before RCRA?

Response: This comment is beyond the scope of this rulemaking.

Comment: 57955 - Central accumulation area closure 
:: Can be multiple areas, often no record of where they are at a facility - contingency plan should cover, but often find situations where generators have exceeded the 3-day limit for satellite areas accumulating excess waste. What kind of notification and recordkeeping will be required on these?

Response: When closing the CAA, LQGs will have to update their contingency plan and have the option of either compiling with the applicable closure performance standards, or waiting to clean close until the facility closes. If they choose to wait to meet the applicable closure performance standards, the LQG will need to place a notice in their operating record as to the CAAs location, or alternatively, notify their authorized state or EPA region that they have met the applicable closure performance standards, or they must close as a landfill, or in the case of drip pads, comply with 40 CFR 265.445 (b).  
Comment: :: Final closure - what documentation will the facility have regarding the locations of their 90 or 180 day units, when they become subject to closure? (0214)

Response: LQGs will have to notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). Similarly, if an LQG cannot meet the closure performance standards, the generator may request additional time to clean close, but it must notify EPA using form 8700-12 within 75 days after closing to request an extension and provide an explanation as to why the additional time is required.  We believe these two sections address the commenter's concerns.

Comment: Section VIII.G.1 (Page 57953): The States support the addition of closure notification requirements for LQGs. Some States would like to see a closure notification requirement for SQGs. One State believes the applicability needs some further clarification. For example, a few questions that come to mind include, are these requirements applicable only if the facility is a LQG at the time the 90-day accumulation area will no longer be utilized? What if the facility goes from LQG to SQG and the 90-day accumulation area becomes a 180-day accumulation area, are the closure requirements still applicable? If so, when the facility will no longer utilize the accumulation area or when they covert from LQG to SQG or CESQG? (0217)

Response: EPA and the states will make a case-by-case determination as to whether closure applies to SQGs that were previously LQGs based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements. 
Comment: Section VIII.G.2 (Page 57954): The proposed rule includes requirements for LQGs to comply with closure standards similar to TSDFs. In particular, the proposed rule states, "Therefore, as with LQGs that accumulate hazardous waste in tanks, drip pads, and containment buildings, should a generator decide to close a container or stop accumulating hazardous waste in containers at the site altogether, it would be responsible for complying with the proposed regulations and removing all relevant hazardous wastes accumulated within 90 days of generating it and any hazardous wastes that also may have been accumulated in SAAs." Otherwise the LQG would be subject to all permitting requirements. How does a generator "close a container?" Containers are a one-time use unit and when full are shipped off-site to a TSDF. It is unreasonable to expect a LQG to perform closure activities in this situation. Most States agree with the proposed requirement for LQGs to comply with closure for particular units, but disagree with this proposal as it is written. The type of accumulation unit or site should be taken into account regarding certification of closure and closure requirements. Closure of a pallet with secondary containment is quite different than the closure of a room with secondary containment or a drip pad. EPA should clarify when the closure requirements apply (e.g., some LQGs will place pallets with secondary containment in an area of their facility where they have some room. When they move these pallets to another area of the facility, would they have to certify closure of the old area?). (0217)
Response: We agree with the commenter and have modified the regulations to account for situations where a container CAA is closed and re-opened. Also, SAAs will not be subject to closure requirements. 

Comment: One State believes EPA's proposal would strengthen closure regulations for LQGs accumulating hazardous waste in containers in central accumulation areas that plan to stop hazardous waste accumulation in those containers. LQGs in this circumstance would be required to meet the same type of closure regulations that apply for tanks, drip pads, and containment buildings, including in those situations where a generator is not able to demonstrate that its contaminated soils can be practicably removed or decontaminated. This State is generally supportive of this requirement. Additionally, the proposal would require closure as a landfill in instances in which LQGs accumulating hazardous waste in containers where clean closure is not achieved. As proposed, LQGs would be required to notify EPA or the State no later than 30 days prior to closing an accumulation area and within 90 days after closure of unit or facility. This State is supportive of this proposed change, but also recommends that EPA consider inclusion of the proposed closure requirements for all generator classifications, not just LQGs. If similar problems exist with either a CESQG or SQG container storage area, then a similar requirement would be considered applicable based on consideration of the potential effect on human health and the environment.

It is also recommended that EPA's final rule clarify that closure procedures are applicable to container accumulation areas, not individual containers, e.g., drums. (0217)
Response: At this time, closure requirements are only applicable to LQGs, and not CESQGs/VSQGs and SQGs.  However, situations will most likely exist where an LQG moved to a lower generator category over the life of the facility prior to closure.  In such situations, EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements. Also, SAAs will not be subject to closure requirements for their SAAs.

Comment: Section VIII.G.3 (Page 57955): Most States support the requirement for a generator to notify when the facility closes (emphasis added). However, the States do not support the proposal to require generators to notify the implementing agency when closing containers. Closing containers as described in the proposed rule is unrealistic from a practical point of view. If notification of closure is required for LQGs, it should only occur after closure of the hazardous waste accumulation unit or site. (0217)

Response: In response to comments, the Agency has modified the rule to account for such situations whereby a generator can place a note in their operating record stating they have opened a closed a temporary 90 day central accumulation area and address closure requirements when the facility closes.
Comment: One State notes, compliance with the proposed language at §262.17(a)(8)(i) for notifying EPA no later than 30 days prior to closing a central accumulation unit is impractical for many of its federal facilities, as well as large campus-style private facilities. Often temporary central accumulation areas are established for short-term maintenance projects, such as firing range cleaning, lead-abatement projects, and construction projects. These temporary units may exist for fewer than 30 days. Since compliance with closure of a central accumulation area is self-implementing and not subject to closure plan development or approval by the regulatory agency, a notice to EPA immediately prior to or at time of closure would be sufficient versus 30 days prior. This State would prefer to see a requirement for notification of the establishment of new central accumulation areas prior to use.

Response: In response to comments, the Agency has modified the rule to account for such situations whereby a generator can place a note in their operating record stating they have opened a closed a temporary 90 day central accumulation area and address closure requirements when the facility closes.
Comment: 13. Closure Regulations for LQGs Accumulating Waste in Containers  -  p. 57953
The proposed requirements for closure of areas where waste is being accumulated are needed to ensure contamination is properly identified and cleaned up. (0223)
Response: The Agency agrees with the above comment.
Comment: The FRRC has concerns about how this would apply to a temporary central accumulation area that gets established during a special project, such as part of a building renovation or building demolition. Such an area may only be active for a couple of weeks or a couple of months. The regulations are drafted such that there is no distinction between this situation and those areas that are used much longer periods of time. See proposed 40 CFR § 262.17(a)(8). If that is the intent, it is very extreme to apply full closure requirements to such areas and to potentially subject such sites to full landfill closure requirements. Moreover, the regulations are not clear in terms of how such an area would be considered active or inactive and how generators would make that determination. The FRRC strongly encourages EPA to evaluate the closure requirements as they apply to areas that only are used for accumulation for short durations. (0224)

Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

Comment: The proposed closure pre-notification is problematic in the situation noted above, but is also a concern in general. See 80 Fed. Reg. 57955. First, it is not always a clear date when "closure" begins or when "closure" is complete. Therefore, how would generators and EPA determine whether the time-limits for notification have been met? Moreover, it is unclear what environmental benefits would result from such notification. Generators have incentive to complete full closures accurately and property conditions are regularly assessed during transactions under CERCLA's All Appropriate Inquiry standard, which would include looking at whether there is or have been conditions at the property where it likely or potential release of hazardous substances into the environment. See 40 CFR § 312.20. (0224)

Response: The Agency has addressed the concerns of this commenter and others in the final rule.  In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

Comment: 7. The US EPA requests comments on its proposal to strengthen closure requirements for LQGs that accumulate containers and requiring LQGs to notify at closure. Hennepin County supports these proposals as we have encountered incomplete cleanup of sites that have closed and timely notification would provide regulators with the option to inspect sites prior to closure, allowing them to intervene sooner in cases where the generator is showing signs of not fulfilling its obligation to clean up the site. With that said, we suspect that the notification requirement will be widely ignored especially by SQGs mostly out of ignorance. (0229)

Response: The Agency appreciates the support of Hennepin County. Regarding its last sentence, SQGs will not be subject to closure requirements unless the state has more stringent requirements, or EPA and the states run across situations where a facility was an LQG for a long period of time, dropped down to an SQG status for a few months and then closed. In such situations, whether the facility is subject to closure requirements will be on a case-by-case basis. 

Comment: The proposed rule requiring 30 day advance notification to EPA of the closure of accumulation storage areas presents a significant challenge to the college and university sector. This change, combined with proposed requirements to document the closure status of accumulation areas and update contingency plans with local emergency planning committees represents a significant new reporting requirement. The value of this information is recognized but the methodology for reporting is not clear.

A systematic approach to summarizing relevant information for regulators, emergency responders and site owners is needed. The college and university sector is likely to have more frequent movement of central drum storage areas and may require temporary central accumulation units for project work. The regulations should recognize and allow the use of portable spill containment pallets to create central accumulation units on an ad hoc basis.

Contingency plans could become a central repository for essential information on central accumulation areas but the proliferation of disparate notification and reporting requirements may be inefficient and of limited utility. (0244)

Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

With respect to modifying their contingency plan, the Agency believes it is important for a LQG to modify its contingency plan when it closes a CAA because emergency responders will need to know what areas they have to be concerned about if the need arises when they have to respond to an emergency. A modification to the contingency plan also would be required if  the LQG reopens the CAA since hazardous wastes will be accumulating in a 90-day area where emergency responders may have to address in case of a fire or other type emergency. 
Comment: Proposed Change: Strengthens closure requirements for LQGs Section VIII.G.1-4 pages 57953-57956
EMD Position: Support
Comment/Notes: Support strengthening closure requirements for LQGs as we come across businesses that abandon hazardous waste containers upon closure or going out of business. (0250)
Response: The Agency appreciates the support of this commenter. 
Comment: ACA believes that applying the same closure requirements to containers as is already required for tanks, drip pads and containment buildings will be burdensome for generators and confusing. It is excessive to manage areas which do not achieve clean closure as landfills and other post closure regulations that are geared towards TSDFs. The proposed requirement would remove flexibility for facilities as they would be less likely to designate a new or temporary hazardous waste accumulation area. Under the current regulations, a LQG that wishes to closure a hazardous waste drum accumulation area only is required to comply with 265.111 (a), 265.111(b), and 265.114.

ACA believes that the differentiation in the current closure requirements between these storage areas and hazardous waste accumulation tanks, drip pads, and containment builds are sufficient enough for the lower risk associated with its closure. When EPA adopted its initial regulations, it properly distinguished between generators that store small quantities of hazardous waste in containers and generators that store or treat hazardous waste in much larger quantities in tanks, landfills, surface impoundments, incinerators, etc. LQGs that store hazardous waste in containers should not be subjected to onerous aspects of RCRA, especially since EPA's goal in this proposed rule is to simply consolidate and "clarify" existing regulations. This proposal would be a major departure from existing regulations. (0262)
Response: The Agency disagrees with the commenter. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup. 

Similarly, in response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

Comment: 262.17(a)(8)(ii)(2) adds significant closure requirements across all types of units for decontamination of accumulation areas including containment, soil, subsoil, structures, and equipment beyond that in existing regulation 265.114. Accumulation areas are generally not much different from associated manufacturing areas in terms of the types and volumes of hazardous materials that then become waste that are used in each. Thus, there should be no further closure requirements required for such areas. If significant environmental releases to the environment had occurred, those would have already been addressed via other regulatory requirements for reporting (e.g. 40 CFR 302); (0263)

Response:  The Agency disagrees with the commenter. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.

Regarding the comment about significant environmental releases to the environment having occurred, we also would expect those releases to have already been addressed via other regulatory requirements for reporting. However, this requirement is independent of spills and releases occurring during the life of the facility where a cleanup was required. This requirement is to assure the public that the generator has been a good steward of the property and when they close their facility, they will ensure the public that releases, spills, etc. have not been left unaddressed. 
Comment: :: 40 CFR 262.17 (i) requires that EPA be notified 30 days prior to and 90 days after closure of a unit that accumulates hazardous waste. This would add an administrative burden to generators with very little benefit since the location of active 90 day areas are already included with the hazardous waste contingency plan that is submitted to regulators and emergency responders.(0280) 
Response: The Agency has modified the closure regulations to provide flexibility in how an LQG may address the closing of a CAA while the facility is still in operation. But the Agency notes that the contingency plan does not address the closure of the facility and ensuring releases to the environment have not occurred, or will not occur.
Section 4.6.1 - Consolidation of closure requirements in 262

The Agency is consolidating the comments of Commenters 0085, 0108, 0134, 0145, 0182, 0232 into one response below. 

Comment:29. Regarding generator closure regulations  -  Section VIII.G.1-4., pages 57953-57956: Colorado agrees with the proposal to consolidate the closure regulations for LQGs into the new section 262.17(a)(8). (0085)
Comment: 7. Section VIII. Proposed Revisions to 40 CFR Part 262 -- Standards Applicable to Generators of Hazardous Waste - Generator Closure Regulations
NJDEP supports consolidating and integrating all relevant closure provisions for LQGs at § 262.17(a)(8). (0108)
Comment: J. Closure Regulations for Generators

ETC supports EPA's proposal to consolidate the closure regulations for generators and require closure of central accumulation areas. 80 FR 57953-56. (0134)
*Comment: Within the larger proposal, NDEQ is neutral on the first change to consolidate the closure regulations for LQGs accumulating hazardous waste at §262.17(a)(8). Nebraska incorporates-by-reference both the general performance requirements found at §§265.111 and 265.114 for containers, tanks, drip pads, and containment buildings, and the unit specific requirements found at §265.197 for tanks, §265.445 for drip pads, and §265.1102 for containment buildings. Nebraska has not heard from stakeholders or staff that these regulations can be confusing and difficult to follow, but appreciates EPA's effort to pursue continuous improvement in clarity and readability.(0145)
Comment: VIII.G.4. Request for Comment
DEQ is of the opinion that EPA's proposed consolidation of closure regulations further clarifies the responsibilities of LQGs. (0182)
Comment: 80 FR 57953, column 3 (VIII., G., 1. & 2.)
Generator Closure Regulations
The MPCA supports the proposed LQG closure requirement consolidation and clarification for the reasons discussed by the EPA at 80 Fr 57953-57955. (0232)
Response: The Agency appreciates the support of the above commenters. 
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*Comment: With respect to LQGs, EPA proposes to consolidate LQG closure regulations at § 262.17(a)(8) and add new closure notification provisions. TWC is concerned that this consolidation would impose many new, onerous closure measures on LQGs who cannot clean close. LQGs store a significantly smaller amount of hazardous waste than treatment, storage, and disposal facilities and therefore should not be subject to the same rigorous closure regulations. (0164)
Response: The Agency disagrees with the commenter. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.
Comment: Topic: Proposed regulation at §262.17(a)(8)  --  Consolidation of LQG Closure Regulations.

Comment: SD agrees with the proposed clarification to consolidate LQG closure requirements in one place in the CFR. Although we like the idea of requiring LQGs to notify the state/EPA that they are closing a unit or operation, by putting this requirement in place it begs the question that should the LQG fail to notify and a cleanup is required, should financial assurance be required up front? (0195)
Response: Financial assurance will be required should a LQG fail to clean close and must close as a landfill. While in operation, we believe other types of insurance will address spills and releases that require cleanup beyond the control of the generator.
Comment: One State believes that EPA's proposed consolidation of closure regulations further clarifies the responsibilities of LQGs. The State does not believe, however, that there would be a benefit for the State or facility if a SQG or LQG were to notify the State either before or after the closure of one of its waste accumulation units. The facility, if it has done its due diligence, will have managed and disposed of its hazardous wastes according to all regulatory standards. The State feels if the facility submits paperwork prior to closure, it does provide the State with the ability to inspect the facility as it is going through the closure process. However, areas of non-compliance should not be found unless the facility already had pre-existing issues. (0217)
Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule.
We agree with the commenter thatif the facility has done its due diligence, it will already have managed and disposed of its hazardous wastes according to all regulatory standards and closure requirements should not be a problem for them. 

Comment: EPA proposes to consolidate its closure regulations for units used by LQGs in a new 40 CFR §262.17(a)(8). Industrial Generators support consolidation and simplification of these requirements into a single place in the regulations. [Footnote 8: As noted in Comment 8, however, these standards should not be identified as Conditions for Exemption. These standards have nothing to do with delineating between VSQGs, SQGs, LQGs and TSDFs.] The concept in proposed §262.17(a)(8)(ii)(A)(1) that closure should be undertaken "to the extent necessary to protect human health and the environment," however, should be moved up to subparagraph (A). That way, this important risk-based concept would more clearly apply to all of the requirements in §262.17(a)(8)(ii)(A), not just to its subparagraph (1). For nearly 20 years, EPA has recognized that decontamination during closure is to be done to risk-based standards and not to non-detect or background levels. See Memo from E. Cotsworth, "Risk Based Clean Closure" (March 16, 1998). Moving to subparagraph (A) this concept that closure decontamination should be done "as necessary to protect human health and environment" will help to clarify that the decontamination work done under subparagraphs (A)(1), (A)(2) and (A)(4) are all to be risk-based. (0219)

Response: The Agency appreciates the above suggestion about moving the phrase at 40 CFR 262.17(a)(8)(ii)(A)(1) that closure should be undertaken "to the extent necessary to protect human health and the environment," subparagraph (A). However, the Agency believes the concept is just as important and applicable where it is proposed to be located. 
Comment: DC supports consolidating the regulations for readability. 

It would be helpful if the regulations offered information explaining how to determine if any of the subsequent sections apply. In particular, in DC most Generators store their waste in containers. If such a facility has never had a significant spill, how should they address the section on managing contaminated soil (as they presumably have had none)? 

Most of DC's LQGs are universities, hospitals, and research facilities. These facilities are usually LQG for generation of Acute Hazardous Waste, and generate and store comparatively small quantities of Hazardous Waste. Their waste is stored exclusively in containers which are removed (per regulation) every 90 days or less. For these facilities, the strengthened closure regulations seem excessive. DC understands that LQG production facilities generate much larger quantities of Hazardous Waste and strengthened closure requirements might be appropriate. DC suggests that Generator status coupled with industry type might be a more appropriate trigger for additional regulation, rather than Generator status alone. (0248)
Response: Regarding the first comment above, if a facility has never had a significant spill, then contaminated soils should not be an issue when completing their closure performance standards. Regarding the second comment above; i.e., accumulating comparatively small quantities of acute hazardous waste that results in the facility being an LQG, this comment is beyond the scope of this regulation. 
Comment: The current regulations explicitly provide that generators that meet the 90 day accumulation requirements are "exempt from all the requirements in subparts G and H of 40 CFR part 265, except for §§ 265.111 and 265.114." 40 CFR § 262.34(a). In the proposal, however, EPA has consolidated certain LQG provisions, and the text quoted above has been omitted. TWC is concerned that the omission of this explicit exemption language will cause confusion and could lead to the inappropriate imposition of onerous closure measures. As recognized in the current regulations, these "90-day accumulation" generators store a significantly smaller amount of hazardous waste than treatment, storage, and disposal facilities and therefore should not be subject to the same rigorous closure regulations.

We understand that EPA's intent in the proposal was to reorganize, clarify and consolidate the closure requirements for drip pads, rather than to impose new closure requirements on drip pad operators. However, in the process of consolidation/reorganization, certain changes were made that could be misinterpreted as imposing new closure requirements. TWC therefore strongly believes that the final rule should include specific language making clear that generators that meet the 90 day accumulation requirements are not subject to he closure requirements in subparts G and H. TWC proposes the following changes in the final rule to clarify this issue:
-Add the following language to section 262.17(a)(8):
"In addition, a generator that complies with 262.17(a)(1), 262.17(a)(2), 262.17(a)(3), and/or 262.17(a)(4) is exempt from all the requirements in subparts G and H of 40 CFR part 265." [Footnote 1:
-Add the following language to section 262.16(b)(4)(iii):
"In addition, such a generator is exempt from all the requirements in subparts G and H of 40 CFR part 265."
Revising the provisions in the manner provided above will clarify that the current exemption remains in place. (TEMP-003-1)

Response: We have modified the closure regulations to be responsive to the commenter's concerns discussed above. 

Section 4.6.2 - LQGs accumulating in tanks

Comment: NJDEP supports closure of central accumulation areas using the same type of closure regulations that apply for tanks, drip pads and containment buildings. (0108)
Response: The Agency appreciates the support of NJDEP regarding this provision.
Comment: 262.17(a)(8) Closure conditions - notify 30 days prior to closure of a unit or closing the site
o This is excessive for container storage - especially as "unit" is not described with respect to container storage - does this include every satellite container? Every satellite area that stored more than 55 gallons of hazardous waste? Even if only central accumulation areas are included, this appears to be excessive, as facilities can have multiple central areas. 
o How are these notifications to be processed, when the facility's generator status does not change? Must the notification be accompanied by an updated contingency plan? Is a tank a unit, or the entire tank system? The 265.197 closure requirements apply to the entire tank system, not to the individual tanks and ancillary equipment within the system. (0214)
Response: The commenter had several comments that we address sequentially as follows: 
 Closure requirements will not be applicable to SAAs.
 LQGs must address all of their CAAs at closure  -  either when closing a unit or the facility. .  
 The LQG has responsibility for submitting closure notifications for either closure of a CAA or facility. The LQG can also opt into placing a notice in their operating records that they are closing a CAA. 
 The contingency plan will have to be updated if it is opening a new CAA.
 Tank closure requirements apply to the entire tank system, consistent with 40 CFR 265.197.
Comment: Such measuring and recordkeeping is not needed to comply with less than the 90-day or 180-day rules for LQGs and SQGs. Those rules require that an accumulation tank for a large quantity generator be emptied at least once every 90 days for an LQG and at least once every 180 days for an SQG. Those rules can be met with records showing that an LQG tank is emptied every 90 days and an SQG tank is emptied every 180 days. Plants already have, or can readily create, records showing that a hazardous waste tank was emptied on a particular date. For example, it is common to have records that a transporter pumped out a hazardous waste tank and transported the waste off-site on a particular date, and that the same tank was again pumped out on a subsequent date. When viewed together, those two records can conclusively show that the tank was emptied within 90 days for an LQG or 180 days for an SQG. So long as it is shown that the tank was emptied every 90 or 180 days, it really does not matter when specific volumes of the hazardous waste were conveyed into the tank; the volume certainly was not residing in the tank for more than 90 or 180 days if shipping records show that those tanks were emptied within those timeframes. (0219)

Response: The Agency agrees that this is a method that can be used to show the tank was emptied every 90 or 180 days. 

Comment: Under proposed 40 CFR §262.17(a)(8)(ii))(A)(4), an LQG that cannot achieve clean closure for a container storage area would have to manage that area as a landfill. This would mean that, among other things, the LQG would be required to: (1) install groundwater monitoring wells upgradient and downgradient from the container area; (2) monitor the wells 30 years or longer during a post-closure care groundwater monitoring program; (3) obtain a post-closure permit to conduct the post-closure groundwater monitoring; (4) by virtue of the permit, conduct solid waste management unit (SWMU) facility-wide corrective action; and (5) maintain financial assurance for the post closure care.

When EPA adopted its initial regulations, it properly distinguished between generators that store small quantities of hazardous waste in containers and generators that store or treat hazardous waste in much larger quantities in tanks, landfills, surface impoundments, incinerators, etc. LQGs that store hazardous waste in containers should not be subjected to the most onerous aspects of RCRA, such as post-closure groundwater monitoring, site-wide corrective action, and RCRA permitting, especially through this rulemaking, which purports to merely consolidate and clarify existing regulations. This proposal is a major departure from existing regulations. Imposing these requirements on generators would go well beyond 42 U.S.C. §6922, wherein Congress identified only six categories of regulations that EPA should promulgate for generators. None of those six include closure, or any of the other TSDF programs that would be triggered. Thus, these closure regulations should not be adopted without full consideration of the legal and practical consequences, and a record that will support the significant consequences of this rule change. [Footnote 9: As noted in Comment 8, these standards should not be identified as Conditions for Exemption. These standards have nothing to do with delineating between VSQGs, SQGs, LQGs and TSDFs.] (0219).

Response: The Agency disagrees with the above comments. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.

Regarding the comment that this proposal is a major departure from existing regulations and imposing these requirements on generators would go well beyond 42 U.S.C. §6922, wherein Congress identified only six categories of regulations that EPA should promulgate for generators, the Agency again disagrees. EPA has full authority to promulgate this regulation concerning closure requirements for LQGs accumulating hazardous waste in containers.

This regulation relates to EPA's authority to promulgate generator regulations on the use of appropriate containers, which is one of the six categories of regulations in RCRA § 3002(a)(3) (42 U.S.C. §6922(a)(3)).   Even if this regulation did not come under this category or any of the other listed categories, EPA still has broad authority under RCRA §3002 to promulgate regulations relating to generators of hazardous waste that "may be necessary to protect human health and the environment." This broad authority includes Congressional mandates to promulgate regulations relating to the listed categories of regulations, but are not limited to these categories. It can include other generator regulations that EPA considers necessary to protect human health and the environment. 

In addition, RCRA §2002 (42 U.S.C. §6912) provides EPA broad authority to promulgate regulations that are necessary to carry out EPA functions under RCRA. This is broad authority in which EPA has discretion to determine what is necessary to implement RCRA. 

EPA has explained in the preamble to this rule why this regulation is necessary for environmental protection. 

Section 4.6.3 - Notification of closure by LQGs

The Agency has prepared the following response to the following commenters because their comments were very similar, if not the same. (0078, 0086, 0089, 0092, 0106, 0164, 0182, 0189, 0192, 0201, 0205, 0219, 0232, 0225, 0240, and 0262)

Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule.

Similarly, with respect to requiring notification both before and after closure of the facility, the agency believes that such notification allows EPA and the states to conduct an inspection, if appropriate, to either monitor the closure, or confirm that closure was properly completed.

Comment: 8. EPA's requirement to provide notification prior to and following closure of a waste accumulation unit is unnecessary.

EPA is requiring that LQGs notify EPA or an authorized state at least 30 days prior to closing a hazardous waste accumulation unit as well as not later than 90 days following closure (proposed 40 CFR 262.17(a)(8)). EPA states that without the knowledge it would gain from this notification, "regulatory authorities do not know whether generators have abandoned the site, leaving behind hazardous waste that could subsequently result in a release to the environment and adverse impacts to human, health, and the environment." [Footnote 7: 80 Federal Register 57955, September 25, 2015.] API is not convinced this notification will achieve EPA's objective. A facility that would abandon a site and leave hazardous waste behind is unlikely to provide the required notification in the first place. Similarly, those that will provide the notification are likely the same facilities that would have closed properly without the notification requirement. Furthermore, other mechanisms are already in place that ensure hazardous waste is removed, including requirements to notify local fire departments as well as the due diligence that typically occurs when industrial property changes hands. (0077)
Response: We agree with the commenter, but only to an extent. Yes we believe facilities that provide notification in most cases will be those who would properly close anyway because they comply with the applicable regulations. As for those not notifying, they will be of two types: (1) those that are not aware of this requirement but will comply with the applicable regulations once notified; and (2) those that would abandon their facility. For those that abandon their site, they will now be on record as being in violation of RCRA closure regulations and they will be responsible for the costs of addressing any closure performance standards. 
But the biggest problem we see with the above comment is if we do not require notification, there is no accountability built into the system/regulatory framework for LQGs to complete the necessary closure performance standards and notify that they have done so. Without such notification, how are EPA and the states to know otherwise?  This notification will provide EPA with important notification about completion of closure, and will also allow us to monitor and inspect the facility to verify proper closure if necessary.
Comment: - 262.17(a)(8)(i)(A): Requiring prior notification of closure of 90-day accumulation areas is burdensome and not required under the existing regulations. It also can result in the delay of closure of these areas; usually, closure would ensue immediately after the need for the area ceases. A delay in closure would not seem to be prudent either operationally or environmentally. 90-day accumulation areas are frequently established and closed out; not all 90-day accumulation is of the nature of a centralized accumulation area. For instance, 90-day accumulation may be conducted temporarily as the result of a spill cleanup or a treatment-by-generator activity. These types of activities should not be discouraged through additional regulatory burdens; EPA's desire to manage 90-day accumulation areas as though they were commercial storage facilities seems excessive. We recommend EPA not adopt this requirement. (0078)

Response: See response at beginning of this section.
Comment: VIII.G. Generator closure regulations. HDOH supports the addition of closure notification requirements for LQGs, as proposed. (0082)
Response: The Agency appreciates the support of this commenter. 
Comment: Colorado is concerned regarding enforceability of stronger closure requirements for LQGs storing hazardous waste in containers, because facilities stop generating hazardous waste, or close container storage areas, or go out of business frequently and for many reasons. Often times, the regulatory agency does not know about this closure for an extended time afterwards.

Response: Regarding the first comment associated with facilities stopping waste generation, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule.

Regarding the second comment about facilities going out of business, the biggest problem we see  is if we do not require notification, there will be no accountability built into the system/regulatory framework for LQGs to complete the necessary closure performance standards and notify that they have done so. Without such notification, how are EPA and the states to know otherwise?  This notification will provide EPA with important notification about completion of closure, and will also allow us to monitor and inspect the facility to verify proper closure if necessary.
Comment: The Oak Ridge National Laboratory (ORNL) requests EPA to reconsider the requirements proposed under 40 CFR 262.17(a)(8)(i) Notification for generators to "(A) Notify EPA no later than 30 days prior to closing a unit that accumulates hazardous waste at the site or prior to closing the site." and "(B) Notify EPA within 90 days after closure of a unit that accumulates hazardous waste at the site or prior to closing the site that it has either clean closed (e.g., complied with the applicable closure performance stands of 262.17(a)(8)(ii) or, if it cannot clean close, notify as a landfill under 265.310 of this chapter." These requirements are perceived to be overly burdensome and provide little benefit for large, diverse, operating facilities which have routine RCRA regulatory oversight. In addition to routine regulatory oversight, ORNL has an existing oversight agreement with regulators as part of a large federal National Priorities Listed site. 

Over the past 5 years, ORNL on average has opened and closed fifteen 90-day accumulation areas (DAAs) in a calendar year. If the proposed notifications are promulgated as written, these actions would result on average in approximately 30 additional notifications to regulatory agencies within a calendar year with little benefit. 

As an alternative to the proposed notifications, ORNL proposes that EPA consider one of the following actions: 1) the generator maintains documentation of area closures which would be retained for a period of 3 years. Records would be available for review by regulators during routine RCRA regulatory oversight. 2) Notifications would be documented and submitted as a single submission with the biennial (or annual) report of hazardous waste activities. 

If the proposed notification regulations are promulgated as written, ORNL is asking for clarification on the format required and whether any fees would be imposed for processing of the submittals. (0086)

Response: See response at beginning of this section.

Comment: The EPA is recommending a requirement that generators must notify the appropriate agency at least 30 days in advance of the closure of a central accumulation area. I recommend against making this change, as it is not needed. If an accumulation area is closed, it will either be located to another part of the site, or the site would have a change where they do not generate waste. If it is relocated on-site, existing regulations on contingency planning should capture concerns. If the site is eliminated, it would mean a change in the generator status, which requires EPA notification. (0089)

Response: See response at beginning of this section.

Comment: The current system in use at SRS documents the opening and the closure of 90-day accumulation areas and insures any residues left in an area after closure are properly addressed. This system has worked for approximately twenty-five years. To date only one 90-day accumulation area has required clean-up. SRNS sees no added value in notifying the state 30 days prior to closing a 90-day accumulation area using form 8700-12. In the case of a short term use area, the notice would have to be written shortly after establishing the area for use. At SRS the 8700-12 form has to be signed by the DOE site manager, which means all levels of management up to that level must sign-off on the form. This process usually takes several weeks. There is a concern that the waste generators who open a 90-day accumulation area may see use of the 8700-12 form as onerous, and rather than close a 90-day area that is no longer needed, keep it open by saying it "may be used in the future." This could result in well over the average number of 90-day areas at SRS in the past several years. Eventual closure of them would probably require sampling to satisfy site management and state inspectors, resulting in higher closure costs.

SRNS agrees with EPA's proposal to document closure of90-day accumulation areas and with EPA's proposal to document clean closure or the failure of a clean closure. However, SRNS believes that maintaining records at the facility is sufficient, rather than notification sent to the state. If notification is to be made, use of a means other than the 8700-12 form is preferred. (0092)
Response: See response at beginning of this section.

Comment: - Closure requirements should only apply to LQGs that regularly operate in that category, and these requirements should not be extended to containers used to accumulate hazardous waste at LQGs; (0093)

Response: The Agency agrees that the requirements should apply to LQGs that regularly operate in that category, but there may be situations where this may not always work. For example, what about facilities that regularly operate as LQGs but drop down to an SQG status a couple of months before closing their facility? What about the situation where a facility vacillated between SQG and LQG over the course of a long period of time? For these reasons, EPA and the states will make a case-by-case determination on whether closure performance standards are applicable to the facility based on the facts of the situation.  

Comment: If promulgated, this requirement would make a significant demand on resources of US EPA or authorized state involved in closure of these LQG units.

The notifications proposed in this rule would generate thousands of notices per year and put additional strain on already scarce US EPA and authorized states' resources. 
For these reasons, we strongly recommend that US EPA not adopt the proposed closure notice regulations. Instead, we suggest that US EPA gather additional data on this matter from entities such as LQGs and authorized states before implementing any new closure notification regulations.

Given the practice described above of LQGs using temporary <90-day container accumulation areas during times of major maintenance activities, LQGs will not be able to consistently give 30-day closure notice simply because these temporary waste areas are commonly operational for a duration shorter than 30 days.

US EPA should not promulgate a regulation that will put LQGs in compliance jeopardy simply because a waste accumulation is needed for less than 30 days.

Closures can be lengthy and time-consuming. Generators are not likely to undertake this costly activity without prior concurrence from US EPA or the appropriate state agency. We doubt that US EPA and state agencies are adequately prepared and staffed to handle the concurrence requests and reviews that will be required before a generator is comfortable giving closure notice.

We request that US EPA not promulgate this measure, but instead reconsider the basis for such a rule. (0106)
Response: See response at beginning of this section.

Comment: NJDEP supports requiring LQGs to notify at least 30 days prior to closing the generator's site or when the generator closes an accumulation unit. (0108)

Response: The Agency appreciates the support of this commenter. 
Comment: The proposed rule would also require LQGs to notify EPA or the authorized state at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste. TDEC is supportive of this requirement, but suggests that EPA consider circumstances in which it may not be feasible for a generator to notify 30 days in advance due to unforeseen circumstances. Additional language, such as notification within 2 working days of decision the closure is needed, should be developed for application in instances where closure was not anticipated. (0116)

Response: The commenter raises an interesting point. There may be situations where it is not feasible for the generator to notify 30 days in advance due to unforeseen circumstances. The Agency, in response to comments, has modified the regulations to provide sufficient flexibility to address this scenario. 
Comment:  FR Page: 57954 -57955
Citation: 40 CFR 262.17(a)(8)
40 CFR 262.34
Topic: Generator Closure Regulations (VIII.G.2.)

Comment: BNI-WTP is not in favor of the proposed change to notify regulator when open or close waste management units. This will be too burdensome for generators and negate flexibility by adding unneeded administrative requirement, especially for 90-day accumulation areas. As long as the regulatory process is adhered to for closing (i.e., clean closure) a 90-day accumulation area, and the closure is documented appropriately, notifying the regulator would be an extra burden for both parties. Possibly would work for other waste management units like drip pads or containment buildings.

WRPS requests the addition of text to this proposed change to specify that accumulation areas located within TSD facilities may be closed with their associated TSD units. Closing an accumulation area prior to closure of its TSD unit would result in redundant activity. The generator should be allowed to decide to incorporate closure of the accumulation area with the TSD unit to meet closure performance standards.

WRPS requests the addition of text to this proposed change to specify whether the change would preclude leaving an accumulation area empty for a period of time without closure. As proposed, the regulations could be interpreted to require that the accumulation area be closed once it becomes empty, which, if the area were to later be reopened, would require multiple closures.
WRPS requests clarification on this proposed change to identify whether such a closure of a less-than-90-day accumulation area located at a TSD unit would be considered partial closure of the TSD unit.

FR Page: 57954 -57955
Citation: 40 CFR 262.17(a)(8)
40 CFR 262.34
Topic: Generator Closure Regulations (VIII.G.3.)
Comment: WRPS is not in favor of this proposed change as it would require time and money expenditure to implement for each required closure. (0123)
Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule. We believe this change will address the commenter's concerns. 

Regarding the commenter's request for the addition of text to specify that accumulation areas located within TSD facilities may be closed with their associated TSD units, the Agency believes this is a case-by-case situation that can be addressed under modifications to the TSD facility's permit, or when the TSD facility's permit is up for renewal. 

Comment:  NDEQ also supports the third closure proposal to require LQG notification upon closure of their hazardous waste accumulation units. NDEQ agrees with EPA that, at present, regulatory authorities have no means of knowing whether a generator has properly closed or simply abandoned the site, leaving behind hazardous waste that could release to the environment. Though Nebraska's LQG universe is comparatively small and easily monitored by national standards, the notification is consistent with the broader regulatory program for LQGs and a true "cradle to grave" hazardous waste management system. To reduce the paperwork burden and allow states to focus on the results of closure, NDEQ supports just a single notification no later than 90 days after closure. (0145)

Response: The Agency appreciates the support of NDEQ regarding this provision. However, the Agency believes when a facility is closing, the LQG should give prior notice to EPA or the authorized state so that they can either plan to visit the facility prior to closing to determine what must be addressed, if anything, or after closure of the facility, to determine if they have properly/clean closed. 

Comment: Furthermore, under the proposal, LQGs would be required to notify EPA no later than 30 days prior to closing a hazardous waste accumulation unit. § 262.17(a)(8)(i)(A). Within 90 days after closure, the LQG would be required to notify EPA that it has either clean closed or, if it cannot clean close, notify as a landfill. §262.17(a)(8)(i)(B). TWC believes that closure notification is unnecessary and burdensome. If, however, EPA believes that some form of notification is required, TWC urges EPA to adopt only the 90-day post-closure notification provision.

Notification 30 days prior to closing a hazardous waste accumulation unit or site does not provide any measurable benefits for EPA or state agencies, and is not needed to incentivize generators to close units or sites properly. See 80 Fed. Reg. 57,955, col. 3. Requiring post-closure notification sufficiently creates the stated objectives without adding paperwork. (0164)

Response: See response at beginning of this section.

Comment: 4. Closure Notification for Generators Requires LQGs to notify EPA or their authorized state when they plan to close either a hazardous waste accumulation unit or their generator site. 
DTSC supports the amendments to 40 CFR 262.17 regarding pre- and post- closure notifications, consolidated and strengthened closure standards. (0174)

Response: The Agency appreciates the support of this commenter. 
Comment: CT DEEP also supports EPA's proposal to require LQGs to provide notification of closure of a hazardous waste storage area at least 30 days prior to beginning closure, and to provide notification within 90 days after completing closure. CT DEEP notes that such notification would allow CT DEEP to conduct an inspection, if appropriate, to either monitor the closure, or confirm that closure was properly completed. CT DEEP also notes that it has drafted amendments to Connecticut's hazardous waste regulations that are very similar to this proposal by EPA. (0178)

Response: The Agency appreciates the support of this commenter. 
Comment: DEQ does not believe, however, that there would be a benefit for the state or facility if an SQG or LQG were to notify the state either before or after the closure of one of its waste accumulation units. The facility, if it has done its due diligence, will have managed and disposed of its hazardous wastes according to all regulatory standards. DEQ instead believes that facilities should be required to notify in the event that the facility closes, which would by definition include closure of waste accumulation units. (0182)

Response: See response at beginning of this section.

Comment: 11. FR Section VIII.G.3- Notification by LQGs Upon Closure of Their Hazardous Waste Accumulation Units

Comment- Although Idaho DEQ does agree that an LQG closing a site should notify using the form since that amounts to a site inactivation and has impacts on a state's numbers for reporting and inspection purposes, Idaho DEQ has concerns about the proposal for LQGs closing an accumulation unit to notify using the Site ID form. Since LQG accumulation units are not currently specified on the Site ID form and the level of detail and information wanted would unduly expand the length of the Site ID form unnecessarily, the Idaho DEQ suggests that instead of using the Site ID form for notification of an accumulation unit closing, EPA identify in the rule what information would be needed and allow the sites to submit a letter capturing all of the pertinent information. Idaho DEQ believes notifications should be submitted prior to closure to afford a better opportunity to ensure all applicable standards are met. (0189)

Response: See response at beginning of this section.

Comment: We also question the need to notify EPA before and after closure. Surely overtaxed EPA regional staff have more pressing concerns. It would be reasonable for EPA to require notification if a generator is proposing to close a storage area with some residual contamination. (0192)

Response: See response at beginning of this section.

Comment: Requiring LQGs to notify 30 days prior to closure creates unnecessary burdens on the generator. Unlike tanks, drip pads, and containment buildings, where dismantling of equipment could pose risk to the environment, closure of a central accumulation area where hazardous waste is accumulated in containers requires only removal and transpot1 of the containers themselves. Requiring prior notification would delay closure of these areas. In addition, imposing the same types of closure requirements that are applicable to tanks, drip pads, and containment buildings, to areas storing containers is overly burdensome. For example, LQGs storing hazardous waste in containers will be required to have a professional engineer certify closure, perform post-closure care, and could be subject to the financial assurance requirements. Additionally, the requirement is unclear as to whether this closure certification requirement would apply to Satellite Accumulation Areas ("SAAs"). (0201)

Response: See response at beginning of this section.

Comment: Additionally, notification to EPA of planned closure activities both before closure and after closure is complete are proposed. The requirement to notify before and after places an additional and unnecessary burden upon the generator and provides no environmental benefit. Storage areas may require closure and/or movement to another in-plant location, as a result of various site activities, such as new construction, internal procedure requirements and standards, changes in ownership, etc., that are unrelated and immaterial to the storage of hazardous waste in containers. (0205)

Response: See response at beginning of this section.

Comment: EPA is proposing to require a LQG to notify EPA or the authorized State using EPA Form 8700-12 at least 30 days prior to closing the generators site or when the generator closes a unit accumulating hazardous waste. One State noted Form 8700-12 does not require the LQG to notify of the types of units being used to accumulate hazardous waste, therefore there is no place to mark on the form that the units are closed. Does EPA intend to modify Form 8700-12 as well as RCRAInfo, the national database in which all of the data from Form 8700-12 is entered?

The proposed rule would also require LQGs to notify EPA or the authorized State at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste. One State is supportive of this requirement, but suggests that EPA consider circumstances in which it may not be feasible for a generator to notify 30 days in advance due to unforeseen circumstances. Additional language, such as notification within two (2) working days of decision the closure is needed, should be developed for application in instances where closure was not anticipated. (0217)
Response: Regarding the first comment, form 8700-12 will have to be modified to address closure notifications. Regarding the second comment, there may be situations where it is not feasible for the generator to notify 30 days in advance due to unforeseen circumstances. The Agency, in response to comments, has modified the regulations to provide sufficient flexibility to address this scenario. 
Comment: EPA should not require generators to notify of closure. (See Comment #30).

EPA proposes to require LQGs to notify EPA no later than 30 days prior to closing any unit that is used to accumulate hazardous waste, and within 90 days after closure of the unit. [Footnote 10: As noted in Comment 8, these standards should not be identified as Conditions for Exemption. These standards have nothing to do with delineating between VSQGs, SQGs, LQGs and TSDFs.] Although notification of closure of generator accumulation unit sounds simple, it would have widespread implications. [Footnote 11: We assume that this notification requirement would not apply to satellite accumulation areas since they are not subject to a closure requirement. EPA should confirm this in the final rule.]

Less-than ninety-day accumulation occurs not only in well-defined tanks and at a central container storage area, but there are many other areas on a plant site where temporary less-than ninety-day accumulation occurs for short periods of time. Plants routinely use less-than ninety-day hazardous waste container accumulation areas for use by contractors during maintenance activities. Examples include lead paint abatement, sandblasting of equipment and tanks so that repairs can be made, the application of industrial-strength coatings, the cleanout of process equipment and raw material and product tanks prior to repair. Short-term less-than ninety-day accumulation areas are also commonly used in R&D projects. Most of these short-term less-than ninety-day accumulation projects occur within buildings where there is full containment, or outside on concrete or asphalt pads at or near plant operations that include secondary containment and/or drainage and collection systems to capture any releases. Thus, although the likelihood of a release during these short term projects is very minimal, to the extent a release occurs, it will typically be contained. Moreover, RCRA-trained personnel will be around the hazardous waste accumulation activity when it is occurring. Further, any release into the environment of more than 100 pounds of hazardous waste would require RQ reporting under CERCLA, and any release may also trigger action under the site's contingency plan. Thus, it is very unlikely that there will be a release from these short-term less-than ninety-day activities, and if there is one, it will be promptly addressed by on-site personnel and be contained.

In addition to these short-term accumulation areas associated with plant operations, short-term less-than ninety-day accumulation areas are created in connection with RCRA corrective action, closure, plant construction and other on-site projects which might result in the excavation of contaminated soil or debris. Typically near the area of excavation, a less-than ninety-day area will be created to place excavated contaminated soil, gravel, asphalt, concrete and debris into roll-off boxes, dump trucks or smaller containers. These less-than ninety-day areas are almost always within the area of contamination (AOC), and sometimes within the area of a previously-defined solid waste management unit (SWMU) that is subject to corrective action or a hazardous waste management unit (HWMU) that is otherwise subject to closure. When that less-than ninety-day accumulation area ceases to be used, it would not be necessary to give notice that it will undergo closure because the whole area is undergoing closure or some other remedial project. Nor would it be necessary to separately undertake remediation at less-than ninety-day area in most cases. The overall remediation will already be under the oversight of plant personnel and in many cases the agency pursuant to order requirements or other regulatory programs. This is why EPA has long recognized that accumulation of hazardous waste during remediation within an existing AOC is not itself a new accumulation unit and would not require a permit or closure. See "Management of Remediation Waste Under RCRA," EPA 530-F-98-026, p. 3 (Oct. 1998).

We estimate that at a typical LQG, there would on average be approximately three of these short-term discrete less-than ninety-day accumulation areas created each year for the type of plant operations or remediation related projects described above. Based on the latest 2011 data from the National Biennial RCRA Hazardous Waste Report, there were 14,262 LQGs in the United States. If each of these LQGs has to submit a closure notification for these temporary less-than ninety-day areas, over 40,000 notifications a year would have to be created and submitted by the LQGs and received by EPA or authorized states each year. Even if only half of the LQGs create an average three short-term less-than ninety-day areas, that is still 20,000 notifications. The RIA to this proposed rule did not include a calculation of the regulatory burden, much less the agency resources, that would be required by this notification requirement.

Regarding the 30 day prior notice requirement, in many cases, it is not feasible to give notice 30 days prior to closing these temporary less-than ninety-day units. These temporary less-than ninety-day accumulation areas are created for specific project purposes. In most cases, the projects will last a few days or a few weeks. It is not practical for the project personnel, especially third-party contractors who often do these projects, to give the agency notice and wait around for the thirty days to expire before they begin the closure activities of removing the hazardous waste and contaminated soil and debris. Often these projects occur in tight spaces where the activity interferes with ongoing operations and may even require shutdown of certain operations. Many of the projects cannot tolerate a 30 day prior notice requirement because that will mean extended interruption of plant operations.

Industrial Generators are also concerned that the notification will result in agency officials directing closure operations in a manner that leads to unnecessary sampling, extended delays and excessive remediation with ill-defined endpoints. Industrial Generators understand that while they are conducting these less than ninety-day accumulation activities, if releases occur that could impact the environment, such as into underlying soil, they are responsible for recovering the released material and removing any impacted soil, and they will promptly do that. But such releases are rare, and because of the prompt response, do not require extensive remediation. In almost all cases the accumulation occurs in tanks or containers that are kept closed when not in use, personnel are around when hazardous waste is being added or removed from the tanks or containers, and there are no releases into the environment.

Nonetheless, inspectors might take the position that the site owner must prove the negative -- that there has been no release into the nearby soil. To prove this, the inspector may require samples to be taken, which often means drilling through secondary containment that will affect the future integrity of those structures. The unnecessary additional costs and delays associated with sampling, awaiting results, evaluating the results against various risk-based standards, and reporting to the Agency will make what was supposed to be just a short-term less-than ninety-day accumulation effort associated with a specific plant project, like a tank clean out, into a much bigger, longer and complex project.

For all the foregoing reasons, EPA should not require in a final rule that notification be given by LQGs of closure of less-than ninety-day accumulation areas. (0219)

Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: Although TCCI member companies object to the improper management of containers that are stored on the ground, the proposed notification and documentation/ certification of closure is an over-reaction when applied to all waste management units.

For example, current regulations concerning accumulation of hazardous waste in tanks require secondary containment and reporting of any release to the environment (air, ground or water) in excess of one pound from any portion of the tank system. These provisions prevent the situations described in the preamble and provide the agency to respond when an event occurs and not years later at closure.

In addition, TCCI reminds EPA that containers also include tank trucks which are managed almost without exception on concrete or asphalt to provide support for the containers. A roll-off is also a container that manages bulk solids representing little opportunity for environmental contamination. In addition, accumulation in such units is temporary as demiurge costs discourage long term management in these containers. These types of containers are frequently used for short term accumulation as when a facility has a shutdown or a change in process. Such units may be onsite for less than 2 weeks and are gone. The trailer pads where they sat are no longer 90 day areas and notification of closure would have to begin before the unit was placed in service. Such activities can also result in additional small container accumulation requirements. Again, after 90 days they must be removed and the area where they were temporarily accumulated would require agency notification prior to closure and review of the final closure notification.

In addition, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) requires immediate reporting of all releases of hazardous waste to the environment of more than 100 lbs or less for listed hazardous wastes. Such required notifications under CERCLA can also alert RCRA regulators to the improper management of hazardous waste at a facility.

To avoid unnecessary paperwork, TCCI suggests that the closure notifications apply only to accumulation units without secondary containment or that have the potential to release constituents to the ground or surface waters as described in the preamble. (0225)
Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: 80 FR 57955, column 2 (VIII., G., 3. & 4.)
Notification by LQGs Upon Closure of their Hazardous Waste Accumulation Units
The MPCA does not support the proposed requirement that LQGs notify EPA or their authorized state prior to closure of a hazardous waste accumulation unit. The MPCA can discern no real environmental benefit to being notified a full month prior to an LQG ceasing use of a hazardous waste storage area or unit. Since the site could and likely nearly almost always would continue to use the unit until it actually needs to be closed, an inspector visiting the site as a result of the closure notice would see nothing different than the unit in normal use, which would gain no benefit above a routine hazardous waste compliance inspection. In addition, since many LQGs daily place hazardous waste containers in and out of use, the proposal is realistically unfeasible, since there is no difference whatsoever between taking a hazardous waste container out of use temporarily and permanently. Thus, generators would have no way to determine if they were in compliance or in violation of this proposed requirement. Finally, the MPCA believes that the very large number of `pre-closure' notifications submitted by generators to EPA or authorized states would require significant amounts of regulator resources and time to receive, process, and track them whether they saw any benefit to them, or wanted them or not, diverting scant resources away from already stripped inspection and compliance verification programs in many states.

The MPCA does not support the proposed requirement that LQGs notify EPA or their authorized state subsequent to closure of only a hazardous waste accumulation unit. The MPCA has already discussed in the preceding paragraph its concerns regarding attempting to require notification of any kind regarding closure of a container. Post-closure notification of a container closure raises exactly the same concerns as pre-closure notification. A `closed' container is either just an empty container, which may be placed back into service at any time, or simply is gone. The only thing an inspector would have to look at in the case of a properly or even improperly closed container unit is empty air, since the container would be gone (the inspector would not even have a specific place on the floor where the container used to be to look at, since hazardous waste containers may be stored anywhere, and there is no restriction on moving them anywhere on a site for any time, as long as any location where a hazardous waste container is placed meets the applicable requirements, including impervious flooring, containment, and weekly inspections). Similarly, postclosure notice only serves a function if the regulatory agency receiving the notice can take any meaningful action in response. The only real response to a notification of past closure would be to send an inspector to see the formerly closed unit. If the unit is properly closed, there is nothing to see - tanks are emptied, removed, cut up for scrap, and shipped off-site. Drip pads are discernable from these concerns if not only closed but removed, as the soil underneath the former structure remains and may present an environmental risk from now-exposed contamination. The MPCA would support a post-removal notification requirement solely for drip pads and containment buildings.

The MPCA supports the proposed requirement that LQGs notify EPA or their authorized state subsequent to closure of an entire operating site (including closure by sale or other transfer of the site to another operator). However, the MPCA cautions that most often sites are closed upon sale of the site to another party, and requiring post-closure corrective actions to a site no longer controlled by the generator is extremely problematic and often not workable. Thus, though notification upon site closure at least serves the purpose of notifying the regulating agency that another party will likely control the site, it can often serve only a limited cleanup/inspection purpose. (0232)

Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: 11. EPA Should Not Adopt the Proposed Closure Requirements that Would Be Applicable to Conditionally Exempt LQGs if they Stop Accumulating Hazardous Waste in Containers.

EPA is proposing to strengthen the closure regulations for LQGs accumulating hazardous waste in containers in central accumulation areas that plan to stop hazardous waste accumulation in those containers by requiring them to meet the same type of closure regulations that apply for tanks, drip pads and containment buildings, including in those situations where a generator is not able to demonstrate that its contaminated soils can be practicably removed or decontaminated. This notification would state that the LQG has clean closed or failed to clean close and therefore must close as a landfill. Additionally, EPA is proposing that an LQG notify EPA or their authorized state within 90 days after closing the site or the unit accumulating the hazardous waste.

FPA is not in favor of the proposed requirement for an LQG to notify EPA or the authorized state using EPA FORM 8700 - 12 at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste. Not infrequently in the flexible manufacturing process, FPA's members may "close" ink rooms where hazardous wastes are accumulated. If there have been no spills or releases and the facility is not changing ownership, FPA's members see no additional benefits to the proposed closing procedures since containers are already required to be labelled and disposed of in accordance with the regulations by licensed TSDFs. More importantly, the proposed new requirements seem to restrict the ability of operators to move the location of accumulation sites, which can be important to do to avoid risk to workers and potentially the environment. Therefore we submit that the benefits of the proposed approached are outweighed by its cost and should be limited to facilities that have experienced reportable spills or releases and/or is changing ownership or control. FPA also asks for clarification if the agency plans on revamping FORM 8700-12 to meet this proposal's reporting purposes, as the current FORM does not appear to accommodate the proposed reporting. (0240)
Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: DC supports notification of closure only once no later than 90 days after closure. DC suggests that EPA develop a simple form specific for this task, and that it be possible to complete the form online via MYRCRAID. (0248)
Response: The Agency appreciates the support of this commenter. The Agency intends to look into developing a simple form for this task and eventually online form via MYRCRAID.
Comment: Further, EPA is proposing to require an LQG to notify EPA or the authorized state using EPA form 8700-12 two different times: at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste, or closure of site altogether; and subsequently, 90 days after closing the site or the unit accumulating the hazardous waste. This notification would state that the LQG has clean closed or failed to clean close and therefore must close as a landfill. EPA intends this provision to ensure that sites are properly closed.

ACA contends that pre-and post-closure notification would not provide an added benefit to human health or the environment, or even to EPA, because EPA will be notified once the closure is completed, and generators would certify that they have performed their due diligence, which is EPA's primary concern. EPA contends that notifications are necessary to determine whether sites are closed properly and not abandoned leaving behind hazardous waste. However, facilities that would abandon a site would most likely not notify the regulatory agencies, and facilities that are not closing the site but only the hazardous waste accumulation unit are not likely to abandon hazardous waste. Even if a site closes, it is in the best interest of the facility owner to ensure proper closure in order to sell the property given that an environmental site assessment would be a means to ensure sites are closed properly. At the very least, closure notifications should not be required for sites that remain active and are closing an accumulation unit. ACA also discourages the Agency from imposing this new, additional notification requirement on SQGs. (0262)

Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Section 4.6.4 - Certification of clean closure by LQGs

Comment: Regulations 262.17 and 262.34
Small Quantity Accumulation
The AEF recommends that the EPA give consideration to LQGs that do not store substantial quantities of hazardous waste. LQGs that store small quantities of hazardous waste may not present the same magnitude of risk as landfills and other sites that accumulate larger quantities of hazardous waste. Onerous landfill closure requirements are not appropriate for each and every LQG that cannot demonstrate "clean closure." (0087)
Response: The comment is beyond the scope of this rule since the agency did not propose or take comment on this scenario. 
Comment: USWAG also objects to the requirement imposing a certification on closure for central accumulation area units in addition to notification of closure. Notice of closure should be sufficient for compliance and enforcement purposes. (0093)
Response: Certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). 
Comment: NJDEP supports LQG's notifying within 90 days after closure of the site or a hazardous waste accumulation unit that they have either clean closed or, if they cannot clean close, that they will close as a landfill. We also support requiring LQGs certify that they have clean closed or failed to clean close.
Response: The Agency appreciates the support of NJDEP. Regarding its last comment, certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). 
Comment: Certification of clean closure (or failure to clean close) may be a particular challenge for generators operating on leased properties, especially to the extent that it might require certification about site conditions that the generator has no knowledge of or control over. This is a particular issue in the retail sector, since many retail locations are on leased premises within multi-tenant properties, such as a mall or shopping center.

In light of the above, the Retail Associations urge EPA to either abandon its proposals regarding closure of generator accumulation areas, or substantially modify the proposals to address the issues discussed above. (0168)

Response: In situations where a retailer is leasing land for its business, it will have do its due diligence and determine what was on the site before it took over the land. Also, certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). 
Comment: Requirement of Notification to Add or Remove Accumulation Storage Areas

Universities have many areas of Satellite Accumulation that change in concert with relocation of laboratory/shop/studio areas. Notifications of these changes could be frequent and constant depending on the level of research activity, development of new research areas and buildings and the nature of the research itself. This places an undue burden on university staff and takes away time from essential hazardous waste duties and safety. (0209)
Response: SAAs are not subject to closure requirements under this rule. 
Comment: DC supports having LQGs certify as part of the closure completion form that they have clean closed. DC requests that EPA develop a simple form specific for this task which can be completed online via MYRCRAID. (0248)
Response: Certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). 
Also, the Agency will look into developing a simple form for this task and eventually online form via MYRCRAID.

Section 4.6.5 - Notification of closure by SQGs

Comment: With respect to proposed notification to the EPA for closing Hazardous Waste accumulation units for SQGs, Minnkota considers notification as an unnecessary action. A reduction of generation would already be reflected in reporting or generator status downgrade to CESQG status. If anything, a line or check box could be added to the reporting format. However, if proposed biennial reporting for only LQGs (part 262.41) takes effect, then a notification for SQGs may be helpful. (0076)
Response: SQGs are not subject to closure requirements under this rule. However, there may be situations where this may not always work. For example, what about facilities that regularly operate as LQGs but drop down to an SQG status a couple of months before closing their facility? What about the situation where a facility vacillated between SQG and LQG over the course of a long period of time? For these reasons, EPA and the states will make a case-by-case determination on whether closure performance standards are applicable to the facility based on the facts of the situation. 
Comment: We do not want a closure notification requirements for SQGs.
Response: See response to Comment 0076 above. 
Comment: With regard to EPA's request for comment on requiring SQGs to notify when they close, Colorado does not think it is necessary. We are concerned that the enforceability of this requirement would be burdensome, similar to our concerns for LQGs mentioned previously. In addition, given the size and rate of change in the SQG universe, tracking these notifications would not be practical. (0085)
Response: See response to Comment 0076 above. 
Comment: NJDEP supports that SQGs which stop accumulating and close any or all of their hazardous waste accumulation units should notify EPA or the state within 60 days after closing. (0108)

Response: See response to Comment 0076 above. 
Comment: Notification after a unit is closed but within 30 days is sufficient. Notification before it closes is not needed.

US EPA requested comment on whether SQGs that stop accumulating or close any or all of their units should notify within 60 days after closing. The Expert Group would prefer that all sites required to have an EPA ID send a notification when they close, within 30 days. Sixty days is too far removed from the activity cessation. The site contact person may be unknown or unreachable as time passes. If we decide to visit the site, the sooner we know about the closure, the better. (0125)
Response: See response to Comment 0076 above. 
Comment: DEQ does not believe, however, that there would be a benefit for the state or facility if an SQG or LQG were to notify the state either before or after the closure of one of its waste accumulation units. The facility, if it has done its due diligence, will have managed and disposed of its hazardous wastes according to all regulatory standards. DEQ instead believes that facilities should be required to notify in the event that the facility closes, which would by definition include closure of waste accumulation units. (0182)

Response: See response to Comment 0076 above. Regarding the last comment, in the final rule, LQGs will have the option of either placing a notice in their operating record that they have closed a waste accumulation area, or notify they intend to clean close and notify they have clean closed or failed to clean close (i.e., comply with the closure performance standards. 
Comment: 27. Pages 57955:75956, Section VIII.: Utah agrees that SQGs should notify the State/EPA within 60 days after closing. However, this will be an issue for any generator that went out of business and failed to notify the appropriate agency in advance of such an action. (0185)

Response: See response to Comment 0076 above.
Comment: 12. FR Section VIII.G.4- Request for Comment- (Whether SQGs that stop accumulating and close any or all of their hazardous waste accumulation units should notify EPA within 60 days after closing)

Comment- Idaho DEQ believes receiving a closure notification after closure would only be effective for SQGs that remain in business after closing a unit or units. If the business is closing, notifying the regulatory agency after the fact would not be nearly as helpful and protective as notifying prior to closure. (0189)

Response: See response to Comment 0076 above.
Comment: The state agrees that SQGs should remain not subject to the clean closure requirements. Although there would be a benefit in having SQGs notify when site closure occurs, we do not believe it should be a requirement. (0195)
Response: See response to Comment 0076 above.
Comment: One State noted if SQGs become subject to this requirement it will mean more of a burden to the States to process the forms and conduct inspections to verify closure. Additionally, numerous data management changes will be needed after the final rule, including RCRAInfo database, Form 8700-12, State hazardous waste databases, along with State forms and instructions. (0217)

Response: See response to Comment 0076 above.
Comment: EPA is also requesting comment regarding whether SQGs that stop accumulating and close any or all of their hazardous waste accumulation units should notify EPA within 60 days after closing. One State believes if EPA is proposing to add closure notification requirements for SQGs, they should resemble requirements for LQGs, including the notification timeframes. With that said, the State supports the requirement for notifying when the facility closes using EPA Form 8700-12. The notification should be sent to EPA or the authorized State. (0217)
Response: See response to Comment 0076 above.
Comment: EPA should not require generators to notify of closure. (See Comment #30). (0219)
Response: See response to Comment 0076 above. Otherwise, LQGs shall be subject to closure notification requirements. 
Comment: DC recommends the same time limit for SQGs as for LQGs  -  90 days. DC supports similar notification requirements and associated simple forms for SQGs. In order for the States to have an accurate understanding of the scope of Hazardous Waste generation within their jurisdiction, the States must know which facilities have closed  -  or moved. (0248)


Response: See response to Comment 0076 above.

Section 4.6.6 - Other

Comment: 262.17(a)(9): We have no issue with requiring the disposal restrictions be followed. We do note that 262.17 header text states that generators need not comply with Part 268 requirements if they follow the requirements of 262.17, so to say they do not apply as "independent requirements" only to add them back in this paragraph seems redundant. (0078)


Response: EPA has removed the reference to Part 268 in the 262.17 header language in the final rule. The requirement, however, remains the same as in the proposed rule. Specifically, SQGs and LQGs are required to comply with all applicable land disposal requirements at 40 CFR part 268.

Comment: - 262.17(a)(8)(i)(B): See our comment on 262.17(a)(8)(i)(A). This is also the first time we have seen container accumulation linked to closure as a landfill (reference to 40 CFR 265.310). As storage is not considered to be "placement on the land" but simply "holding for a temporary period" [Footnote 9: 40 CFR 260.10, definition of "storage".], the leap from 90-day accumulation to landfill is extraordinary. We suggest EPA consider alternatives for generator accumulation units that cannot clean close. For instance, RCRA corrective action can be invoked without having to establish the unit as a disposal facility.
Response: The Agency is applying the same closure performance standards to container waste accumulation areas as those currently associated with tanks and containment buildings. 

Comment: 262.17(a)(8)(ii)(A)(4): See our comment on 262.17(a)(8)(i)(B) regarding consideration of generator accumulation areas as landfills. This requirement as given in this subparagraph is likely impossible for generators to meet as regards Subparts G and H of 40 CFR 265. Generator accumulation is seldom constructed with the anticipation that double liners and groundwater monitoring systems will be necessary, and installing them after the fact is frequently impracticable. We recommend that EPA move units like these to the RCRA corrective action program in order to more promptly and efficiently move these units to proper cleanup, in lieu of using the cumbersome RCRA permitting and closure process. (0078)
Response: The Agency is applying the same closure performance standards to container waste accumulation areas as those currently associated with tanks and containment buildings. The Agency sees no reason to differentiate requirements for generators that can't clean close or meet the applicable closure performance standards. 


Comment: For waste containers managed in <90-Day Central Storage Areas (as newly defined in the rule), EPA proposes to require compliance with the tank closure standards when the generator ceases waste accumulation in the Central Accumulation Area. Areas which cannot be closed in accordance with the standards may be considered landfills with attendant post-closure care, monitoring, maintenance and financial assurance requirements.
The storage areas are already the subject of strict container management standards, spill response and cleanup, and inspections, including proposed documentation of weekly inspections. These current requirements assure prompt identification of any releases and assure they are appropriately addressed at the time they occur. To then require additional sampling, testing, etc., without any indication or history of container storage area issues, is both unnecessary and places an undue burden on the generator. The required additional agency notices are also unnecessary paperwork, serving only to provide opportunity for the agency to intervene in facility operational decisions and/or increase the potential for citations and violations without reducing environmental risk or impact associated with container storage areas. (0205)
Response: The Agency disagrees with the above comments. Any additional closure requirements will occur if the facility cannot clean close. If the facility complies with the container management standards, or tank, containment building and drip pad management standards, this issue is not applicable. 
Comment: The changes do not resolve the issue of wood preservers that convert drip pads to use alternate, non-CCA chemistry. The facility and drip pad will remain in use, but the requirement to determine whether or not releases have occurred is deferred indefinitely, as are the provisions requiring closure as a landfill. (0214)


Response: That is correct. If the state has issues, it can always be more stringent than the federal program. 
Comment: The States believe additional clarification is needed for the closure requirements. (0217)
Response: Without additional information, the Agency cannot respond to this comment although we believe other sections address the states concerns. 
Comment: In addition, TWC requests that EPA remove the following language from section 262.17(a)(8)(ii)(A)(4):
"In addition, for the purposes of closure, post-closure, and financial responsibility, such a waste accumulation unit is then considered to be a landfill, and the generator must meet all of the requirements for landfills specified in subparts G and H of part 265 of this chapter."
The first sentence of proposed section 262.17(a)(8)(ii)(A)(4) already makes clear that facilities that cannot clean close must be considered a landfill, and also provides that the requirements of § 265.310 are triggered. Section 265.310 in turn imposes certain specified provisions of subpart G. Therefore, the first sentence of 262.17(a)(8)(ii)(A)(4) fully addresses the closure requirements for facilities that cannot clean close, and the second sentence should be deleted. TWC is concerned that the proposal would otherwise impose new and unnecessary closure burdens on generators who cannot clean close. As the current regulations reflect, generators store a significantly smaller amount of hazardous waste than treatment, storage, and disposal facilities and therefore should not be subject to the same rigorous closure regulations.

TWC requests that EPA remove the reference to 265.445 from sections 265.111(c) and 265.114. EPA states in the preamble that the failure to refer to generator-only drip pads in these general closure requirements provisions was an "inadvertent oversight". 80 Fed. Reg. at 57954. However, this is incorrect  -  a reference to drip pads was intentionally omitted from Section 265.111(c) because drip pads are subject to separate, unit-specific closure requirements. In addition, including the reference to drip pads in sections 111 and 114 is unnecessary because
EPA's proposed § 262.17(a)(8) includes the general closure performance standards found at 265.111(a) and (b), as well as a modified version of § 265.114 (disposal or decontamination of contaminated equipment, structures, and soil, as well as management of any leakage) with drippad-specific language. Thus, the closure requirements related to drip pad large-quantity generators are now captured in section 262.17, and there is no reason to reference drip pads in the general closure requirements at sections 265.111 and 114. Such references have the potential to cause confusion, and should therefore be removed.

Finally, a few revisions are necessary to clarify the distinction between interim status drip pad closure and small or large quantity generator-only drip pad closure. For generator-only drip closure, 40 CFR 265.445(c) is not applicable. See the attached 1998 EPA guidance document which makes clear that for large quantity generator-only drip pad operators, the applicable closure requirements are 262.34(a)(1)(iii) and "265.445(a) & (b)". Thus, EPA has interpreted the current regulations as not triggering section 265.445(c) for generator-only drip pad operators.
Therefore, the first sentence of proposed section 262.16(b)(4) should be revised to clarify that 40 CFR 265.445(c) is not applicable to small quantity generator-only drip pad operators.
The first sentence of proposed section 262.16(b)(4) should be revised as follows (new text in bold):
A small quantity generator may accumulate hazardous waste on drip pads for 90 days or less without a permit or without having interim status provided that it complies with 40 CFR part 265 subpart W (except for 265.445(c)). [Footnote 2:
For large quantity generator-only drip pad operators, EPA has already consolidated all of the applicable closure requirements into proposed 262.17(a)(8). As stated in the preamble, First, EPA is proposing to consolidate the closure regulations for LQGs accumulating hazardous waste at § 262.17(a)(8). This consolidation would
include both the general performance requirements found at §§ 265.111 and 265.114 for containers, tanks, drip pads, and containment buildings, and the unit specific requirements found at § 265.197 for tanks, § 265.445 for drip pads, and § 265.1102 for containment buildings.
80 Fed. Reg. 57953 (emphasis added). Therefore, 262.17(a) should be revised to clarify that 40 CFR 265.445 is not applicable to generator-only drip pad operators, as all applicable closure requirements are now listed in 262.17(a)(8). We recommend that the first sentence of proposed section 262.17(a)(3) should be revised as follows (new text in bold):

If the waste is placed on drip pads, the large quantity generator must comply with subpart W of 40 CFR part 265 (except for 265.445)and maintain at the facility the following records by use of inventory logs, monitoring equipment records, or any other effective means...
These changes will clarify the applicable closure requirements for generator-only drip pad operators.

Response: The Agency realizes it made a mistake in drafting the closure requirements for drip pads by including them with the closure requirements for containers, tanks and containment buildings when the requirements are different. The Agency believes it has corrected this mistake by separating out the closure requirements for drip pads and updating closure requirements consistent with the latest guidance. Similarly, SQGs accumulating hazardous waste on drip pads will have 180 days once they have been removed hazardous wastes from the drip pad. SAAs are not included in the closure requirements. 

Section 4.7 - Preparedness and planning
     General Comments

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter supported proposed changes to preparedness, prevention and emergency procedures provided that they can be part of a combined or single plan that typically includes similar type information associated with other EPA regulations as well as regulations from OSHA. (76)
 
Response (76):  Existing regulations include a recommendation that generators base their contingency plans on One Plan guidance and these recommendations remain unchanged in this final rule at 40 CFR 262.261(b).

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter noted that the regulations of Parts 264 and 265 (assumed by EPA relate to prior generator regulations that reference 40 CFR part 265, subparts C and D) anticipated that the descriptions and lists of emergency equipment and materials, for example, would be contained in a permit or interim status documentation  -  noting that this also applies to training, inspections, etc. This commenter also noted that, although generators do not prepare permit applications, current standards require them to maintain something very similar in order to document the required preparedness and response measures. This commenter believed this is more burdensome than often necessary, further adding that generator inspections often devolve into extensive document requests, detailed review of these documents and citations of violations based on procedural requirements of these regulations that are frequently not directly relevant to the hazards associated with 90-day waste accumulation (CAAs). This commenter also asserted that such violations are often found at facilities where a field inspection indicated safe and compliant management of waste in accumulation. The commenter recommends that EPA clarify contingency planning and emergency preparedness requirements in the context of generator accumulation rather than continue to enforce the same generalized standards imposed on commercial storage facilities. (78)

Response (78):  EPA believes that the final preamble and regulations sufficiently clarify contingency planning and emergency preparedness requirements but do so in the context of not accumulation of hazardous waste at CAAs but also SAAs and associated points of hazardous waste generation.

Comment:  Besides providing other feedback on EPA's proposed rulemaking, three commenters noted that none of the three chemical accidents cited by EPA in the proposed rule preamble involved hazardous waste and suggested the agency examine accidents involving hazardous wastes to justify the proposed modifications for enhancing emergency preparedness regulations.  Specifically, these commenters stated that the quantity of hazardous waste at a facility is usually a small fraction of the overall inventory of hazardous materials, the latter of which the Agency presumes to represent non-hazardous wastes. These commenters also indicated that additional or expanded requirements regarding hazardous waste will not enhance emergency preparedness. (99, 173; 242)

Response (99, 173; 242):  The incidents cited by EPA in the proposed rule preamble were simply meant to illustrate the need for continued improvement in a number of areas related to facility safety, irrespective of whether an emergency situation involves hazardous wastes, non-hazardous waste, or other chemicals/substances. EPA believes that modification of regulations, as set forth in this final rule will enhance emergency preparedness.

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, a commenter mentioned one of the three chemical accidents cited by EPA in the proposed rule  -  specifically the West, TX incident  -  noting that, in response to this incident, all of its member companies handling ammonium nitrate reached out to local responders to provide necessary information for responding to an emergency involving this chemical (126/188).

Response (126/188):  EPA appreciates the additional insight provided by the commenter and notes that ammonium nitrate, if discarded, would be a hazardous waste under RCRA due to the reactivity characteristic.

Comment:  Besides providing another comment on this proposed rule, a commenter cited examples of two fires at a treatment and storage facility in Eau Claire, WI in 2007 and 2010, with the 2007 fire resulting in explosions that "shot fire more than 400 feet into the air," the evacuation of a half-mile perimeter around the plant and the destruction of several buildings and 15 tanks (206). 

Response (206):  EPA appreciates this information as it provides an example a situation involving hazardous waste that illustrates the need for continued improvement regarding areas related to facility safety.

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, the commenter indicated support for EPA's proposed modifications for both SQGs and LQGs regarding preparedness, prevention and emergency procedures. (134)

Response (134):  EPA concurs with this commenter and believes the final rule will enhance emergency planning and preparedness. 

Comment:  Although providing other feedback on EPA's proposed rulemaking, the commenter indicated that subpart M (Preparedness, Prevention, and Emergency Procedures for LQG) is not ready yet for final rulemaking and should be deferred for adequate consideration. (156)
Response (156):  EPA disagrees with this commenter and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness. 

Comment:  A commenter indicated that proposed preparedness planning requirements are not anticipated to significantly impact or burden its facility. (172)

Response (172):  EPA agrees with this commenter and notes that changes made in response to feedback from other commenters have resulted in a final rule that will further reduces impacts/burdens.

Comment:  In addition to providing more detailed feedback on EPA's proposed rulemaking, this commenter supported EPA's proposed improvements to the requirements for SQGs and LQGs regarding preparedness, prevention and emergency procedures. These improvements included: (1) clarifying which areas of a generator's site these requirements apply to; (2) clarifying and updating the procedures for making emergency arrangements with local officials and documenting those arrangements; (3) creation of a new requirement for LQGs to create an "executive summary" of their hazardous waste contingency plan that would be more amenable for use by emergency responders during an actual emergency; (4) eliminating the need for LQGs to include personal information about emergency coordinators in their hazardous waste contingency plan provided that the emergency coordinator can be reached at a l times via an emergency contact number; (5) clarifying where required emergency and safety equipment must be kept; (6) clarifying what is meant by "immediate access to an internal alarm or emergency communication device" for personnel involved in hazardous waste management activities; (7) clarifying where SQGs must post the required emergency information within their facilities and (8) clarifying that SQGs may use contractors to clean up spills. (178)

Response (178):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness. 

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter supports the proposed modifications for both SQGs and LQGs regarding preparedness, prevention and emergency procedures as these enhancements will ensure generators are better prepared to handle an emergency and successfully coordinate those efforts with the LEPC and/or local fire department. (181)

Response (181):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness. 

Comment:  Although providing other feedback on EPA's proposed rulemaking, the commenter indicated that EPA's proposals are fundamentally unworkable to a large degree as some conflict with the provisions of existing State statutes regarding emergency management and many will conflict with the provisions of fire codes adopted by local jurisdictions, while others simply don't reflect the reality of modern relationships between local emergency planning committees, first responders and emergency management. The commenter opposed these changes and recommended that they be abandoned. (191)

Response (191):  EPA disagrees with this commenter and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness. 

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter agreed with incorporating preparedness and prevention requirements into 40 CFR 262.16 section for SQGs and 40 CFR part 262 subpart M for LQGs and believed that incorporating these requirements in one area within the federal regulations adds clarity and assists the regulated community. (195)

Response (195):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness. 

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter believed that EPA's proposed rule supports the safety of communities surrounding hazardous waste facilities and notes that proposed changes will impose a slight impact to facilities under its jurisdiction  -  primarily associated with developing an executive summary and requiring arrangements with the local authorities regarding emergency procedures. (206)

Response (206):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness. 

Comment:  A commenter supported consolidating the contingency plan requirements for LQGs at 40 CFR part 262, subpart M and for SQGs at 40 CFR part 262.16. Although this commenter agreed that the new requirements for SQGs are important and will improve safety in the event of an emergency, they felt that the burden on SQGs, which are normally small businesses such as dry cleaners and auto repair shops, would be significant (248).

Response (248):  EPA believes that revisions to existing regulations, as reflected in the final rule, including modifications to making and documenting arrangements with local emergency responders, will not be unnecessarily burdensome to SQGs. 

Comment:  The commenter indicated that it does not support any new SQG requirements in this area and takes no position with respect to new LQG requirements. (253)

Response (253):  EPA disagrees with this commenter and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness for not just SQGs but also LQGs.

b.   Use of "site" versus "facility"

Comment:  One commenter questioned the substitution of the term "site" for "facility" in proposed section 262.264 since emergency coordinators should not be required to be familiar with all "operations and activities at the site" or "the location of all records within the site"  -  adding that such familiarity should only extend to 90-day accumulation areas (CAAs) for which emergency coordinators are responsible. The commenter suggested rewording this requirement accordingly (78).

Response (78):  EPA has replaced the term "site" with "facility" in the final rule. Additionally, EPA has revised section 262.264 to reflect the fact that emergency coordinator responsibilities may vary depending upon the type/variety of hazardous wastes, as well as the type/complexity of the facility.  Existing regulations, as well as proposed regulations at 40 CFR 262.261(d), 40 CFR 262.263(e) and 40 CFR 262.264, allow for more than one emergency coordinator at a facility. Therefore, it would be possible to assign duties to multiple individuals serving in the emergency coordinator role. Please note that, as discussed elsewhere by EPA, emergency coordinator duties would, in addition to CAAs, involve SAAs and associated points of hazardous waste generation.

Comment:  A commenter mentioned existing 40 CFR 260.10 definitions of "facility" and "generator" in terms of asking several questions. These questions involved the differences between a site and facility, whether more than one site can exist at a facility, the presence of different generators and the boundary of a site or facility. The commenter also asked how the definition of site or facility falls within the generator exclusions from the definition of solid waste in cases where hazardous waste is also generated at the facility/site.  Finally, the commenter asked whether a "site becomes a facility if it has a solvent still." (214)
 
Response (214 EPA did not propose any changes to the definitions of "facility" or "generator," therefore these comments are beyond the scope of this rulemaking.  Moreover, EPA has decided not to replace "facility" with "site" in the regulations. Finally, EPA notes that these types of issues raised by the commenter are often determined on a fact-specific basis.

Comment:  This commenter also stated that the proposed rule preamble discusses the definition of "site" versus "facility," although proposed changes to 40 CFR 260.10 and 40 CFR 262.1 did not define the term "site." This commenter also noted that he language EPA is proposing to change currently appears in 40 CFR part 265, subparts C and D, which specifically refers to "facilities" as opposed to "sites." (214)

Response (214):  As stated elsewhere in EPA's responses to other commenters, EPA has replaced the term "site" with "facility" in the final rule.

Comment:  One commenter noted that, in certain sections, the term "facility" has been either deleted in the proposed regulations (e.g. 40 CFR 262.253) or replaced with "site" (especially key in 40 CFR 262.261, 262.263, and 262.265) or "generator's premises" (e.g. 40 CFR 262.264). The commenter stated that the term "facility" has a specific meaning in RCRA, while the term "site" or "premises" does not.  This commenter also stated that deletion of the term "facility" and it with an undefined term (or nothing at all) fails to specifically restrict the regulated emergency equipment, records or personnel to RCRA-related activities and adds further unwarranted uncertainty to the extent of facility regulation.  The commenter recommends that the term "facility" should be reinstated wherever it has been supplanted or removed (263).

Response (263):  As stated elsewhere in EPA's responses to other commenters, EPA has replaced the term "site" with "facility" in the final rule. Although the term "premises" remains, the Agency notes that the term "facility" now replaces the term "site" in the parenthetical that follows. 

Comment:  The same commenter stated that, in proposed 40 CFR 262.265(i), the terms "owner/operator" and "facility" have been replaced by "generator." The commenter further states that the terms "owner" and "operator" are defined in 40 CFR 260.10 as being tied to the "facility," while the term "generator," as defined, is not. The commenter believed that the new terms, lacking specific definitions, are open to interpretation, whereas generators understand clearly what is meant by "owner/operator" and "facility" based upon their existing definitions. Mentioning certainty and clarity in regulatory requirements, the commenter suggested that the defined terms should be retained and the new terms deleted. (263)

Response (263):  As previously indicated, EPA has replaced "site" with "facility." Regarding the commenter's preferred used of the term "owner/operator," EPA notes that the term "generator" is defined at 40 CFR 260.10.  The Agency has replaced this "owner/operator" with either "small quantity generator" or "large quantity generator" throughout the final rule and believes this will not cause undo confusion on the part of the regulated community.

Response (overall):  As a result of comments received, EPA has reconsidered its proposal to replace the word "facility" with the word "site" in emergency preparedness and prevention regulations.  The Agency has decided not to change existing regulations; consequently, the Agency is replacing the word "site" where it appeared in this context in the proposal with the word "facility" throughout final rule language. EPA believes use of the word "facility" in these regulations would also be more consistent with the word "facility" used and defined in EPCRA emergency planning and notification regulations at 40 CFR part 355, as well as in Spill Prevention, Control and Countermeasures (SPCC) plan regulations at 40 CFR part 112.

Section 4.7.1 - Scope of RCRA preparedness and planning regulations
Comment:  A commenter noted that, as discussed by EPA in the preamble, although subpart M is intended to apply only to the accumulation areas for the LQG, the word "site" is used to describe the regulated entity. This commenter further notes preamble discussion that that a contingency plan is likely to include much more than the portions applicable to the waste accumulation areas under the National Response Team "One Plan" guidance. This commenter adds that a local agency is also likely to wish to consider all aspects of the generator's site  -  not just those involving hazardous waste  -  for emergency planning purposes. The commenter believed that, for the proposed regulation to be properly tuned for scope under RCRA, it needs to be revised to clarify that the requirement only applies to the waste accumulation areas at the generator's site and not the entire "site." (78)

Response (78):  The final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation. EPA recognizes that there are other portions of a facility where chemicals/substances other than hazardous wastes are managed.  This is addressed in the discussion of the contingency plan at 40 CFR 262.261(b), which mentions the "One Plan" guidance.

Comment:  A commenter believed that the requirements of proposed section §262.261(e) are unnecessarily burdensome with regard to "all emergency equipment at the site" and suggested the listing of emergency equipment be limited to the 90-day accumulation area (CAA) in order to recognize that the generator "may determine the most appropriate locations" for this equipment per proposed §262.252. (78)

Response (78):  EPA makes it clear in the final rule preamble and the rule itself that this requirement applies to all portions of a facility (this term replaces "site" in the final rule) where hazardous waste is managed under RCRA, which includes CAAs, SAAs and associated points of generation. The Agency adds in the preamble that "allowable treatment," though not defined in the regulations, is covered as part of the overall hazardous waste accumulation and management process within a facility and will continue to be addressed at generator facilities within the framework of existing guidance.  While it is true that section 262.252 allows the generator flexibility in determining appropriate locations of emergency preparedness and response equipment, this flexibility must still take into account all portions of a facility where hazardous waste is generated and accumulated, as well as where allowable treatment occurs.

Comment:  The commenter agrees with the proposal to make it explicit in the regulations that the preparedness, prevention, and emergency procedures regulations apply only to those areas at a facility where hazardous waste is managed. (85)

Response (85):  Consistent with the final preamble and regulatory text, EPA notes that the term "managed" includes CAAs, SAAs and associated points of hazardous waste generation within a facility.

Comment:  This commenter agreed with EPA's proposal to make it explicit in the regulations that the preparedness, prevention, and emergency procedures regulations apply only to those areas of the generator's site where hazardous waste is accumulated, and where applicable, those areas where allowable treatment may occur in accumulation areas. However, the commenter does not agree that EPA should include the word "generated" in this explicit statement, believing that the regulations, as currently written, refer generators accumulating waste in 90-day accumulation areas (CAAs) to preparedness and prevention and contingency plan and emergency procedures but that regulations on SAAs do not refer generators to Preparedness and Prevention provisions. The commenter believed EPA is proposing to expand provisions to all SAAs, as well as CAAs, by applying regulations to those areas of the generator's site where hazardous waste is generated. The commenter viewed this as an undue burden upon hazardous waste generators. (92)

Response (92):  EPA disagrees with this commenter. The final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation. EPA believes this modification is beneficial and will not pose an undue burden to generators.  

Comment:  A commenter disagreed with the wording of proposed section 262.261(e) since the requirement for the contingency plan to include a list of all emergency equipment at a site could be construed to include the entire site, which the commenter believes EPA did not intend to imply. The commenter suggests regulations be revised to state that the contingency plan include all necessary equipment available for the 90-day accumulation area (CAA). (92)

Response (92):  The commenter appears to be asserting that proposed requirement regarding emergency equipment should apply only to CAAs, as opposed to the entire site (now termed "facility" in the final rule). EPA makes it clear in the final rule preamble and the rule itself that this requirement applies to those portions of a facility where hazardous waste is generated and accumulated. In doing so, the Agency, notes that there may exist multiple points of generation and associated SAAs at a facility from which hazardous wastes are routinely moved to CAAs; hence, the potential exists for spills during the accumulation and management process. The Agency adds in the preamble that "allowable treatment," though not defined in the regulations, is covered as part of the overall hazardous waste accumulation and management process within a facility and will continue to be addressed at generator facilities within the framework of existing guidance. EPA also notes that this requirement would only apply to areas of a facility where hazardous wastes are managed under RCRA and, as such, would not encompass other areas of a generator facility where chemicals and substances other than hazardous wastes are managed.

Comment:  This commenter found proposed Subpart M confusing as it is unclear that the phrase "where hazardous waste is generated or accumulated on site in accordance with the conditions in 262.17" is meant to constrain these requirements to those areas where waste is subject to the 90 day requirement (e.g., CAAs). (97)

Response (97):  This confusion has been addressed since 40 CFR 262.250 no longer cross-references 40 CFR 262.17 (LQG personnel training) in the final rule based on comments received; in other words, training requirements are codified only for CAAs.

Comment:  Two commenters expressed concern with EPA's proposal to expand the preparedness, prevention, and emergency procedures for LQGs to include areas where the waste is generated, noting that this is a substantial expansion of these requirements since the current regulations for LQGs only apply to CAAs. These commenters believed EPA's proposal is unnecessary and problematic because:  (1) there can be many points of generation in process areas and equipment within a facility; (2) it is impractical and unnecessary to supply emergency response type equipment for each and every one of these locations; (3) it is uncertain how the required aisle space would work within process areas and equipment; (4) it is unclear how implementation of the contingency plan would work in a process area, especially as it relates to spills and (5) there is potential overlap with numerous other federal requirements, including those administered by the Occupational Safety and Health Administration, the Mine Safety and Health Administration, and the EPA under the Emergency Planning and Community Right-to-Know Act. These commenters urged EPA to reconsider the Agency's proposal in light of the issues identified. (117,200)

Response (117, 200):  EPA disagrees with these commenters and believes including SAAs and associated points of hazardous waste generation, in addition to CAAs, within preparedness and planning regulations is beneficial. Regarding "overlap" with other federal requirements, 40 CFR 262.261(b), which mentions the "One Plan" guidance, is intended to address portions of a facility where chemicals/substances other than hazardous wastes are managed.

Comment:  Two commenters were supportive of EPA's overall objective of rewriting some of the regulations to add greater clarity but suggested the Agency specifically state that these provisions do not apply to SAAs or add clarifying language that the provisions are specific to CAAs. (121, 183)

Response (121, 183):  EPA disagrees with these commenters. The final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment:  A commenter requested the addition of text to specify that requirements are limited to operations that generate hazardous waste because only generator activities that result in the generation of hazardous waste are subject to Subtitle C regulation. This commenter also requested the addition of text to specify that contingency plans are only needed for accumulation areas and not the entire LQG site. (123)

Response (123):  EPA agrees with the commenter that generator activities are subject to Subtitle C but believes contingency plans should address RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation and notes that preamble and regulatory text in the final rule clarify this point.

Comment: A commenter supported the proposal to clarify that contingency plans would only have to address those areas within an LQG facility where hazardous wastes are generated and/or managed. (126/188)

Response (126/181):  EPA agrees with this commenter. Final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment: A commenter supported EPA's clarification that the emergency planning and procedures apply only to the areas of a generator's site where hazardous wastes are generated, accumulated and treated. (159)

Response (159):  EPA agrees with this commenter and notes that this point is made clear in the preamble and regulatory text for the final rule.

Comment:  A commenter noted that the proposed regulations suggest that regulations for preparedness/prevention, contingency planning and emergency procedures apply to those areas of a generator's site where hazardous waste is generated and accumulated, which appears contrary to previous EPA guidance, which included only CAAs. The commenter noted that many of the wastes at a generator's site are generated within SAAs. The commenter suggested that proposed regulations should specifically indicate that the contingency planning and emergency procedures are only applicable to CAAs and not to every SAA on site. The commenter noted that large universities can have more than one thousand individual SAAs throughout their campuses and that the expectation to include all of these areas in contingency planning and emergency procedures would result in maintaining detailed information such as evacuation plans for over 50 individual buildings on a single campus. The commenter further noted that emergency response and prevention is covered under existing standards such as the OSHA Laboratory Standard, Emergency Action Plans. The commenter suggested that requirements for preparedness/prevention, contingency planning and emergency procedures should remain consistent with previous EPA guidance. (187)

Response (187):  Although EPA is aware of previous Agency guidance and understands that numerous SAAs may exists at certain facilities; nevertheless, we believe that preparedness and planning regulations should be expanded to include CAAs, SAAs and associated points of hazardous waste generation.

Comment:  The commenter believed it is inefficient and unrealistic for EPA to suggest that effective emergency planning is only necessary for the hazardous waste generation and storage portions of a facility since it is not unusual for other chemical handling and storage portions of a facility to present much greater risks to the community and first responders. The commenter added that limited application of this proposal renders actions to be taken under the proposal worthless to LEPCs and first responders attempting to assess the risk of the entire facility. The commenter believes that EPA should require integrated contingency planning for the entire facility operated by LQGs. (191)

Response (191):  EPA agrees with the commenter. CAAs, SAAs and associated points of hazardous waste generation are being included within preparedness and planning regulations; moreover, 40 CFR 262.261(b), in particular the reference to "One Plan" guidance, is intended to address portions of a facility where chemicals/substances other than hazardous wastes are managed.

Comment 192:  The commenter supports the clarification that the preparedness, contingency planning, and emergency procedure requirements for LQGs apply only to those areas of the facility where hazardous waste is generated and accumulated. The commenter added that these requirements are supplemental to the requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Risk Management Program (RMP) rule and that EPA should not extend duplication any farther than necessary. (192)

Response (192):  EPA agrees with the commenter. CAAs, SAAs and associated points of hazardous waste generation are being included within preparedness and planning regulations; moreover, 40 CFR 262.261(b), in particular the reference to "One Plan" guidance, is intended to address portions of a facility where chemicals/substances other than hazardous wastes are managed.  We believe that this will ensure unnecessary duplication of effort.

Commenter 214:  This commenter stated that, while including areas where hazardous waste is generated may be a good idea, it will increase the contingency planning burden and appears to be contrary to specific preamble language in the original satellite accumulation regulation (December 20, 1984 final rule at 49 FR 49570) and existing EPA guidance (RO 14758). (214) 

Response (214):  Although EPA is aware of the previous SAA regulation and Agency guidance, we believe that preparedness and planning regulations should be expanded to include CAAs, SAAs and associated points of hazardous waste generation.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one of its members agrees with EPA's proposed changes to clarify the applicability of the contingency planning and emergency procedures to hazardous waste accumulation areas.  Another member disagreed with the proposal to explicitly state that RCRA preparedness and emergency procedures regulations are limited strictly to areas where hazardous waste is generated and accumulated since emergencies can occur at places other than hazardous waste generation and accumulation areas. (217)

Response (217):  EPA notes that CAAs, SAAs and associated points of hazardous waste generation are being included within preparedness and planning regulations and adds that, consistent with 40 CFR 262.261(b) and references to "One Plan" guidance, portions of a facility where chemicals/substances other than hazardous wastes are managed can also be addressed.

Comment:  The commenter supported the clarification that the preparedness, prevention and emergency procedures apply only to areas where hazardous wastes are managed but notes that use of the phrase "generated or accumulated on site" in the proposal may be misinterpreted as including SAAs.  The commenter suggested that EPA make it clear these requirements do not apply to SAAs. (219)

Response (219):  Consistent with the final preamble and regulatory text, EPA notes that the term "generated and accumulated" is, in fact, intended to apply to not just CAAs but also SAAs and associated points of hazardous waste generation.

Comment:  The commenter supported this proposal as it would reduce the burden on facilities, especially large operations where hazardous waste may only be generated or handled in small specific areas, adding that limiting the application of RCRA preparedness, contingency planning, and emergency procedures to only areas generating hazardous waste will be helpful. (220)

Response (220):  EPA agrees with the commenter. The final preamble and regulatory text make it clear that preparedness and planning requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment: This commenter believed focusing on areas where waste is being either generated or accumulated and requiring emergency response equipment at each of these locations is impractical and unnecessary, noting that, within a manufacturing facility, there can be many points of generation or accumulation. This commenter added that it is impractical and unnecessary to supply emergency response type equipment for each and every one of these locations; moreover, requiring this equipment at "all areas" of generation or accumulation is at odds with the language that the "generator may determine the most appropriate locations." The noted that for hazardous waste has always been on storage and the requirements for maintaining emergency response equipment have likewise properly focused properly on where these wastes are centrally accumulated  -  and it should remain so. The commenter would like EPA to confirm that preparedness and prevention requirements do not apply to SAAs. (224)

Response (224):  EPA disagrees with this commenter. The Agency believes that preparedness and planning requirements should apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation. Furthermore, we believe that exists no inconsistency with language in the final rule stating that generators (SQGs or LQGs) may determine the most appropriate locations within their facilities to locate equipment necessary to prepare for and respond to emergencies.

Comment:  The commenter supports proposed clarifications to emergency preparedness requirements but does not believe these requirements should only apply to CAAs, noting that hazardous wastes at SAAs present the same risks to the facility as CAAs.  The commenter believed that including hazardous waste at SAAs as part of emergency preparedness requirements would not be a burden to SQGs or LQGs and, since all generators are already required to have emergency equipment on hand for hazardous waste accumulated under standard requirements, ensuring that such equipment is accessible to SAAs is also not a burden and can easily be met by all generators. The commenter suggests EPA clearly state that emergency planning and preparedness requirements apply only to all hazardous waste accumulated at an SQG or LQG. (232/281)

Response (232/281):  EPA agrees with this commenter. Final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment:  The commenter appreciated rulemaking clarification that delimits the scope of the contingency planning and emergency procedures to locations where hazardous waste is generated and accumulated on a site, which is not the entire site. The commenter believed this should be stated explicitly because there exists confusion on this topic. The commenter also supports proposed 40 CFR 262.261(b), which makes it clear that one contingency plan is all that is necessary to meet OSHA, RCRA CAA RMP, PPHMSA, CFATS and/or any other emergency response plan requirements.  The commenter added that duplication of plans or maintaining separate plans "by statute or media" have a huge potential to create confusion during an emergency, noting there is no evidence that "duplicative planning efforts" ensure a "coordinated emergency planning effort." (240)

Response (240):  EPA agrees with the commenter and believes that the final rule preamble and regulatory text satisfactorily address the commenter's concern regarding unnecessary duplication of effort.

Comment:  A commenter supported clarifying that the contingency plan must only address areas where hazardous waste is generated and accumulated. (248)

Response (248):  EPA agrees with this commenter. Final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment:  A commenter stated that, although EPA is proposing that preparedness/prevention/emergency procedures provisions for both SQGs and LQGs "...apply only to those areas of a generator's site where hazardous waste is generated and accumulated and...to those areas where allowable treatment may occur in accumulation units.," the proposed regulations themselves don't unequivocally state this, particularly for SQGs. The commenter cited an example where a SQG with a CAA would be required to comply with 40 CFR 262.16, which requires that "all conditions...listed in this section are met" and that one of those requirements is 40 CFR 262.16(b)(8) entitled "preparedness and prevention," which states that "a small quantity generator must maintain and operate its site to minimize the possibility of a fire, explosion or any unplanned sudden or non-sudden release of hazardous waste..." Since the site encompasses areas other than where hazardous waste is generated and accumulated, the believed that language needs to be amended. The commenter cited another example where only SAAs exist at an SGQ. The commenter notes that, since there is no regulatory definition of "accumulation," "accumulation" could be interpreted to include both CAAs and SAAs; therefore, it could be interpreted that not only 40 CFR 262.15 applies to this generator but also 40 CFR 262.16, since 40 CFR 262.16 says that an SQG "may accumulate hazardous waste on-site...provided all the conditions...in this section are met...," which includes the preparedness and prevention" requirements. The commenter added that proponents of this interpretation might argue that such an interpretation is supported by the fact that all SQGs must comply with the LDRs and that the only place in 40 CFR part 262 where this LDR compliance requirement is explicitly stated is directly above 40 CFR 262.16(b)(8) at 40 CFR 261.16(b)(7). The commenter indicated the possibility that a question may be posed as to where the regulations state that (b)(7) applies to such an SQG but (b)(8) does not. (271)

Response (271):  EPA disagrees with the commenter. Final rule preamble and regulatory text clearly indicate how requirements apply to SQGs under both of the scenarios illustrated by the commenter such that a clear reading of these requirements should not result in any confusion on the part of generators regarding the requirements with which they must comply. 

Comment:  The commenter observed that 40 CFR 262.250 states that regulations in subpart M apply to an LQG's site where hazardous waste is accumulated under 40 CFR 262.17 and where hazardous waste is generated.  This commenter asked whether subpart M would apply in cases where a hazardous waste stream exits a production unit and is immediately drained into a container at an SAA, while also noting that, since SAA containers will be regulated under 40 CFR 262.15 and not under 40 CFR 262.17, they would not be subject to 40 CFR 262.250. An example provided involved a jug receiving waste draining directly from an HPLC chromatograph instrument. The commenter interpreted text in 40 CFR 262.250 ("The regulations of this subpart apply to those areas of a large quantity generator where hazardous waste is generated or accumulated on site...") as indicating that subpart M applies to generation areas of an LQG site. If so, then the commenter believed that it was inconsistent to have preparedness, prevention and emergency procedures apply to generation areas and to CAAs but not to SAAs, noting that subpart M requirements should not apply to the generation area if EPA does not believe they are needed for SAAs. (278)

Response (278):  EPA agrees with the commenter's statements regarding scope of preparedness and planning requirements and notes that the final preamble and regulatory text make it clear how requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation, including subpart M in the case of LQGs.  EPA also notes that 40 CFR 262.250 no longer cross-references 40 CFR 262.17 (LQG personnel training) in the final rule, based on comments received; in other words, training requirements are codified only for CAAs. Regarding the question about a jug receiving waste draining directly from an HPLC chromatograph instrument at an SAA, EPA would view this scenario no differently than any other situation where hazardous wastes is generated at/near the point of generation. The same requirements would apply both here at the SAA and then subsequently at a CAA.
 
Response (overall):  Although the primary objective of these changes was to ensure that preparedness and planning regulations under RCRA did not apply to the entire facility, EPA received several comments on whether SAAs and points of generation should or should not be included within the scope of preparedness and planning regulations. Notwithstanding existing guidance, EPA believes there are benefits to addressing areas besides CAAs. Throughout a facility, there may be many points of generation and associated SAAs from which hazardous wastes are routinely moved to CAAs; therefore, the potential for spills exists during the accumulation and management process. For this reason, EPA has determined it is appropriate to address these additional areas, consistent with the objectives of EO 13650, in order to ensure protection of human health and the environment, as part of preparedness and planning regulations. With respect to allowable treatment, EPA believes that locations of such treatment would be covered as part of the overall accumulation and management process within a facility. Although EPA is not specifically defining allowable treatment in the regulations, the Agency has determined at this time to continue to address allowable treatment at generator facilities within the framework of existing guidance. EPA is, therefore, finalizing regulations making it clear that points of generation and SAAs, in addition to CAAs, fall within the scope of regulations for preparedness and planning in § 262.16(b)(8) for SQGs and 40 CFR part 262 subpart M for LQGs. This includes adding clarifying language in § 262.15(a)(7) and (8) regarding the conditions for exemption for both SQGs and LQGs that specifically relate to SAAs.

Section 4.7.2 - Adding LEPCs to regulations
     General Comments

Comment:  A commenter recommended EPA not require generators to place documentation of prior arrangements with LEPCs or other local agencies within their contingency plans, adding that these plans, if they are to be utilized by the emergency coordinator, should not include information that would not be consulted during an actual emergency. The commenter suggested making this information a recordkeeping requirement outside of the contingency plan itself or, alternatively, as part of an "annex" (attachment) to the contingency plan, as suggested in "One Plan" guidance. (78)

Response (78):  It is correct that a description of arrangements with local authorities (fire departments, police departments, etc.) already exists under current regulations insofar as contingency plan content is concerned; therefore, section 262.261(c) imposes no new requirements. EPA notes in the preamble and final rule language that arrangements may be made with an LEPC if it is determined to be the appropriate organization with which to make such arrangements. In developing these regulations, it was not the Agency's intent to require that LQGs submit duplicate information. For this reason, our final rule language at 40 CFR 262.256(b), as well as 40 CFR 262.16(b)(8)(vi)(B) for SQGs, is crafted so as to recognize that there are various means of confirming that arrangements actively exist (or were sought but were unable to be made) and to accord flexibility regarding where such documentation can be retained. We have modified preamble language in Section XI.C.2 to read "...EPA is revising proposed language to insert the phrase `in the operating record,' which would include the contingency plan, to provide additional flexibility regarding where such documentation can be retained." Additionally, EPA notes that preparation and use of a quick reference guide (this term has replaced "executive summary" in the proposed rule) under 40 CFR 262.262(b) is intended to allow more effective response to an incident at a facility.

Comment:  One commenter indicated that, while the LEPC may be receptive to receiving copies of contingency plans, this remains to be seen and that, in the commenter's experience, local fire/police departments and hospitals are not interested in receiving copies of these plans. The commenter strongly recommend that EPA consult with local agencies nationwide before continuing to make contingency plan submission a mandatory requirement. (78) 

Response (78):  EPA did not propose any changes to the existing requirement that LQGs submit a contingency plan and continues to believe that submission of this document should remain a requirement. The Agency also notes that the majority of commenters believed that local emergency responders, such as fire/police departments and hospitals, should serve as the initial point-of-contact in terms of making arrangements under section 262.256, as opposed to LEPCs. Therefore, in addition to section 262.256, EPA has revised section 262.262(a) accordingly, while still allowing facilities the option to also involve LEPCs.

Comment:  In terms of proposed §262.16(b)(8)(vi)(A) describing how a SQG should make emergency arrangements if the Local Emergency Planning Committee ("LEPC") should "not respond," a commenter believed the phrase "not respond" does not make sense with the removal of the "attempt to make arrangements" language from this section. As a result, the commenter suggested that the phrase "not respond" should be replaced with "not respond to inquiries from the generator" (or similar wording) to clarify what the LEPC is not responding to (178).

Response (178):  Proposed 40 CFR 262.16(b)(8)(vi)(A), including paragraphs (A)(1) through (2), as well as 40 CFR 262.16(b)(8)(vi)(B), have been revised extensively in response to comments received such that language in the final rule addresses this commenter's concern.

Comment:  A commenter noted that EPA removed the words "as appropriate" from proposed §262.256(a) prior to the words "for the types and quantities of hazardous waste handled at the site" and inquired as to whether EPA intended to remove these two words.  The commenter further noted that these words appear in existing regulations at 40 CFR 265.37 and in the parallel language for SQGs in proposed §262.16(b)(8)(vi)(A). Therefore, the commenter believed that the words "as appropriate" should be reinserted into this section as this would make the sentence more readable and understandable by clarifying the purpose and intent of the required arrangements (178).

Response (178):  It was EPA's intent to remove the term "as appropriate," which appears in existing regulations (i.e., 40 CFR 265.37)  -  although not in proposed 40 CFR 262.16(b)(8)(vi)(A). Instead, the Agency included, in the proposal and final rule, the phrase "taking into account the types and quantities of hazardous waste handled at the facility" for both SQGs and LQGs at 40 CFR 262.16(b)(8)(vi)(A) and 40 CFR 262.256(a), respectively, to accomplish the same objective suggested by the commenter. EPA disagrees with the commenter that "as appropriate" is more readable and understandable. 

Comment:  A commenter noted that the language in proposed §262.256(c) and §262.262(b) are inconsistent; specifically, the former section uses the phrase "local fire departments and other relevant emergency responders (e.g., police and hospitals)" whereas the latter section simply states "local emergency responders". The commenter believed that the former language should be used in both sections in order to clearly specify the emergency responders to which an LQG must send a copy of its contingency plan and the executive summary of its contingency plan (178).

Response (178):  Rather than 40 CFR 262.256(c), which did not exist in the proposed rule, EPA assumes that the commenter is actually referring to proposed 40 CFR 262.256(a), which includes the phrase "local fire departments and other relevant emergency responders (e.g., police and hospitals)" when discussing arrangements with local authorities. It is true that discussions regarding submission of a copy of the contingency plan executive summary (this term has been replaced by "quick reference guide" in the final rule) in proposed 40 CFR 262.262(b) simply mention "local emergency responders." Proposed 40 CFR 262.256(a) has been revised extensively in response to comments received such that language in the final rule is consistent with final language at 40 CFR 262.262(b), the latter of which was also revised extensively in response to comments received.

    Identifying local emergency planning committees as the primary contact [as opposed to other local authorities]
   
Comment:  This commenter did not think it necessary to establish a formal agreement with the LEPC for other than LQGs for accumulation units as this type of information is normally addressed by other compliance requirements with respect to the local serving fire department. (76)

Comment:  This commenter believed the requirement for SQGs to make independent emergency response arrangements with the LEPC and/or local emergency response providers is excessive, as there are likely to be numerous small and large quantity generators in most LEPC jurisdictions. (78)

Comment:  Regarding making arrangements with the LEPC, the commenter stated that, while it agreed for the most part with this proposal, it did not believe that LEPCs should be mandated as the first point of contact. In support of this belief, the commenter cited issues such as accessibility in remote areas or lack of existence, adding that, if LEPCs do exist, they are not always in contact with the local fire department. The commenter felt that local fire departments should be the first point of contact and that regularly scheduled fire inspections at facilities should be sufficient for making arrangements with the local emergency responders. The commenter added that, if there is no fire department servicing the area of a facility, then the facility should be required to make other arrangements for emergency response and that this could include an internal emergency team. (85)

Comment:  This commenter suggested that EPA should continue providing generators with flexibility currently allowed to make decisions regarding levels of involvement of LEPCs, noting that the Agency's proposal removes existing flexibility, which envisions different needs for the wastes handled on site. To this end, the commenter noted that the wide variety of wastes handled by certain facilities warrants different levels of involvement by LEPC and that EPA appears to be removing that flexibility. The commenter suggested that EPA should continue providing generators with the flexibility currently allowed to make decisions regarding how to satisfy this requirement, especially since RCRA TSD facilities are still afforded this flexibility. (93)

Comment:  This commenter believed that EPA's proposal to require generators to first attempt to enter into a formal agreement with their LEPC before using alternative means to satisfy the requirement to make arrangements with emergency responders is just not practical, noting that LEPCs are staffed with volunteers and have no federal or state funding to accommodate such an agreement. (98)

Comment:  These commenter stated that providing separate planning to an LEPC for hazardous waste appears redundant and may dilute proper local planning with unnecessary information and that EPA should consult with LEPCs regarding the need for this information before imposing it upon them. (99, 230)

Comment:  The commenter noted that EPCRA already sets a range of requirements for LEPCs that involve generator facilities and that many generators have existing relationships with their LEPCs. The commenter further noted that, by stating that such relationships satisfy generator obligations under RCRA, the rule will eliminate inconsistencies and information gaps that can hamper an LEPC's effectiveness. (107)

Comment:  This commenter supports clarification in the proposed rule that an "SQG and an LQG must attempt to make formal arrangements within its Local Emergency Planning Committee (LEPC) unless there is no LEPC, the LEPC does not respond, or the LEPC determines that it is not the appropriate organization to make an arrangement with, and then, the SQG and the LQG should attempt to make arrangements with the local fire department and other relevant emergency responders, such as police and hospitals." (113)

Comment:  This commenter opposed the proposal to require an SQG or an LQG to enter into arrangements with its LEPC.  This commenter's experience is that most LEPCs view working with facilities not within the scope of EPCRA as outside the scope of their authority, technical capabilities or interest. The commenter also noted that LEPCs do not exist in certain areas and that, even in those areas that do have an LEPC, it is the commenter's belief that local fire departments, police department and hospitals will be the relevant first responders and that coordination will occur between these entities at the time of an emergency  -  not LEPCs. The commenter further added that, based on its experiences, the premise of LEPC's working with local responders to integrate the activities of SQGs and LQGs into the overall emergency response plan does not hold true and that many generators who voluntarily submit plans to LEPCs later find that there has been little coordination or sharing of information between LEPCs and other first responders.  The commenter believed that, while the LEPC proposal is well intended in the wake of recent catastrophic chemical accidents and fires, LEPCs may not be the appropriate primary point of contact. (145)

Commenter 147:  This commenter took very strong exception to the order in the new proposed regulations identifying LEPCs as a first contact, noting that its LEPC is a very active organization with many representatives from City and County government and many other organizations but that all officers of the LEPC serve on a voluntary basis and rotate every two years. This commenter also noted that, since the LEPC has no staff to accomplish what the proposed regulations require, it would still fall back to the same staff within the fire department and emergency management agency to accomplish the planning. The commenter believes this is an unnecessary change and suggests changing the order of contact in the new proposed regulations to maintain the same order as now. (147)

Comment:  The commenter noted that, while some LEPCs have hazardous material emergency response equipment and personnel at their disposal (i.e., fire departments and hazmat teams), many times these responders are only available as first responders to stabilize the emergency until contract emergency responders can respond. The commenter also noted that the proposed rule preamble indicates that generators should make arrangements with the LEPC but omits the concept of contracting with contract emergency responders. The commenter believed that generators should be made aware that not all areas of the United States are served by LEPCs or fire departments who can or will respond to hazmat emergencies and that, in such cases, those generators should contract with private emergency response organizations, which the commenter noted are potential entities with which to make arrangements at 40 CFR 262.256(a)(1). (157)

Comment:  This commenter, while advocating the goal of supporting and enhancing State emergency response commissions and LEPCs, questioned the value of requiring generators to first attempt to enter agreements with their LEPC before contacting local emergency responders. The commenter noted that LEPCs typically do not function as emergency responders and tend to be coordinators and clearinghouses for emergency planning information in that emergency response is not typically a part of their mission. Although the commenter admitted that it certainly makes sense to require SQGs and LQGs to supply LEPCs with their current emergency procedures and contingency plan. The commenter did not think it advisable to require generators to first make arrangements with LEPCs prior to contacting local fire departments and emergency responders because local fire and emergency management personnel will most likely be the first responders and will need to have familiarity with the facility, the materials on site, their location and their hazards. The commenter suggested EPA amend this provision to require arrangements be made with local emergency response agencies. (159)

Comment:  The commenter believed that generators should not be required to establish formal agreements with LEPCs and does not support EPA's proposal as it removes all flexibility provided under the current regulation allowing a generator to make arrangements based upon the type of waste handled at the facility and the potential need for services from different local response organizations. The commenter recounted its experience in this regard and stated that to mandate the involvement of an LEPC would not provide any immediate benefit in terms of response coordination for its facilities. (177)

Comment:  A commenter recommended EPA consider involving the LEPCs, if organized and in place, to contact the appropriate emergency service entities based on information received from the generator. (185)

Comment:  This commenter strongly objected to EPA's suggesting a degree of LEPC control over facility operations that does not exist in any other emergency planning program (e.g., Clean Air Act's Risk Management Plan Program), adding that this level of control most certainly does not exist under EPCRA. In the commenter's view, there are typically many facilities in communities that present much greater risks than LQGs; therefore, it is inappropriate to create a program that will divert the limited resources of LEPCs, which are normally volunteer organizations, from higher-hazard facilities. The commenter added that LEPCs are involved in community preparedness rather than directing or controlling emergency response practices and that few LEPCs prepare a plan under the provisions of EPCRA because it would be an unnecessary and inappropriate duplication of effort. The commenter believed it is inappropriate to place requirements on LEPCs and LQGs that are out of step with how communities plan for accidents at other facilities with hazardous materials and did not see any advantage to LEPCs or communities from this proposed change. (191)

Comment: This commenter noted that it currently receives, along with the relevant fire departments, copies of the facility contingency plans under existing State and Federal regulations and that current regulations are quite complementary to its existing EPCRA authority to request information relevant to emergency planning under Section 303(d). (193)
 
Comment:  This commenter cautioned that EPA's proposal to require LQGs and SQGs to contact the LEPC first to make arrangements to coordinate emergency services is not workable for some facilities in the mining sector because of their remote location. The commenter added that, in these instances, facilities are located in areas where only state officials can respond since the LEPC and the nearest local communities do not have an operating fire department  -  thus the requirement to reach out first to LEPCs is not appropriate and is an extra regulatory burden with no benefit for ensuring effective emergency response. The commenter suggested that EPA's proposal should recognize these instances more clearly and not assume that LEPCs are the best emergency response available in a particular community. (200)

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one of its members is neutral on federal changes to require submission of contingency plans to LEPCs rather than fire departments and other emergency responders but does not interpret this change as "more stringent" and would not adopt this change into its rules. From this member's perspective, LEPCs would not be sensible recipients of contingency plans so this responsibility should remain primarily with local fire departments. This member added that LEPCs are not functional bodies in terms of response, they do not have a physical office space in which contingency plans could be stored/accessed and each LEPC covers an entire county. Another member organization disagreed with EPA's proposal to change the preparedness and prevention requirements to state that SQGs and LQGs must first attempt to enter into agreements with their LEPC, noting that LEPCs are generally not the first responders and that agreements should be made with entities that can provide services such as firefighting, spill response, etc. Yet another member organization believed the preference for arrangements with local authorities being coordinated through LEPCs, where applicable, is a step forward in best and consistent management of emergency communications and preparations. This member believed a single point of contact ensures more consistent sharing of information and coordination of local authorities and also significantly lessens the burden on smaller businesses in determining whom to notify. (217)
 
Comment:  This commenter believed EPA's proposed requirement fails to take into consideration those situations where LEPCs may be providing these services under other agreements, such as services provided to taxpayers within an area or when generators have their own emergency response teams (i.e., large and or remote facilities). This commenter added that, in many cases, LEPCs do not agree to provide these types of arrangements and asked whether there will be an EPA policy to strongly encourage LEPCs to make these arrangements. Additionally, the commenter asked whether EPA will now require other emergency responders (e.g., fire, police, and hospitals) to make these arrangements with both LQGs and SQGs. The commenter noted that, in some cases, these emergency responders and hospitals may not agree to these arrangements due to site-specific issues, adding that requiring agreements or official arrangements with LEPCs is duplicative and unnecessary since LEPCs are already required to be given copies of emergency response plans and they are already, in almost every instance, invited to come on-site and take tours of facilities. The commenter believed requiring written agreements is an administrative step without benefit that would create a burden on LEPCs across the country. The commenter encouraged EPA to reach out to municipalities and their LEPCs to get their views on the requirement that generators "must make arrangements" with them and "shall" document this arrangement in something like a certified letter. The commenter also encouraged EPA to consider compromise language that preserves the approach in the current regulations that generators must "attempt" to make arrangements and the approach in the proposed regulations that generators document the refusals and any agreements.  The commenter also believed EPA should recognize that such documentation could be reflected in the facility's contingency plan as opposed to a separate stand-alone document. (224)
 
Comment:  This commenter supported the proposed requirement that SQGs and LQGs must first attempt to make emergency planning arrangements with the LEPC. This commenter added that, where available and willing to work with the SQG/LQG, the LEPC is the generator's most appropriate point of liaison with the emergency response community.  The commenter appreciated EPA's acknowledgement that LEPCs nationwide may be of widely varying viability  -  ranging from active to defunct to nonexistent  -  and that the formation, funding, and operation of LEPCs is driven by requirements outside of RCRA regulations and are beyond the generator's control. (232/281)

Commenter 240:  This commenter asked EPA to reconsider involving LEPCs in the development of a regulated facility's contingency plan. (240)

Comment:  The commenter noted that, as a practical matter, in the event of an emergency, local response agencies would typically be the first to receive notification of an event, often through a "911" system and that, working directly with these local responders (rather than through LEPCs), generators can best assure that appropriate plans are in place for each facility. The commenter notes that proposed regulatory text would actually require generators to establish arrangements with both the LEPC and local responders, adding an extra layer of planning that does not appear to add environmental benefit. For these reasons, the commenter asked EPA to reconsider its proposal requiring facilities to first attempt to work through the LEPC to establish emergency response arrangements and to allow generators to establish plans with either the LEPC or local response agencies (with a copy of the plans submitted to the LEPC) based on need and availability of services. (257)

Comment:  The commenter stated that not all counties have an active LEPC and that many LEPCs do not have a HAZMAT team themselves, adding that to LEPCs as the first point of contact for all LQG facilities across the country, as is proposed, and to require that all LQGs make specific arrangements with predetermined entities is not realistic or appropriate. The commenter suggests that existing regulatory language be retained. (262)

Response (general):  EPA has considered these comments and, in light of the overwhelming opposition, has decided not to finalize proposed references to LEPCs as the primary contact identified at 40 CFR 262.16(b)(8)(vi) and 40 CFR 262.256 for SQGs and LQGs, respectively. 

Section 4.7.3 - Making arrangements with LEPCs
 
Section 4.7.3:  Making ["must make" versus "attempt to make"] arrangements with LEPCs

Comment:  29 commenters disagreed with the requirement for generators to make independent emergency response arrangements with their LEPC and/or emergency responders (76, 78, 89, 97, 113, 120, 126/188, 128, 145, 151, 156, 168, 173, 191, 201, 205, 214, 217, 220, 224, 225, 232/281, 240, 241, 245, 248, 255, 262; 263). Two commenters believed this requirement is excessive since there are likely to be numerous small and large quantity generators in most LEPC jurisdictions (78, 214). One commenter believed requiring agreement with LEPCs is duplicative since LEPCs are already required to be given copies of emergency response plans, and are already invited to come on-site to tour facilities (224). Six commenters were concerned that the emergency responders or LEPCs will be unwilling or unable to enter into such agreements (120, 128, 225, 232/281, 241; 262). Three commenters believed this requirement will make generators liable for the actions or inactions of LEPCs beyond their control (89, 168; 248). Four commenters stated the requirement for an "agreement" is burdensome for generators since they have no authority to require the emergency responders to develop and agree to arrangements (173, 201, 232/281; 255). Two commenters believe these requirements would be a substantial burden on local responders given the number of arrangements and contingency plan updates they will receive (245, 248). One commenter believed changes proposed by EPA are unworkable; in particular, requiring SQGs and LQGs to not simply "attempt" to make arrangements but to ensure that arrangements are actually made and that SQGs and LQGs would have to obtain a certified letter or other documentation confirming that the arrangements "actively" exist (126/188). One commenter noted that there are simply too many different cases and circumstances across the U.S. to become needlessly prescriptive for the process for making or attempting to make arrangements for emergency response (156)

Comment:  One commenter agreed with the change requiring that a generator must enter into an agreement with emergency planning officials as those officials now exist in the fire departments and emergency management agencies. (147)

Comment:  One commenter agreed with the requirement that LEPCs and generators come to an "agreement" (256).

Comment:  One commenter believed these proposals will require the local government employees that participate in LEPCs or serve on emergency response agencies to cope with the demands of LQGs for "agreements" and "arrangements" (191) and another commenter (151) supports this position as this would result in significant financial impacts on small governments.

Comment: Five commenters requested the following clarifications (77, 78, 107, 142; 214):

    Defining the level of effort a generator must take to make arrangements with an LEPC before determining the effort unsuccessful (77, 107), including what happens if the LEPC does not respond or claim responsibility for the agreement (142)
    Describing when "other emergency response teams, emergency response contractors, equipment suppliers, and local hospitals" should be arranged for (78).
    What constitutes an "agreement" (214).
    Whether generators with existing arrangements with local fire departments would be required to attempt to make new arrangements with an LEPC as this could disrupt longstanding existing arrangements (77, 107). 

Comment: 10 commenters made the following recommendations (87, 90, 107, 152, 173, 189, 195, 204, 219; 220):

    Change the regulatory language to state SQG/LQG must "use all reasonable effort" to make arrangements with the LEPC/emergency responders (219).
    Alter the language of the regulation to reduce the burden on LEPCs (90). The connotation of agreement is that of two parties agreeing to provide certain services or resources during an incident. The commenter suggests changing "enter into an agreement" to "notify in a method determined by the LEPC."
    Change the arrangement approach to a notification or submittal process (204).
    Retain the current language which requires facilities to "attempt" to make arrangements with potential emergency responders, as LEPCs are not required to cooperate (87, 152, 173, 189, 195; 220). One commenter states that without the word "attempt" in the regulatory text, the regulated entity would automatically be in a state of non-compliance if local authorities do not respond to or deny a request (189). 
    Add a time frame for generators to comply with the requirement (107).

Comment:  One commenter stated the proposed rule is attempting to incorporate the LEPCs in the arrangement and contingency plan process even though they have not been included in the emergency notification procedures (204).

Comment: One commenter believed generators should only be required to coordinate with LEPCs and emergency responders when the facility is not obligated to do so under EPCRA, RMP, or some other authority (192) 

Comment: One commenter disagreed with using the words "agreement" and "arrangement" The commenter believes that the terms "agreement" and "arrangement" give LQGs some degree of control over community preparedness and emergency planning (191) and another commenter supports this position (151).

Comment: One commenter stated that LEPCs cannot conceive of an "arrangement" that would allow a facility to dictate anything involving mutual aid agreements or incident command procedures (193).
 
Comment: One commenter questioned the usefulness of notifications to local authorities even as the current regulations are written (229). 

Comment: One commenter believed requiring a separate notification for waste is not needed since the hazards of the waste are the same as the hazards of the original chemicals (154).

Response (general):  EPA has considered these comments and, in light of overwhelming opposition, the Agency is not finalizing proposed language indicating that generators must make arrangements with local responders and has clarifying in the final rule at 40 CFR 262.16(b)(8)(vi)(A) and 40 CFR 262.256(a) that SQGs and LQGs, respectively, must simply attempt to make arrangements with local responders. 

Section 4.7.4 - Documenting arrangements with LEPCs
 Comment: Five commenters supported the requirement to document arrangements with LEPCs, or other local first responders (116, 174, 182, 185; 217). One commenter believed in some instances the documentation of these arrangements should state that the facility is capable of performing its own emergency response (182). One commenter recommended EPA provide some guidance or template for this documentation (116).

Comment: Five commenters did not support the requirement to document arrangements with LEPCs or other local first responders due to the additional burden on both parties (78, 89, 173, 219; 243). One commenter believed it is unreasonable and unduly burdensome for EPA to expect that the generator conduct inquiries with the local officials as to the reason for officials' non-response (243). One commenter believed documenting the arrangements is unnecessary because the arrangements will be in the contingency plan (219). One commenter was concerned that "records" documenting the arrangements may be difficult to obtain (78).

Comment: One commenter believed most SQGs will not have levels that trigger Emergency Planning and Community Right-to-Know Act reporting (174).

Comment: Three commenters requested the following clarifications (179, 240; 257/288):

    Documentation needed to prove a generator has attempted to enter into agreements with their LEPCs, or other emergency responders (Commenters 179, 240) and the type of "certified documentation" that LQGs have in their files regarding LEPCs and their contingency plans (240)
    Whether a receipt of a certified letter is sufficient to acknowledge acceptance of the agreement (240).
    Whether EPA would consider allowing certified mail receipts, or similar documentation, to be used as confirmation that arrangements have been made (257/288).

Comment:  One commenter objected to including documentation of agreements in the RCRA Contingency Plan (156).

Response (general):  Taking into account feedback from all commenters, the final rule language at 40 CFR 262.16(b)(8)(vi)(B) and 40 CFR 262.256(b), for SQGs and LQGs, respectively, clearly states requirements in terms of documenting either the attempts or, if successful, the final arrangements, including what constitutes sufficient "documentation" that best efforts were made to enter into arrangements. EPA has also removed the term "certified letter" in recognition of the fact that there are various means of confirming that arrangements actively exist, or were sought but not obtained, including, but by no means limited to, a certified letter, fax and electronic mail. Additionally, based on these comments, EPA is revising proposed language to insert the phrase "in the operating" record that would, as discussed in the final rule preamble, include the contingency plan in order to provide additional flexibility regarding where such documentation can be retained. Finally, EPA has noted in the final rule preamble that, during implementation of the final rule, as part of coordinating with stakeholders and conducting associated outreach activities, the Agency intends to address the issue of what constitutes reasonable efforts or sufficient attempts by SQGs and LQGs to make and document arrangements with local authorities.


Section 4.7.5 - Large facilities with internal emergency teams
 
Section 4.7.5:   EPA requested comment on emergency procedures at large facilities with internal emergency teams (i.e., feasibility of providing a waiver from requiring either an SQG or LQG to enter into arrangements with local authorities when these facilities have 24-hour on-site emergency response capabilities and circumstances under which a waiver would be granted).

Comment: 11 commenters supported providing a waiver from entering into agreements for generators with their own emergency response teams (77, 78, 85, 92, 93, 179, 182, 192, 200, 248; 255). One commenter (77) believed that many oil and gas facilities would fall into this category, another commenter (93) believed likewise for all nuclear power plants and yet another (200) noted that some mining facilities have their own 24-hour emergency and fire response capabilities. One commenter believed a waiver should be provided for facilities with classified information or facilities where off-site emergency organizations are not necessary or practical due to security but also noted that proposed regulations do not include any language addressing this issue and recommended that the waiver proposal include a mechanism for a facility to document that these arrangements are not required and that such documentation be available during an inspection (92). One commenter requested clarification regarding how the proposed change would affect entities that have their own emergency responders and an exemption from agreements for entities that have their own emergency responders (179). Another commenter believed that, in some special instances (e.g., determined on a case-by-case basis), the documentation of these arrangements with local authorities should state that the facility is capable of performing its own emergency response and that this information should be documented in the facility's contingency plan (182).  A commenter suggested certain documents as possibly being suitable for supporting the waiver request such as a memorandum of understanding (or similar document), letter from the CEO/Commander/etc. stating that emergency management staff will remain as funded positions for a specified time interval or an organizational chart with job descriptions (248).

Response (77, 78, 85, 92, 93, 179, 182, 192, 200, 248; 255):  EPA agrees with these commenters and also supports the need to document the waiver process. The Agency has addressed this in the final rule preamble and regulatory text.
   
Comment:  Four commenters did not believe a waiver was appropriate for generators with their own emergency response teams (71, 108, 123; 156). One commenter noted that any response team can be overwhelmed if the situation is serious enough or the on-site "go to" people are incapacitated; therefore, it would be safer if local emergency management authorities are aware and involved (108). Another commenter opposed a waiver but instead requested that an exemption be created for such generators meeting the conditions satisfying the spirit and intent of this new rule (123). One commenter indicated awareness that certain large facilities have internal emergency teams, including the commenter's own facility, which possesses on-site fire halls and medical clinics and its own emergency response capabilities (e.g., fire, rescue, medical and spill response teams)  -  and is not accessible to the LEPC. However, this commenter also believed that existing regulations suffice and that "large" facilities should be able to simply identify their teams as being equivalent to LEPCs and local emergency response authorities  -  such that a waiver process should not be established (156).

Response (108, 123; 156):  EPA disagrees with these commenters and believes establishing a waiver process is appropriate in order to clearly identify those facilities that will not be making arrangements with local emergency management authorities. EPA also notes that the decision to request a waiver rests with the facility and that the waiver request would need to include justification so as to ensure approval.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that it believes all generators should make arrangements with the local authorities even if the generator has its own emergency response team, noting the commenter's experience that off-site emergency services may be needed during catastrophic or long-lasting incidents. One of the member organizations suggested that, in some special instances (e.g., on a case-by-case basis), documentation of these arrangements should state that the facility is capable of performing its own emergency response, although his information would need to be documented in the facility's contingency plan. Another member organization stated that refineries generally have their own specially trained response teams and do not have the local emergency response teams respond unless requested and that they generally have agreements with the local emergency response teams in place. This organization stated that, if the proposed rule is adopted, then a waiver should be allowed for these types of circumstances and also suggested that EPA consider a particular information delivery system ("E-Plan") for electronic submittals (217).

Response (217):  EPA appreciates the information and suggestions provided the commenter's member organizations. The Agency supports the waiver process, as noted in the final rule preamble and regulatory text. Regarding the method of delivery, although final regulations do not specify how the waiver should be submitted, we would encourage generators to work with the "Authority Having Jurisdiction" to determine the most appropriate approach for providing the waiver request.

Response (overall):  With respect to large facilities possessing internal emergency response capability, EPA has added language at 40 CFR 262.16(b)(8)(vi)(C) and 40 CFR 262.256(c) allowing these facilities to obtain a waiver from the "Authority Having Jurisdiction" in terms of entering into arrangements with local authorities, provided the waiver is documented "in the operating record." The "Authority Having Jurisdiction" may be the fire marshal, fire chief, building official, or another official designated by the state or local government. EPA has inserted the phrase "in the operating record," which would include the contingency plan, to provide additional flexibility regarding where such documentation can be retained.

Section 4.7.6 - Contingency plans
 Section 4.7.6:  Contingency Plans [Requirement for new LQGs to submit a contingency plan executive summary  -  termed "quick reference guide" in the final rule  -  to emergency management authorities].

Comments:  22 commenters believed that new LQGs should be required to provide an executive summary (78, 82, 85, 108, 145, 157, 159, 174, 178, 182, 185, 189, 204, 214, 219, 232/281, 248, 250, 256; 264; 289)

Response (78, 82, 85, 108, 145, 157, 159, 174, 178, 182, 185, 189, 204, 214, 219, 232/281, 248, 250, 256; 264):  EPA agrees that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions. This is requirement is set forth at 40 CFR 262.262(b). 
	
Comment:  While supporting the requirement for a contingency plan executive summary, a commenter suggested the following changes: (1) contents of the contingency plan executive summary should be included in 40 CFR 262.261 not 262.262; (2) 40 CFR 262.262(b) should be relocated to 40 CFR 262.260 and (3) 40 CFR 262.263(a) should be revised to require that current LQGs amend their contingency plans to include the executive summary when the next amendment is triggered by 40 CFR 262.263 after [date 6 months after final rule publication]. (174)

Response (174):  EPA believes that 40 CFR 262.262(b), including the contents of the contingency plan quick reference guide at (b)(1)-(8), is appropriately located. Rather than revising 40 CFR 262.263(a), EPA has added language to 40 CFR 262.262(b) indicating that an LQG that is otherwise amending its contingency plan ("current LQG") must submit a quick reference guide at that time.

Comment:  This commenter believed that LQGs should submit the first executive summary to LEPCs whenever they significantly change their contingency plan. This commenter also believed that use of a contingency plan/executive summary submission attached as a PDF via CAMEO should be the method of transmission for these proposed regulations as this would allow LEPCs to receive contingency plans and executive summaries in the same way as they receive information required by EPCRA. (182)

Response (182):  Final regulations at 40 CFR 262.262(b) clarify that an LQG that first becomes subject to these provisions or an LQG that is otherwise amending its contingency plan must, at that time, submit a quick reference guide. Final regulations at 40 CFR 262.262 do not specify the format in which the contingency plan must be provided nor do they discuss software applications. However, as noted in the final rule preamble, EPA strongly encourages LQGs to work with first responders to determine whether electronic submission of contingency plans, including incorporating contingency plan information into existing software applications such as CAMEO, is an acceptable approach either in lieu of or in addition to a hard copy submission.

Comment:  Although agreeing that a shorter document, such as an executive summary, would be more effective for emergency response, this commenter does not agree that creating an executive summary solely for a hazardous waste contingency plan is the right approach. Over the years, multiple overlapping contingency planning requirements were established as various programs and related regulatory requirements were established. With implementation of the National Response Team (NRT) Integrated Contingency Plan Guidance ("One Plan") in 1996, a significant need was recognized across multiple agencies for an approach to consolidate these separate and somewhat disparate requirements, as a benefit to both industry, and emergency planners and responders. Establishing an executive summary specific for the hazardous waste contingency plan requirements would be repeating the same mistake as with the initial development of separate contingency plan requirements under individual programs. If an executive summary is needed for hazardous wastes contingency plans, it is likely a similar situation exists with other contingency plans. The commenter suggested that EPA take this opportunity to consider developing an executive summary contingency plan approach that would span across multiple programs, as the One Plan guidance does for the full contingency plans. (204)

Response (204):  EPA disagrees with this commenter. Existing regulations already allow development of a contingency plan that meets regulatory standards besides RCRA; moreover, EPA recommends that generators base their contingency plans on One Plan guidance, as also noted at 40 CFR 262.261(b). The Agency encourages generators to work with emergency response agencies and others to identify additional elements that could be included within a quick reference guide that satisfies the requirements of multiple programs.

Comment:  A commenter asked what changes qualify for resubmittal or updating submitted plans (214).

Response (214):  40 CFR 262.262(c) requires that all LQGs update and submit their quick reference guides, if necessary, whenever the contingency plan is amended.

Comment:  A commenter providing feedback on behalf of multiple member organizations recognized EPA's intent to streamline access to information contained within contingency plans during an emergency. However, this commenter stated that requiring new LQGs to develop a mandatory executive summary for contingency plans may prove redundant and be equally as complex as development of the full contingency plan, given that most of the information that would be required in the executive summary would also be included in the full contingency plan. This commenter also indicated that one of its members requested clarification regarding what EPA means by a "new LQG." (217)

Response (217):  EPA believes that preparing a quick reference guide will be neither redundant nor complex since each of the eight elements will be clearly identified in the regulations at 40 CFR 262.262(b)(1)-(8). For the purposes of these provisions, a "new LQG" is a facility that becomes an LQG after the effective date of this regulation. 

Comment:  This commenter believed that creating an executive summary, particularly one for a highly factual document like a Contingency Plan, may cause the emergency responder who just reads the executive summary to miss important information.  The commenter also stated that, at a small plant, an executive summary would add pages of repetitive information to what is likely already a manageable contingency plan and, at a very large plant, an executive summary would have to be extensive to cover the required information, thus defeating its purpose. The commenter suggests that EPA simply require an LQG to have a table of contents or index in its contingency plan if it is beyond an easily readable length (e.g., 20 pages). This will enable an emergency responder to easily find the section of the plan relevant to whatever issue the emergency responder needs to address. (219)

Response (219):  EPA has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Comment:  This commenter believes a time period should be specified for issuance of the executive summary for existing LQGs. (248)

Response (248):  EPA has not specified a time period, however, the final rule language distinguishes between existing and new LQGs with respect to preparation and submission of quick reference guides at 40 CFR 262.262(b). EPA has also added new language at 40 CFR 262.262(c) to require that all LQGs update and submit their quick reference guides, if necessary, whenever the contingency plan is amended.

Comment:  A commenter stated that contingency plans do not contain a summary for use in an emergency situation where response time is critical and that agreements with local emergency planning committees aren't required to be written down. This commenter also noted that considerations for modern technology and alternative waste collection and clean-up/removal procedures have not yet been put into place (289). 

Response (289):  EPA presumes that the commenter would support proposed revisions intended to address the issue of response time, such as requiring a contingency plan quick reference guide (for both new and existing LQGs), and to better document arrangements with local emergency responders by in terms of either confirming that such arrangements actively exist or, in cases where no arrangements exist, that attempts to make such arrangements were made. These revisions, as well as additional revisions made to address feedback from other commenters, have been incorporated into the final rule at 40 CFR 262.256 and 40 CFR 262.262(b) and (c).

Comments:  13 commenters believed that new LQGs should not be required to provide an executive summary (71, 77, 92, 107, 116, 126/188, 128, 131, 142, 168, 191, 192, 262).

Response (71, 77, 92, 107, 116, 126/188, 128, 131, 142, 168, 191, 192, 262):  EPA disagrees with these commenters and believes that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions, as set forth at 40 CFR 262.262(b). 

Comment:  The commenter did not agree with the need for an executive summary of each contingency plan as this could be redundant with no added value for certain facilities and suggested that wording be added to the proposed regulation to allow for such situations. (92)

Response (92):  EPA believes that the majority of facilities, as well as local emergency responders, will benefit from creation of a quick reference guide.   

Comment:  The commenter stated that EPA should not require LQGs to provide executive summaries. Mandating that LQGs submit executive summaries will compel submission of documentation that, in all likelihood, the LEPC will find redundant, which is contrary to the overall objective of improving an LEPC's effectiveness. The commenter suggests that EPA consider eliminating this requirement or at least changing it to require the LQG to consult its LEPC concerning whether an executive summary is necessary and what information it should contain. (107)

Response (107):  As noted elsewhere in this response to comments, EPA is not finalizing references to LEPCs as the primary contact identified at 40 CFR 262.256 for LQGs; rather, LQGs are directed to submit the quick reference guide to local emergency responders identified at § 262.262(a), although this document could also be submitted to LEPCs, as appropriate. EPA believes that local emergency responders and LEPCs will find the quick reference guide necessary and useful. Regarding the contents of the quick reference guide, local emergency responders and LEPCs, as well as LQGs, are free to include elements besides those specified at 40 CFR 262.262(b)(1)-(8).

Comment: This commenter stated that requiring new LQGs to develop an executive summary for contingency plans may prove redundant and be equally as complex as development of the full contingency plan, given that most of the information required in the executive summary would also be included in the full contingency plan. Additionally, the commenter recommended that EPA place greater emphasis on the quality of the contingency plan components and subsequent due diligence actions by the affected and involved entities. (116)

Response (116):  EPA believes that preparing a quick reference guide will be neither redundant nor complex since each of the eight elements will be clearly identified in the regulations at 40 CFR 262.262(b)(1)-(8). EPA fully agrees that contingency plan quality is important; however, we are not addressing this issue in the final rulemaking.

Comment:  This commenter did not support a mandatory requirement that contingency plans include an executive summary as the commenter believed having an abbreviated summary would encourage responders to rely on the summary rather than on the complete, critical information in the body of the plan. (126/188)

Response (126/188):  EPA believes that the full contingency plan and associated quick reference guide will complement each other, with the latter allowing first responders to quickly access key information in the event of an emergency.  Although the content of the quick reference guide is intended to capture critical information, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment:  This commenter objected to submission of an executive summary of the contingency plan because the full contingency plan is already being submitted to the agencies with whom the generator has made arrangements. The development and submission of an executive summary becomes an undue burden when the requirement already exists to submit the full plan. It was suggested that a better approach is to simply have a table of contents or index that will quickly direct the reader to all of the needed information. (131)

Response (131):  EPA agrees and has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Comment:  This commenter did not support producing an executive summary as it duplicates the information required in the contingency plan. For complex organizations, such as higher education with research, it would be extremely difficult to provide a simple summary with all of the proposed requirements. This commenter suggested that a table of contents is a simple and effective way of providing information to emergency responders. (142)

Response (142):  EPA agrees and has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Comment:  This commenter believed that, whatever the merits of requiring an executive summary for contingency plans, there is no need for such a summary in the retail sector. The commenter suggested that EPA rely on other programs to ensure that executive summaries are available to the extent they may be necessary and useful to first responders. (168)

Response (168):  EPA believes that the majority of facilities, as well as local emergency responders, will benefit from creation of a quick reference guide.   

Comment:  This commenter believed an executive summary is essentially worthless to active LEPCs and saw no reason for LQGs to be required to create an executive summary when active LEPCs are likely to simply ask for the entire plan, further noting that inactive LEPCs will not be harmed by only receiving the full plan. (191)
 
Response (191):  EPA has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency. Also, as noted elsewhere in this response to comments, EPA is not finalizing references to LEPCs as the primary contact identified at 40 CFR 262.256 for LQGs; rather, LQGs are directed to submit the quick reference guide to local emergency responders identified at § 262.262(a), although this document could also be submitted to LEPCs, as appropriate. EPA believes that local emergency responders and LEPCs will find the quick reference guide necessary and useful.
 
Comment:  A commenter opposed this requirement. In the commenter's experience, emergency responders do not want to be tasked with maintaining such materials, including the need to protect confidential business information contained in such documents and the need to replace old versions with new versions. The commenter stated that most LEPCs and emergency responders are not going to read even summaries of such information unless and until they have to or in connection with a drill or other exercise. The commenter also stated that many of its members maintain their contingency plans and safety data sheets in lockboxes on site to which local responders have been given keys and are thus able to familiarize themselves with the facility. In this way, the emergency responders have access to updated, relevant information when they need it. The commenter suggests that, at a minimum, EPA should include an option to comply with information sharing requirements via a lockbox. (192)

Response (192):  The commenter raises an interesting point regarding confidential business information, which is something the Agency is not specifically addressing in the final rule, although the extent to which elements specified at 40 CFR 262.262(b)(1)-(8) for a quick reference guide (as opposed to a full contingency plan) would contain confidential business information is unknown to us. Regardless of where the quick reference guide is located (i.e., lockbox or elsewhere), EPA believes that emergency responders and LEPCs will find this document useful.  

Comment:  A commenter stated that the proposed executive summary requirements further place a burden on LQGs because not only would they need to ensure that their contingency plans are compliant but also that the summaries follow the detailed requirements. The commenter recommends that executive summary requirement be voluntary so that generators who have proper contingency plans are not subject to possible enforcement action because the executive summaries may not follow the detailed requirements. Instead, LEPCs should be encouraged to review contingency plans rather than placing the added burden on generators to summarize the plan. As an alternative to the proposed regulation, the commenter recommends a table of contents or index so that emergency responders can find the information they are looking for during an emergency. (262)

Response (262):  EPA agrees and has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Section 4.7.6.1 - Contingency plan executive summary

There are no comments organized to this section of the comment outline. Any relevant comments are responded to under Issue 4.7.6. 
Section 4.7.6.1.1 - Scope of contingency plan executive summary

Section 4.7.6.1.1:  Scope of contingency plan executive summary [appropriateness of information described by the eight elements comprising the quick reference guide].

Comment:  While objecting to submission of an executive summary, the commenter believed that simplified information from the contingency plan may be beneficial to first responders, although the commenter suggested that generators and LEPCs or fire departments should have the flexibility to work together on a site-specific basis to determine what information needs to be distilled. (77)

Response (77):  Although the content of the quick reference guide is intended to capture critical information, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment:  Three commenters agreed with the eight elements proposed to be listed in the summary (85, 145; 248), while one commenter only believes elements #1, #2, #3, #4 and #6 are necessary (108).

Response (248):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident.

Commenter:  A commenter, while objecting to the requirement for new LQGs to submit an executive summary, recommended that 40 CFR 262.262(b) be modified to read, "The executive summary must include the following elements unless excluded by the responding agency (Local Emergency Planning Committee, Fire Department, local emergency responders, etc.) in the written agreement," Including recommended text would allow the responding agency to determine if there may be some information that they do not need in the executive summary. (116)

Response (116):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident. However, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment:  Three commenters similarly suggested that EPA modify the language at 40 CFR 262.262(b) regarding the eight elements to read, "The executive summary must include the following elements as required by the LEPC or responding agencies" (or comparable language) (128, 219, 225). A commenter also expressed concern about this requirement and believed EPA is being too comprehensively rigid in specifying what information must be included, suggesting that such information should be required except where the written agreement between the Local Emergency Planning Committee and other appropriate responders states that it is unwarranted. (128)

Response (128, 219, 225):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident.  However, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment: The commenter suggested that the executive summary include a list of storage areas and a brief description about the types of wastes that may be stored there and their associated hazards (e.g., corrosivity or flammability). (159)

Response (159):  EPA believes that this information is already required under element #1 of the quick reference guide but notes that local emergency responders and LQGs are free to include additional information in this document. Moreover, authorized states can establish additional informational requirements for this (or any other) element.

Comment:  A commenter believed that the word "coordinator" in proposed §262.262(b)(8) should be changed to "coordinator(s)," since an LQG could have more than one emergency coordinator (178).

Response (178):  Regulations at 40 CFR 262.261(d), 40 CFR 262.263(e) and 40 CFR 262.264 already indicate (or allow for) more than one emergency coordinator at a facility. However, for the sake of consistency, EPA has revised 40 CFR 262.262(b)(8) as suggested and changed the word "number" to "number(s)" to reflect the fact that more than one emergency coordinator telephone number could exist  -  as mentioned in 40 CFR 262.261(d).

Comment:  The commenter agreed with the required eight elements but believes that many process units pose greater hazards to responders than waste accumulation units.  As examples, the commenter noted that fires are a frequent hazard at plating facilities that have high voltage lines and heated tanks, in addition to cyanide plating baths and excluded waste water treatment units, which have a much higher hazard potential than the accumulated Gaylord containers of treated plating sludge. (214)

Response (214):  Local emergency responders and LQGs are free to include additional information in this document and authorized states can establish additional informational requirements beyond those represented by the eight elements.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one of its members suggested adding the evacuation routes to the executive summary. Another member believed requiring a map that shows where hazardous waste is generated/accumulated in the executive summary will pose a unique burden on federal facilities and large campus-style facilities, which may have changing sources of hazardous waste generation and accumulation areas. This member suggests allowing for submittal of revised maps without having to re-submit the entire executive summary, as well as maintaining a current map at the facility to be provided immediately to emergency responders during an incident. Similar to commenters 128, 219 and 225, one member recommended that EPA modify the language at 40 CFR 262.262(b) regarding the eight elements to read, "The executive summary must include the following elements unless excluded by the responding agency (Local Emergency Planning Committee, Fire Department, local emergency responders, etc.) in the written agreement," noting that this modification allows the responding agency to determine if there may be some information that they do not need in the executive summary. (217)

Response (217):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident. However, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included. Additionally, authorized states can establish additional informational requirements beyond those represented by the eight elements.

Comment:  One commenter noted that, while the generator would have information on the types and maximum quantity of hazardous waste present at any time, street and site maps, descriptions of alarm systems, emergency contact information and similar items that can be transmitted to the authorities, not all elements proposed by EPA are necessarily available to the generator. For example, medical information for exposure and water supply flow rates are not necessarily known by the generator and often cannot be easily obtained. The commenter noted that, while general information that is readily available can be provided, a generator may not be in a position to obtain and communicate detailed information that is not within its possession or area of expertise. (257)

Response (257):  EPA believes it is not unreasonable to expect generators to obtain information described at 40 CFR 262.262(b)(1)-(8), although we realize that certain elements could prove more challenging. We would encourage generators to work with emergency response agencies and others to identify certain types of wastes that require unique or special treatment. EPA realizes that water supply flow rates are not necessarily known by the generator and often cannot be easily obtained and likely vary through time; however, it should be possible to make an estimate with the intent of ensuring that sufficient water pressure and water volume are available. 

Response (overall):  EPA is not making any changes to the elements as far as information needed to assist emergency responders is concerned; therefore 40 CFR 262.262(b)(1)-(8). However, EPA notes that, in order to be consistent with changes made to 40 CFR 262.261(d) regarding eliminating employee personal information in LQG contingency plans, the Agency has revised language in element #8 to read "...the name of the emergency coordinator(s) and emergency telephone number(s) or, in the case of a facility where an emergency coordinator is continuously on duty, the emergency telephone number for the emergency coordinator."

Section 4.7.6.1.2 - Elements of contingency plan executive summary
 
Section 4.7.6.1.2:  Elements of Contingency Plan Executive Summary [EPA took comment on: (a) whether providing information regarding identification of hazardous waste under element #1 (i.e., name of the waste in layman's terms) is sufficient for ensuring that first responders will be able to identify the appropriate actions to take in response and (b) whether referencing material in the North American Emergency Response Guide (NAERG), where appropriate, would be useful by reducing the time it takes to get the necessary information for managing the situation) to first responders and whether generators can easily access this information to add to their contingency plans].
   
Comment:  A commenter supported the intent of including this information but recommended specifically requiring the United Nations/North American Identification Number (UN/NA) for each hazardous waste, rather than referencing the NAERG because the latter could include, besides the common name already proposed, several different identifiers, thus negating any beneficial effects of this element. The commenter noted that requiring the UN/NA should not be a challenge for LQGs since this information is already required for each waste when completing the Uniform Hazardous Waste Manifest; therefore, this information would already be known for any LQG manifesting its hazardous waste off-site. The commenter also added that the UN/NA could then be used to search and identify wastes in the NAERG (232/281).

Comment:  Another commenter supported EPA's intent to provide information, in a more convenient form, to emergency responders in order to assist them in the event of an incident.  The commenter agreed that providing names in layman's terms is adequate to ensure that first responders can identify the appropriate actions to take in response to an incident and that a NAERG, where appropriate, would likely reduce the time it takes for first responders to receive information needed to manage the situation. The commenter also agrees that regulations should allow for wastes to be grouped in categories associated with their hazard, as opposed to a list of individual wastes, as this list might be long and not meet the intended goal (236/287).

Response (general):  EPA thanks the commenters for their support and appreciates the suggestion of one commenter regarding use of the UN/NA. EPA is finalizing 40 CFR 262.262(b)(1) as proposed, in order to avoid being overly prescriptive, but notes that authorized states can establish additional informational requirements for this (or any other) element and that other authorities can do likewise (or at least make recommendations).

Section 4.7.6.1.3 - Including NAERG reference in element 1

All comments organized to this section of the comment outline are responded to under Issue 4.7.6.1.2. 
Section 4.7.6.1.4 - Including medical information in element 3

Section 4.7.6.1.4:  Including Medical Information in Element 3 [EPA took comment on whether element #3 should also include a requirement that the generator provide information on the medical information for exposure to hazardous wastes requiring special treatment; specifically, whether this information is readily available to the generator for inclusion in the executive summary of the contingency plan and whether first responders would find this additional information useful for responses].

Comment: One commenter did not support this proposed change as it would require generators to determine the type of medical treatment that would be needed in the event of exposure to hazardous wastes.  This commenter stated that such determinations would be necessary in order for the generators to identify hazardous wastes for which exposure would require a unique or special treatment by medical or hospital staff, further noting that this information is not within the purview of the generators, and in many cases, would need to be provided by the very same first responders that would be receiving it from the generators via the executive summary (123).

Response (123):  EPA has decided not to include this additional requirement as part of element #3 but would encourage the generator, in consultation with first responders, to include medical-related information associated with exposure to certain hazardous wastes.

Comment: Two commenters requested clarification regarding the explicit identification of wastes that would require a unique or special treatment by medical or hospital staff (123, 232/281). One commenter specifically inquired as to what constitutes "unique or special treatment," who can supply instructions for such treatment and when documentation of the determination of such treatment is required. (123). Another commenter noted that any chemical harmful to the human body, which includes nearly all hazardous wastes by definition, may necessitate "unique or special" medical treatment, depending on the circumstances of the exposure, the duration and concentration of the exposure and the particular individual exposed. This commenter stated that, since there are no criteria or definitions for "unique or special treatment" to determine which hazardous wastes would be required be included as part of element #3, generators would be unable to determine if they were compliant or noncompliant with the requirement. The commenter believed that this information is best determined by medical staff based the circumstances of each particular incident, using the hazardous waste identification information already proposed for inclusion in the quick reference guide and recommended that EPA remove element #3 (232/281).

Response (123, 232/281):  EPA agrees that there exists no criteria or definition for particular hazardous wastes requiring unique or special treatment. The type of treatment required will necessarily depend on the type of hazardous waste, as well as factors mentioned by one of the commenters (i.e., circumstances of the exposure, duration/concentration of the exposure and the particular individual exposed). However, the Agency believes it is not unreasonable to expect generators, based on knowledge of the wastes generated at their facilities, to be able to identify certain types of wastes that require unique or special treatment.
 
Response (overall):  EPA is finalizing 40 CFR 262.262(b)(3) as proposed. 

Section 4.7.6.1.5 - Other

    EPA requested comment on whether regulations should mandate how frequently a generator must communicate with emergency response agencies (LEPC or local fire department, etc.) if it has not otherwise communicated with them.

 Comments:  One commenter believed communication could be addressed by submitting updated executive summaries to the LEPC and/or other agencies whenever information included in such executive summaries was revised or when the LEPC and/or other agencies requested additional information (78). One commenter believed the regulations should not mandate how frequently a generator should communicate with its emergency response agency (85). Another commenter stated that the final rule does not need to specify a frequency for facilities to update LEPCs and added that, if EPA concludes the rule must provide direction on updates, that the Agency identify events that would prompt an update, as opposed to an arbitrary frequency (107). Two commenters believed SQGs and LQGs should only be required to communicate with their LEPC/emergency responders in the event that the facility has a major change in its operations (182, 217). One commenter suggested that a requirement to update arrangements with local emergency responders or LEPCs should be annually, at a minimum, and more frequently if modification is needed based on changes such as the type and amount of waste generated (257/288), while another commenter expressed support for EPA's proposed requirement that "...generators document arrangements with Local Emergency Planning Committees (LEPCs) annually..." (116).
 
 Response (general):  EPA agrees with the majority of commenters and continues to believe that it is unnecessary to mandate how frequently a generator should communicate with its emergency response agency. Therefore, the Agency is not making any changes to what was proposed at § 262.16(b)(8)(vi) and § 262.256 for SQGs and LQGs, respectively. Additionally, in response to commenter 116, EPA wishes to note that the Agency did not specify a communication frequency in the proposed rule preamble.  Rather, the Agency noted that, since some SQGs and LQGs may already coordinate with their LEPCs annually as part of their EPCRA requirements, it would not be necessary to include time frames as part of this rule. The Agency, nevertheless, requested comments on whether the regulations should mandate how frequently a generator must communicate with its LEPC or local fire department if it has not otherwise communicated with them.

    EPA requested comment on whether an existing LQG that has already provided its full contingency plan should also be required to submit an executive summary to the LEPC or, if appropriate, the fire department or other emergency responders.
   
Comments: 19 commenters indicated that they would support a requirement for existing LQGs to provide an executive summary (78, 82, 108, 145, 157, 159, 178, 182, 185, 189, 204, 217, 219, 232/281, 248, 250, 256; 264; 289).

Response (78, 82, 108, 145, 157, 159, 178, 182, 185, 189, 204, 217, 219, 232/281, 248, 250, 256; 264):  EPA agrees that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions. This requirement is set forth at 40 CFR 262.262(b). 

Comment:  A commenter providing feedback on behalf of multiple member organizations noted that EPA is not proposing to require an LQG that has already developed/submitted a contingency plan to local emergency responders to prepare an executive summary because of the additional burden that would be imposed. It was suggested that, if the proposal for an executive summary is finalized, regulations should be written to give the generators a choice of an executive summary or a comprehensive contingency plan. Another member believed that LQGs should submit the first executive summary to LEPCs whenever they significantly change their contingency plan. (217)

Response (217):  Based on comments received, final regulations require LQGs that have already developed/submitted a contingency plan to submit a quick reference guide when amending their contingency plan, as described at 40 CFR 262.262(b).

Comment:  The commenter stated that, in addition to requiring an executive summary immediately for new LQGs, it finds value in eventually requiring it for all LQGs and suggested a delayed requirement date of five years from the effective date of this regulation for these LQGs to update their contingency plan to include an executive summary. (256)

Response (256):  Final rule language distinguishes between existing and new LQGs with respect to preparation and submission of quick reference guides at 40 CFR 262.262(b). EPA has also added new language at 40 CFR 262.262(c) to require that all LQGs update and submit their quick reference guides, if necessary, whenever the contingency plan is amended.

Comments:  12 commenters indicated that they would not support a requirement for existing LQGs to provide an executive summary (71, 77, 92, 107, 126/188, 128, 131, 142, 168, 191, 192; 262).

Response (71, 77, 92, 107, 126/188, 128, 131, 142, 168, 191, 192; 262):  EPA disagrees with these commenters and believes that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions, as set forth at 40 CFR 262.262(b). 

    EPA requested comment on whether an SQG should be required to develop an executive summary [now termed "quick reference guide" in the final rule] of a contingency plan.
   
Comment:  Ten commenters believed SQGs should not be mandated to develop an executive summary (85, 107, 126/188, 128, 131, 168, 182, 189, 219; 248). Two commenters stated that existing RCRA regulations do not require SQGs to have a contingency plan, so it makes little sense to require them to have an executive summary of a plan that is not required (168, 189). One commenter suggested that EPA specify what information is needed and make a template/form to fulfill this requirement (189, 248). One commenter stated that SQGs are usually small businesses with limited waste streams and have already made arrangements with and are inspected by local fire departments; therefore, individual states should decide if their SQGs warrant this requirement (85). One commenter believed this could overwhelm LEPCs with an influx of SQG documentation that in many cases will duplicate information already in place (107). 

Comment:  Four commenters believed SQGs should develop and submit an executive summary (71, 78, 232/281; 264). One commenter indicated that submittal of an executive summary might be better suited for many generators, including SQGs (78) and another commenter suggested that all hazardous waste sites subject to contingency plan requirements, including existing LQGs, SQGs and TSDFs, prepare and submit an executive summary (264).  Yet another commenter believed that, since SQGs are already required to (attempt to) make arrangements with local authorities for emergency response, it is reasonable to also require a provision of the executive summary to the LEPC or local authorities as part of these arrangements. This commenter further noted that information inherently necessary to make such emergency response arrangements or enter into such an agreement is essentially that proposed to be included in the executive summary and would not be a burden to SQGs but would actually clarify what information they need to provide to LEPCs or local authorities to make the arrangements already required (232/281).

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one member would support SQG development and submission of an executive summary, while the other member would not (217).

Response (general):  EPA is not making any changes to existing regulations. However, given the prevalence of SQGs and the associated potential for adverse impacts to human health and the environment, the Agency strongly encourages these facilities, as a best management practice, to develop a quick reference guide (i.e., new term for the document referred to as an "executive summary" in the proposed rule) and share this information with local emergency responders. 

Section 4.7.6.2 - Eliminating personal information from contingency plans
 
Comment:  22 commenters largely supported listing only a name or, if 24 hour continuously staffed, the position along with the emergency telephone number  -  thereby eliminating unnecessary employee personal information, such as home/work telephone numbers and home addresses  -  in the contingency plan (77, 78, 82, 85, 87, 92, 93, 98, 106, 123, 126/188, 128, 131, 168, 196, 214, 217, 219, 224, 232/281, 260; 286).  One commenter stated that the existing requirement presents significant privacy concerns to its members and, given the existence of cell phones and other communication technologies, is entirely unnecessary (77). Another commenter noted that, although the proposal is somewhat ambiguous, if it means that a facility could simply list relevant employee titles, rather than names, it could be helpful (126/188). One commenter noted that the ability to only provide a staffed position, as opposed to name, be extended to LQGs that do not operate 24/7/365  -  and SGQs (168). One commenter, although agreeing with elimination of an emergency coordinator's local address, noted that addresses are used by inspectors to verify that a responder is based within a reasonable distance from the facility; therefore, if the address is removed, then a substitute mechanism must be provided to the inspector (214). One commenter believed this approach better protects emergency coordinators' privacy and security so their home address and telephone numbers are not made public in a Contingency Plan (219). One commenter recommended the preamble state the use of "telephone numbers" is inclusive of cellular phone numbers (224). One commenter recommended clarifying that the "emergency number" must be a direct contact line to either the emergency coordinator themselves or to an on-site operation center staffed continuously (232/281). Two commenters stated that, since emergency coordinators frequently change positions/contact information, it makes more sense to keep positions and titles updated rather than names and phone numbers (219, 286).

Comment:  Three commenters suggested EPA to extend this modification to SQGs as well (93, 98; 168).

Comment:  One commenter does not support the removal of the home address of the emergency personnel from the contingency plan because phone service may be interrupted during large scale events, so relevant personnel must be able to be reached at their home address. However, this same commenter supports regulations allowing for the provision of a position title and 24 hour emergency number for generators that have emergency staff onsite 24/7/365 (248).

Comment:  Three commenters opposed listing only a name or, if 24 hour continuously staffed, the position along with the emergency telephone number in the contingency plan (71, 108; 207). One commenter noted that individual names are preferable, as opposed to staffed positions which could change, so as to ensure that the appropriate staff have the necessary training and that the plans are always kept up to date (108).

Response (general):  EPA is finalizing § 262.261(d) as proposed, which includes:  (1) retaining the name of persons qualified to act as emergency coordinators, while removing references to addresses and changing the reference from home and office telephone numbers to an "emergency telephone number" and (2) adding language stating that, in situations where the generator has an emergency coordinator continuously on duty (24/7/365 facility operations), the plan may list the staffed position (e.g., operations manager, shift coordinator, shift operations supervisor, or some other similar position) as well as an emergency telephone number that can be guaranteed to be answered at all times. We believe this strikes the best balance in terms of ensuring that someone can be contacted in the event of an emergency situation while also, in the case of generators with emergency coordinators continuously on duty, offering more regulatory relief compared to existing regulations. EPA has decided it is appropriate at this time to focus on changes for LQGs only because they pose the greatest concern in matters of emergency preparedness.  Although EPA is not extending these requirements to other generator categories or to TSDFs, the Agency would encourage facilities to adopt these changes as a best management practice.

Section 4.7.6.3 - Alternate evacuation routes in contingency plans
 
Section 4.7.6.3:    Request for comment to include alternative evacuation routes in contingency plans [or whether a different approach would be more effective]. EPA sought comment on whether: (1) the posting of evacuation routes and holding annual evacuation training and drills would be an effective substitute to maintaining alternative evacuation routes in the contingency plan and (2) this paragraph of the regulations should discuss shelter-in-place as part of contingency plans.
   
Comments:  Six commenters agreed with the requirement to include alternative evacuation routes in contingency plans (77, 92, 126/188, 185, 217; 219). One commenter stated that, if alternative evacuation routes are considered and no reasonable alternative exists, this can be identified in the plan (77). One commenter agreed with the proposal to revise language regarding alternative evacuation routes, noting established evacuation and alternative routes exist, but may not be practical in some cases  -  noting that a release of radioactive wastes (mixed wastes) may require evacuation in a direction away from prevailing winds at that time or may require sheltering in place (92). This commenter also stated that the evacuation route or sheltering action in such instances will have to be communicated by area or site-wide announcements over the public address system and that regulations need to be written to allow for allow such circumstances (92). Another commenter suggested incorporating a shelter-in-place provision for generators who have chemicals that could produce a toxic gas plume creating unsafe conditions for an immediate evacuation (185). One commenter feels as though a requirement to identify all potential evacuation routes is excessive (217). Another commenter believed it unnecessary to identify every alternative in the Contingency Plan; rather, the plan need only confirm that alternatives have been considered and identify those that are viewed as the most appropriate under certain circumstances, including potential shelter-in-place (219).

Comment: Eight commenters disagreed with requiring alternative evacuation routes in contingency plans (85, 182, 217, 225, 229, 232/281, 248; 262). One commenter believed posting evacuation routes and holding drills is sufficient in case of an emergency and that emergency responders are likely to use evacuation routes that are readily observed (217). One commenter believes the decision to require alternate routes should rest with LEPCs who know what is necessary (225). One commenter recommended replacing this requirement with a requirement to identify shelter-in-place locations in the contingency plan (232/281). Two commenters recommended a requirement to identify employee muster locations in the plan (232/281, 248). One commenter suggested requiring a map with possible exits marked (248). One commenter discouraged EPA from making these practices mandatory in the regulations in order to be consistent with the Agency's goal of providing necessary flexibility for hazardous waste generators. (262)

Comment: One commenter believed that having evacuation routes only in the contingency plan, instead of posted throughout the facility, would not be useful in an emergency (Commenter 189). This commenter also questioned the relationship between an emergency responder's determination of the most efficient and timely approach to reach the facility and potential evacuation routes, adding that, unless the emergency response crews are responding from on-site, evacuation routes should have little to no impact on the responder's choice of routes to get to the facility (189).

Response (general):  EPA understands that it may not always be possible to identify alternate evaluation routes and likewise realizes that immediate evacuation may not always be advisable due to the nature of the emergency. Nevertheless, the Agency believes that, in the majority of instances, evacuation will be the selected course of action and that it will be possible to identify an alternate evacuation route. EPA also believes that, when developing or amending contingency plans, consideration should be given to posting evacuation routes, as well as muster and shelter-in-place locations, within the facility (and/or making such information available on cell phones) and conducting periodic training/drills. These efforts would be undertaken, as necessary, in consultation with local emergency responders. Due to the varying types/varieties of wastes handled by facilities and differing physical settings in which facilities are located, however, the regulations should allow flexibility on the part of the LQG. Therefore, EPA is finalizing § 262.261(f) as proposed. With respect to commenter 189, EPA agrees with both of the points made. The Agency encourages evacuation routes to be posted or otherwise made available by various means. Although routes used by arriving emergency responders and evacuating employees may be identical in many cases, as noted by certain other commenters, this may not always be the case. The Agency did not intend to imply that these routes are always the same.  

Section 4.7.6.4 - Electronic RCRA contingency plan app
 
Section 4.7.6.4:   Request for comment on the usefulness of a potential electronic RCRA contingency planning application

Comment: 14 commenters largely supported an electronic RCRA contingency plan application (71, 78, 82, 85, 126/188, 159, 174, 182, 189, 217, 232/281, 248, 251; 264). One commenter thinks this system should not be required since it may not be feasible in some rural areas (85). One commenter cautioned against EPA mandating use of a specific electronic database and instead recommends requiring that LQGs contact their LEPC or local emergency response agencies and submit their contingency plan information in the format required or requested by the recipient (232/281). Another commenter requested submissions be searchable electronic documents in a central system maintained by EPA (248).
 
Comment: Five commenters suggested incorporating submissions of contingency plan information into the CAMEO or Tier II reporting system (71, 82, 182, 189; 217). Two commenters preferred this method rather than submitting to the LEPC directly as this how LEPCs receive information required by EPCRA (189, 217).
 
Comment: Three commenters opposed an electronic RCRA contingency plan application (123, 131; 219). One commenter believed EPA should not devote its resources to this effort since there already exist commercial efforts to provide contingency response information and noted that, during an emergency, power and communications may be lost or disrupted during an emergency (219).

Comment: Three commenters believed electronic submittal of contingency plans to emergency responders should be encouraged but not required (77, 217; 262). One commenter believed that, while the electronic submittal of contingency plans may be useful in some instances, it is neither necessary nor the best use of resources to develop a standardized electronic application, noting that commercial response planning guidelines and applications are currently available as are processes to convert hard copy documents to electronic formats (77). Another commenter indicated that having an electronic copy of a contingency plan could be useful for some emergency responders and a hindrance for others, noting that some counties or cities may not have the means to accept or work with an electronic copy based on funding, internet access, etc. (217).

Comment:  One commenter suggested that, in cases where electronic submissions are used, hard copy versions of contingency plans should be made available if accessibility of the electronic version could not be guaranteed during an emergency event due to the need to evacuate, the loss of power or other circumstances (77).

Comment: One commenter supported electronically submitting portions of the contingency plan, specifically the information that would be contained in the executive summary, to emergency responders and LEPCs but opposes submitting the entire contingency plan electronically as flexibility when constructing the plan may be lost if standardized and, therefore, potentially result in a less effective contingency plan (256). 

Response (general):  Proposed regulations did not specify the format in which the contingency plan must be provided nor did they discuss software applications. EPA strongly encourages LQGs to work with first responders to determine whether electronic submission of contingency plans, including incorporating contingency plan information into existing software applications, is an acceptable approach either in lieu of or in addition to a hard copy submission. However, EPA believes regulations must be sufficiently flexible to allow these decisions to be made on a facility-by-facility basis; therefore, the Agency is not making any changes to proposed regulations at 262.262(a) regarding transmission of the contingency plan.

Section 4.7.7 - Safe location of emergency equipment

Section 4.7.7:  Safe locations of emergency equipment [technical changes to introductory paragraph on required equipment  -  generator flexibility to determine the most appropriate locations within the facility to locate equipment necessary to prepare for and respond to emergencies] 
   
Comment: Eight commenters supported the proposed clarifications regarding the allowable locations for required equipment (77, 83, 85, 159, 219, 248, 260; 262). The commenters agree with the additional flexibility to determine the most appropriate locations to locate emergency response equipment. One commenter noted that examples of areas where space or exposure conditions may limit the ability to store response equipment in the immediate area where waste is generated include certain laboratories, store rooms or production areas (77). Another commenter noted that emergency response equipment and supplies do not need to be located everywhere hazardous waste is managed and that one or more centralized locations can result in better response (83).

Response:  EPA agrees with these commenters as reflected in the final rule preamble and regulatory text.

Comment: One commenter, though otherwise supportive of the proposal, believes that the proposed regulatory text omits a critical qualification discussed by EPA in the proposal (e.g., preamble language regarding location of equipment "where it can be immediately accessed without jeopardizing a timely and effective response to any emergency." The commenter expressed concern that absence of specificity in the regulations may lead to placement of emergency equipment at locations that delay or hinder its use and strongly recommended that EPA explicitly include the "immediately access" in the final regulatory text (232/281).

Response (232/281):  EPA believes discussion in the final rule preamble is sufficient to convey the Agency's intent and notes that, regardless of qualifiers used in regulatory text, generators will be responsible for determining appropriate locations of required emergency equipment and that inspectors will be able to ask generators to justify selection of these locations. EPA adds that authorized states may elect to include clarifying regulatory text that addresses the commenter's concern.

Comment:  One commenter believed the proposed rule is written such that the requirements set forth in 40 CFR 262.252(a) through (d) potentially apply to all points of generation. The commenter asserted that this is extremely problematic for facilities with multiple points of generation, such as a research laboratory, and suggested a minor change in this regard within the introductory paragraph. The commenter noted that, despite EPA's stated intention to limit application of these regulations to activities that generate hazardous waste, the proposed rule continues to refer to "site personnel" in 40 CFR 262.252(a), therefore effectively making the requirement applicable to the entire "generator site." The commenter believed this requirement is more suitable only to CAAs and acknowledged that this is the current requirement but questioned if this requirement is necessary for all CAAs, noting that this requirement appears more suitable for application to CAAs that collect waste from all of a generator's SAAs  -  described by the commenter as more resembling a "mini-TSDF" in scope. The commenter also noted that the proposal to allow an LQG to determine the most appropriate locations for emergency equipment seems to conflict somewhat with the requirement in 40 CFR 262.252(b) that a telephone be "immediately available at the scene of operations" and requested that EPA clarify this communications requirement.  Along a similar line, the commenter noted that reference to a two-way radio is somewhat archaic and asked whether a cell phone would fulfill this requirement. The commenter added that, if a cell phone can be used for this purpose whenever the area is occupied, they would have no problem applying this requirement to any 90-day accumulation area. The commenter felt that compliance with the appropriate occupancy category in the International Fire Code is likely to provide equivalent protection to the requirement in 40 CFR 262.252(d).  To this end, the commenter indicated that regulators are not generally able to determine what constitutes "adequate volume and pressure" for generator waste accumulation locations as this is generally determined by: (1) connection to a municipal water supply or other significant source of water and/or (2) conformance to local fire codes. The commenter encouraged EPA to consider how best to articulate the requirement for engineered fire suppression and control systems in accumulation areas (78).

Response (78):  Besides the introductory paragraph, EPA did not propose or finalize any changes to the remainder of 262.252  -  or to parallel language for SQGs at 40 CFR 262.16(b)(8)(ii)  -  except that the Agency has decided not to replace "facility" with "site" in the regulations; rather, the Agency is retaining use of "facility" as explained elsewhere in the responses to comments. The Agency's intent in modifying existing regulations was to clearly identify that the requirement in question applies to areas where hazardous wastes are generated and accumulated under RCRA, as opposed to storage of chemicals and substances other than hazardous wastes that are regulated under different statutes. Having said this, the preparedness and emergency procedures in question do apply to hazardous waste at CAAs, SAAs and associated points of generation. Moreover, EPA believes it is not appropriate to make a distinction between CAAs such as those that receive hazardous wastes from many SAAs versus only a few SAAs (or a single SAA) because regulations must be sufficiently flexible to accommodate various types of facilities and hazardous waste management scenarios. As for the seeming contradiction between allowing generator flexibility in determining the appropriate locations of emergency response equipment in the introductory paragraph of 40 CFR 262.252 and 40 CFR 262.252(b), insofar as a telephone needing to be "immediately available at the scene of operations," EPA believes that discussions in the final rule preamble, along with the Agency's responses to other commenters included within this document, satisfactorily clarify this communications requirement, as well as address the commenter's question regarding use of cell phones. With respect to 40 CFR 262.252(d), EPA does not doubt the potential effectiveness of International Fire Code requirements or the commenter's statement regarding how "adequate volume and pressure" are determined for water supply. However, the Agency believes a more detailed discussion of engineered fire suppression and control systems is best left to authorized states, which may establish specific requirements beyond those set forth in federal regulations. 

Comment:  In order to provide greater clarity in distinguishing between a generator site and an area where hazardous waste is being managed, the commenter suggested a minor change to the introductory paragraph of 40 CFR 262.252. The commenter also requested that the proposed text regarding the generator's determining appropriate equipment locations be revised to agree with proposed text in 40 CFR 262.252(b), which would require some of this equipment (e.g., telephone) to be immediately available at the scene of operations, as opposed to any site location that the generator deems appropriate (123).

Response (123):  Based on other feedback from this commenter on the proposed rule, EPA presumes that the commenter's desire to distinguish between a "generator site" and an area where hazardous waste is being "managed" is to ensure that requirements apply only to areas where hazardous wastes are accumulated (i.e., CAAs) under RCRA, as opposed to areas where chemicals and substances other than hazardous wastes are stored. Preparedness and emergency procedures in question apply to hazardous waste at CAAs, SAAs and associated points of generation but not to storage of chemicals and substances other than hazardous wastes, which are regulated under different statutes. As for the need to revise proposed regulatory text (e.g., introductory paragraph of 40 CFR 262.252) to agree with proposed text in 40 CFR 262.252(b), EPA believes that discussions in the final rule preamble, along with the Agency's responses to other commenters included within this document, adequately address the commenter's concern.

Comment:  This commenter believed proposed §262.16(b)(8)(ii) was not clearly written, particularly as regards inclusion of language clarifying where required equipment must be kept, and noted that the parenthetical in this section appears to unintentionally exempt SQGs from having the required equipment if a storage area "does not lend itself for safety reasons to have a particular kind of equipment specified below." The commenter provided suggested new wording for this section (178).

Response (178):  Notwithstanding use of the parenthetical in proposed 40 CFR 262.16(b)(8)(ii) and the commenter's suggested revised wording, EPA believes the language, as proposed, is sufficiently clear regarding when and where emergency equipment must be kept.

Comment:  With respect to proposed §262.252 (introductory paragraph), which relates to LQGs, this commenter had a similar concern regarding the new language clarifying where required emergency equipment must be kept (178).

Response (178):  Notwithstanding use of the parenthetical in the introductory paragraph of proposed 40 CFR 262.252, EPA believes the language, as proposed, is sufficiently clear regarding when and where emergency equipment must be kept.

Comment:  One commenter stated that having equipment where waste is generated is an additional requirement and believed any changes should indicate only that the facility have emergency equipment available at or near the area of operations and available to address fires, spills or other emergency situations.  However, EPA notes that this commenter also seemed to support EPA's proposed revisions regarding emergency equipment at 40 CFR 262.16(b)(8) (214).

Response (214):  Although EPA recognizes that the Agency is now including SAAs and associated points of generation within the scope of preparedness and emergency procedures regulations, we believe such changes are necessary to further ensure protection of human health and the environment.

Comment:  Two commenters disagreed with EPA's proposed changes to regulatory text regarding location of required emergency equipment (217, 263). One commenter providing feedback on behalf of multiple member organizations indicated that one of its members does not believe it is necessary to provide generators the flexibility to determine the most appropriate locations within the facility to locate equipment necessary to prepare for and respond to emergencies (217). Another commenter stated that, while existing regulations require specific emergency equipment to be at the facility, proposed changes require that this equipment be located in all areas where hazardous waste is being generated or accumulated unless there exists justification for not having equipment in each of these areas. This commenter noted an added cost of paperwork associated with documenting justifications for the range of emergency equipment without demonstrable environmental benefit. This commenter also added that certain facilities have robust fire-protection systems, modern communication systems, spill kits at strategic locations where spills are likely (not everywhere wastes are generated) and internal procedures for emergency response in addition to the existing requirements for LQGs and SQGs (263).

Response (217, 263):  Based on comments received on the proposed rule, EPA has decided not to replace "facility" with "site" in the regulations; rather, the Agency is retaining use of "facility" as explained elsewhere in the responses to comments. The Agency's intent in modifying existing regulations was to clearly identify that the requirement in question applies to areas where hazardous wastes are generated and accumulated and to accord generators sufficient flexibility in locating equipment when satisfying this requirement. Notwithstanding other minor changes in regulatory text, we believe that the need for justification on behalf of the generator currently exists and note that it would be within the purview of inspectors to make inquiries regarding how location of equipment was determined. EPA realizes previous Agency guidance (i.e., RO 14758) indicated that preparedness and emergency procedures regulations, including development of contingency plans by LQGs, would only apply to 90-day accumulation units, otherwise known as CAAs. Irrespective of this guidance, EPA believes there are benefits to addressing areas besides CAAs, such as SAAs and associated points of generation. Throughout a facility, there may be many points of generation and associated SAAs from which hazardous wastes are routinely moved to CAAs; therefore, the potential for spills (as also noted by this commenter) exists during the accumulation and management process. Consequently, we believe that our final regulations at 40 CFR 262.252 for LQGs, as well as parallel language at 40 CFR 262.16(b)(8)(ii) for SQGs, which address these additional areas, will be beneficial in terms further ensuring protection of human health and the environment.

Comment:  One commenter indicated that language in the preamble to the proposed rule suggested the provision regarding required equipment applied not only to CAAs but also waste generation areas. The commenter noted that existing EPA guidance (i.e., RO 14758) makes it clear that this provision applies only to CAAs at LQGs and, by extension, SQGs (272). 

Response (272):  EPA realizes previous Agency guidance indicated that this provision, as well as other preparedness and emergency procedures, would only apply to CAAs. As stated elsewhere in EPA's responses to other commenters included within this document, the Agency has decided that these and other provisions should apply to CAAs, as well as SAAs and associated points of generation, at both LQGs and SQGs.

Comment:  One commenter suggested adding "mobile phone" as an acceptable communication device at 40 CFR 262.252(b) as long as reception in the area is reliable and where a land line is not feasible (280).

Response (280):  EPA believes that discussions in the final rule preamble, along with the Agency's responses to other commenters included within this document, satisfactorily address the commenter's question regarding use of a "mobile phone."

Response (overall):  EPA believes the final rule preamble and regulatory text, as well as the Agency's responses to other commenters included within this document, satisfactorily addresses all comments regarding 40 CFR 262.16(b)(8)(ii) and 40 CFR 262.252 for SQGs and LQGs, respectively.

Section 4.7.8 - Meaning of "immediate access"
 
Section 4.7.8:  Meaning of "immediate access" to communications or alarm systems [whether it's clearly understood or whether additional clarity is necessary]  -  Agency requested comment on the usefulness of modifying this language.

Comment:  Six commenters supported EPA's clarification of the meaning of "immediate access" to communications or alarm systems (77, 85, 123, 232/281, 248; 262). Comment:  One commenter noted that the parenthetical associated with the term "immediate access" should probably read "i.e." rather than "e.g.," as is currently written (85). Another commenter, while supporting the intent of the proposed revision in the context of internal communication for employees directly handling hazardous waste, is unsure whether the additional words "direct or unimpeded access" provide sufficient clarification of this issue. The commenter noted that generators have asserted that communication devices open to all employees in a facility would meet this standard.  The commenter suggests that EPA consider additional explanatory wording, such as "...direct or unimpeded access from the workstation where the hazardous waste activity is being performed..." (232/281).

Response (85, 232/281):  EPA believes the intent of regulatory text is clear despite the suggested editorial change. EPA also believes discussion in the final rule preamble is sufficient to convey the Agency's intent and notes that generators will be responsible for ensuring that they have immediate access to an internal alarm or emergency communication device; moreover, inspectors will be able to ask generators to provide clarification in this regard. EPA adds that authorized states may elect to include clarifying regulatory text that addresses the commenter's concern.

Comment:  One commenter stated that, under current RCRA regulations, some regulatory agencies have indicated that a land-line telephone must be located in the Central Accumulation Area (CAA) and that a cell phone is not an acceptable alternative. This commenter suggested that the list of devices should specifically include a cell phone and other wireless devices as being acceptable alternatives along with a telephone and two-way radio as this will prevent the unnecessary installation of land-line telephones in hazardous waste storage areas (187). Another commenter requested clarification whether a cell phone satisfies the requirement for immediate access to an alarm or communication device and also seemed to pose a question regarding cell phone use in an atmosphere where mixtures of flammable hazardous substances and air exceed the lower explosive limit (214). One commenter suggested adding "mobile phone" as an acceptable communication device at 40 CFR 262.254(b) as long as reception in the area is reliable and where a land line is not feasible (280).

Response (187, 214; 280):  EPA realizes that cell phones are a useful and widespread means of communication, however, as noted by another commenter, there may be situations, such as a widespread emergency, where cell phone use is compromised (e.g., no service available). EPA also takes note of the above commenter's statement regarding cell phone use and, as we presume, the potential for ignition of flammable vapors. The Agency adds that there may instances during an emergency where reliance upon a land-line phone, which would be considered an example of required equipment, may not be advisable at a CAA or any other area where hazardous waste is managed (i.e., hazards present at the location of a land-line phone). The Agency believes that cell phones should not be relied upon solely to satisfy this requirement but could work well in combination with other communication devices such as, for example, a two-way hand-held radio.

Comment:  One commenter stated that the practice in certain parts of industry is to maintain emergency equipment immediately outside of "permanently enclosed areas" designed to maintain a negative pressure for the collection of volatile organic compounds (to ensure compliance with the Clean Air Act). For this reason, the commenter had concerns regarding the proposal to define "immediate access" as "direct and unimpeded access" because inspectors might determine that such equipment is not "direct and unimpeded," even when it is "immediately accessible."  This commenter suggested that EPA affirm in the final rulemaking that an unlocked door or other entrance to a room does not "impede access" to emergency equipment (240).

Response (240):  Under the scenario described by this commenter (i.e., presence of "permanently enclosed areas"), which represents but one example of the types of facilities and hazardous waste management scenarios encountered at facilities, it would be advisable for emergency equipment to be located outside such areas. Indeed, final regulations at 40 CFR 262.16(b)(8)(ii) and 40 CFR 262.252 for SQGs and LQGs, respectively, allow a generator flexibility to determine the most appropriate locations within the facility to locate equipment necessary to prepare for and respond to emergencies. EPA also notes that requirements associated with ensuring immediate access to communications or alarm systems at 40 CFR 262.16(b)(8)(ii) for SQGs and 40 CFR 262.252 for LQGs would also apply.

Response (overall):  EPA believes the final rule preamble and regulatory text, as well as the Agency's responses to other commenters included within this document, satisfactorily address all comments regarding 40 CFR 262.16(b)(8)(iv) and 40 CFR 262.254 for SQGs and LQGs, respectively.
Section 4.7.9 - Posting information by telephone (SQGs)

Section 4.7.9:  Require certain information be posted "next to the telephone" [or in areas directly involved in the generation and accumulation of hazardous waste]
   
Comment: Six commenters agreed with the proposed changes to the phone posting requirements (85, 182, 217, 220, 232/281; 248). One commenter believed the posting of emergency contact information at hazardous waste generation/storage points and in public areas such as break rooms is the most logical choice for the proposed changes, also noting that most facilities allow their employees to have a personal device on their person and that, for this reason, personnel may not look for a landline to contact authorities in the event of an emergency (182). A commenter providing feedback on behalf of multiple member organizations indicated that one member believes emergency contact information should be posted at other areas in the facility, not just the generation and accumulation areas, but otherwise supports this proposed change for SQGs. Another member also believed the posting of emergency contact information at hazardous waste generation/storage points and in public areas such as break rooms is the most logical choice for the proposed changes  -  also noting that most facilities allow their employees to have a personal device on their person and that personnel may not look for a landline to contact authorities in the event of an emergency (217). One commenter supported EPA's proposed clarification of the location of emergency telephone information in proximity to hazardous waste handling activities. This commenter that, although "911" service is prevalent, some facilities still use telephone systems that require first dialing a digit (most commonly "9") to access an outside line prior to dialing "911" and that this procedure may not always be followed during an emergency.  The commenter also noted that many hazardous waste incidents at SQGs may fall into an "in-between" category needing quick involvement by trained facility staff but not requiring outside intervention in the form of public emergency response agencies. For this reason the commenter believed telephone posting of the emergency coordinator contact information is still appropriate and needed to avoid unnecessary activation of the public emergency response system for hazardous waste-related incidents that may be safely and fully handled by an SQG itself (232/281). Another commenter agreed that the proposed revision will clarify the requirements and address modern telecommunications equipment but believed that it is important to post information near where hazardous waste is generated and stored because: (1) dialing 911 will not connect the caller to emergency services at many facilities because a prefix digit must be dialed first; (2) several facilities have emergency response staff onsite and such emergency response staff are reached by dialing a non-911 number and (3) dialing 911 in an emergency may not be second nature to certain facility employees (248).

Response (182, 217, 232/281; 248):  EPA agrees with the points raised by these commenters and understands that generators would take into account factors such as facility-specific dialing procedures when complying with this provision. The Agency believes that proposed revisions offer additional flexibility and notes that nothing in the regulations precludes this information from being posted at other locations throughout a facility.
   
Comment: Three commenters believed EPA should reconsider the requirement to post emergency information "where hazardous waste is generated and accumulated" (99, 189; 242). Two commenters noted that the first step facility staff will take in the event of an emergency is evacuation, which would render such postings ineffective (99, 242). One commenter believed that it would be unsafe to require this information only be posted where hazardous waste is generated and accumulated and that the facility should be allowed to determine additional appropriate location(s) for posting the required information (189).

Response (99, 189; 242):  EPA notes that posting information where hazardous waste is generated and accumulated is an additional location option accorded by this proposed revision and adds that nothing in the regulations precludes this information from being posted at other locations throughout a facility.

Comment:  One commenter seemed to question the requirement to post information "next to the telephone" and next to the "areas where waste is generated." (214)

Response (214):  Proposed revisions state that information must be posted next to telephones or in areas directly involved in the generation and accumulation of hazardous waste; moreover, nothing preclude a facility for posting this information at other locations within a facility.

Comment:  Two commenters, noting that cell phones have become ubiquitous, requested the option of keeping emergency information on personal devices such as cell phones. (99, 242)

Response (99, 242):  EPA believes that nothing in the regulations precludes storing this information on cell phones; in fact, this practice would further ensure that information is available in the event an emergency.

Comment: One commenter noted that, during a widespread emergency (September 11, 2001 attacks cited as an example), cell phone reliability could be severely hampered by heavy call volume. (273)

Response (273):  EPA agrees that this possibility exists, which why cell phones should not be relied upon solely to satisfy the requirement for posting of information.

Comment: One commenter noted that, if an SQG already has an emergency plan that has this information readily available, then posting it next to the phone should not be required. This commenter further noted that, in the event of an emergency, the emergency responders will be contacted regardless of whether the emergency coordinator is present and the coordinator information is in the emergency response plan. The commenter discouraged EPA from making these practices mandatory in the regulations in order to be consistent with the Agency's goal of providing necessary flexibility for hazardous waste generators. (262)

Response (262):  EPA notes that existing regulations already mandated that information be posted next to the telephone and that proposed revisions offer additional flexibility to the generator. Nothing in the regulations precludes this information from being posted at other locations throughout a facility or otherwise made available.

Response (overall):  EPA is finalizing 40 CFR 262.16(b)(9)(ii) as proposed.
Section 4.7.10 - Cleanup by a contractor (SQGs)
 
Section 4.7.10:  Allow containment and cleanup to be conducted by a contractor
   
Comment: 12 commenters largely agreed with the proposed changes to allow SQGs to hire a contractor to perform any cleanup of a hazardous waste spill at their facility (85, 116, 131, 152, 174, 214, 220, 232/281, 240, 248, 262; 289). A commenter suggested adding language to clarify that contractors may assume liabilities typically assigned to generators if included in the terms of their contract (116). Two commenters stated that the generator is ultimately responsible for ensuring a proper response and cleanup (174, 214). Two commenters believed the existing regulatory language already allows for contractors to perform clean-up at SQGs (214, 232/281). A commenter added that the generator should provide the contractor with adequate information on the nature of the waste to allow the contractor to determine the correct worker protection, waste handling and containment measures (214). One commenter noted that the clarification allowing contractors to clean up waste releases particularly assists small communities that might not have the resources or infrastructure to otherwise do so  -  adding that this may prevent health hazards by allowing expedient removal of mishandled or spilled waste (289).

Response (85, 116, 131, 152, 174, 214, 220, 232/281, 240, 248, 262; 289):  EPA appreciates the statements and recommendations provided by certain commenters (116, 174, 214, 232/281; 289) regarding contractor liability, generator responsibility, the need to provide adequate waste-related information to ensure worker protection and resultant benefits to small communities, as well as the belief that existing regulations already allow contractors to perform cleanup.

Comment:  One commenter indicated that the proposed language appears to allow SQGs to solely rely on an outside contractor for the management of spills and that doing so (i.e., SQG waits for contractor to address as opposed to immediately undertaking response activities themselves) could delay spill response and be detrimental to the facility, environment and public health (207). 

Response (207):  While EPA understands the commenter's concern, the Agency believes that proposed language simply offers an SQG that opportunity to use contactors and does not in any way preclude the SGQ from responding fully or in part. The decision whether not to use a contractor rests with the facility, which has the choice to immediately address a situation if it so chooses.

Comment:  A commenter provided feedback for more than one its member organizations that indicated varying opinions regarding EPA's proposed change to existing regulations. There was support for EPA's proposed clarification that contractors can be used for site cleanups, although it was recommended that EPA consider adding language clarifying that contractors may assume liabilities typically assigned to generators, if included in the terms of their contract with a generator, such as waste characterization, management and transportation. It was also recommended that EPA clarify how contractors and LEPCs are expected to interact with one another within the context of emergency preparedness and planning. However, concern was expressed that the existing (original) language required the SQG to physically clean up the spill but that a regulatory agency (EPA or the states) would not take enforcement action if a contractor cleaned up the spill rather than the SQG. EPA's proposed change was not deemed necessary. A cautionary example was cited in terms of allowing all potential containment of hazardous waste to be contracted out, which involved a situation where a drum tips and leaks, with the leak heading towards a storm drain. In this case, it was implied that immediate action is preferable to stop/contain the release rather than calling a contractor and waiting for the contractor to arrive, which may not happen soon enough if the facility is located in a remote area (217).

Response (217):  EPA notes that the final rule is intended to convey that the facility has an option of whether or not to procure the services of a contractor to respond to spills. This decision rests with the SQG. 

Comment:  One commenter suggested that EPA should officially allow both SQGs and LQGs to contract spill cleanup services with third parties instead of maintaining trained in-house personnel (152).

Response (152):  EPA only proposed to allow use of contactors in the case of SQGs with the understanding that SQGs would hire a contractor to respond to spills. The Agency does not envision the same approach being taken by LQGs since, by their very nature, LQGs would be expected to employ in-house staff for this purpose.   

Response (overall):  EPA understands statements from certain commenters who supported the proposal to allow containment and cleanup by a contractor. In acknowledging these statements, the Agency believes that duties and responsibilities, as well as issues of liability associated with containment and cleanup, would be addressed as part of any contractual or other agreement entered into between the facility and its contractor. Therefore, the Agency is finalizing § 262.16(b)(9)(iv)(B) as proposed.
Section 4.7.11 - Online computer training (LQGs)

Section 4.7.11:   Technical Changes on Personnel Training Applicable to LQGs [proposal to allow generators to use online computer training, in addition to classroom instruction and on-the-job training, to complete the personnel training requirements]

Comment:  21 commenters supported the intent of EPA's proposal to clarify that online training is acceptable to meet hazardous waste generator training requirements (77, 85, 116, 262, 137, 159, 160, 174, 178, 189, 212, 213, 216, 217, 219, 225, 232/281, 240, 248, 260; 262).

Response (77, 85, 116, 262, 137, 159, 160, 174, 178, 189, 212, 213, 216, 217, 219, 225, 232/281, 240, 248, 260; 262):  EPA appreciates the commenters' support.

Comment:  A commenter reviewed the list of training topics highlighted in the proposed rule preamble and agreed that many would be very valuable in addition to the typical emergency response training, including completing hazardous waste manifests, managing accumulation areas, waste inventorying, and inspecting containers and accumulation areas. This commenter also reviewed the required training topics listed in 40 CFR 262.17(a)(7) and, with the exception of responding to groundwater contamination incidents, agreed that EPA has included appropriate topics for ensuring personnel are prepared to respond to emergencies, with the exception of responding to groundwater contamination incidents. The commenter noted that, although groundwater monitoring is required for landfills and land-based hazardous waste management units, most LQGs do not have such units and that groundwater monitoring is usually an ongoing responsibility of a facility's environmental manager  -  rather than an emergency response function. The commenter suggested that EPA might want to consider replacing the groundwater topic with one that is more likely an issue during an emergency response, such as responding to a hazardous waste release to surface water. (159)

Response (159):  EPA appreciates the commenter's suggestion but notes that the Agency did not propose changes to this portion of the regulations, namely, 40 CFR 262.17(a)(7(i)(C). However, facilities themselves are free to identify and include a training topic, such as hazardous waste releases to surface water, or any other training topics.  Authorized states may also elect to require inclusion of this and other training topics. 

Comment:  One commenter suggested EPA clarify that the following criteria must be met:  (1) records of electronic training must include all of the information currently required for the documentation of LQG training; (2) records of training must be complete, accurate and accessible on-site to hazardous waste inspectors during an inspection; (3) recordkeeping systems must have data integrity and security features so as to prevent them from being inappropriately altered, falsified, or lost and (4) provisions must be made for clearly identifying any persons who enter and/or modify data in the system  -  at a minimum, their first and last names. (178)

Response (178):  EPA appreciates the commenter's suggestions but notes that the Agency did not propose changes to this portion of the regulations, namely, 40 CFR 262.17(a)(7)(iv). However, facilities themselves are free to include these records requirements as part of their training records and authorized states may elect to make inclusion of these requirements mandatory. 

Comment:  A commenter suggested that another option for personnel training could be required reading of an EPA RCRA Training Module and online testing. (189)

Response (189):  EPA did not propose including additional training topics but appreciates this comment and suggests that facilities themselves are free to include this and other topics as part of training requirements and that authorized states may elect to make inclusion of additional training topics mandatory. 

Comment:  A commenter encouraged EPA to recognize that LQGs are in the best position to identify positions that are in need of training and that training should be limited to those personnel who specifically handle/control/manage hazardous wastes or plan responses to releases of hazardous waste at an LQG. This commenter added that other facility personnel should only be made aware of, and practiced in, evacuation and notification requirements for the facility. (216)
 
Response (216):  EPA appreciates this comment and notes that the applicability of personnel training at LQGs is discussed elsewhere in the Agency's response to comments received.
 
Comment:  This commenter noted that many states already allow for training, such as online training via computers, and allow verifiable electronic signatures to document completion of such training. (225)

Response (225):   EPA appreciates this comment and adds that authorized states may elect to identify other types of training, as well as the means of conducting and documenting completion of such training as part of RCRA requirements. 

Comment 232/281:  This commenter believed that EPA's proposal is still too restrictive and does not align with real-world training scenarios. The addition of the term "`online training" without a definition seems to clearly suggest computerized training from an external remote source. The commenter could not discern any reason why training developed by an LQG itself and provided to an employee "`in-house" in a prepackaged program, and thus consisting of "offline training" would not equally well meet the intended result of a hazardous waste employee's being versed in the technical information necessary to understand their duties and familiar with the site specifics necessary to carry out those duties in both normal and emergency operations  -  even though it would be excluded from the final proposed list of training methods. The commenter believed EPA's actual intent was to ensure that a complete training program is provided by an LQG to its employees, as opposed to unnecessarily limit or restrict the medium by which that training is provided. The commenter was not aware of any specific training method or medium that would be considered by the EPA or authorized states as inappropriate or non-compliant to the intent of the regulation, as long as it resulted in the required information being provided to the employee in an understandable, coherent, complete manner. The commenter believed that the clearest means to communicate this intent is not by listing explicitly allowed training mediums but instead to focus on the training syllabus itself; additionally, none of the current or proposed explicitly allowed training mediums is defined, thus creating ambiguity about what training methods would actually comply with the regulation. The commenter recommended that the EPA replace both the current and proposed list of explicitly allowed hazardous waste training mediums with a more inclusive phrase, such as "...Site personnel must successfully complete a program of direct or indirect training that teaches them..." with the phrase "direct or indirect" to include direct methods, such as on-the-job training or the related job shadowing, and  indirect methods, such as classroom, offline electronic, online electronic or paper package-based. (223/281)
 
Response (232/281):  EPA appreciates the commenter's recommendations and detailed explanation and notes that the Agency has defined "online training" in the final rule by way of including a parenthetical that specifically references computer-based and electronic training. It is not EPA's intent to restrict or otherwise exclude training options or media or to imply that training developed by an LQG and provided to its employees would not satisfy RCRA requirements. EPA agrees that it is the content of the training, rather than the medium, that is most important and also that generators need not restrict their training methods or media as long as it results in a properly trained employees.  EPA adds that authorized states are free to provide additional details in their regulations to accomplish this objective.

Comment:  One commenter stated that the reference to online training is too narrow as it implies training conducted over the Internet, while computer-based training is any course of instruction whose primary means of delivery is a computer (i.e., a computer-based training course may be delivered via software installed on a single computer, through a corporate or educational intranet or over the Internet as web-based training).  This commenter suggested replacing word "online" with "computer-based" to give additional training options (79).  Similarly, another commenter recommended EPA use "electronic training" instead of "online training" to allow, for example, computerized non-Internet based training. (152)

Response (79, 152):  EPA agrees with both commenters and believes that language in the final rule has satisfactorily addressed these comments.

Comment:  One commenter recommended EPA consider simplifying codified language rather than expanding it since, while online training is currently a popular teaching method, technology is changing rapidly and codified rules could become obsolete even before they are published. The commenter added that "instruction" is a very inclusive word that is independent of the mode of delivery. The commenter suggested deleting the word "classroom" from proposed regulatory text so that it reads "program of instruction or on-the-job training." The commenter also observed that, since the conjunction currently used is "or" rather than "and," EPA may wish to further edit proposed regulatory text to read "instruction and on-the-job training" to better reflect the intent of the requirement. (99)

Response (99):  EPA appreciates these suggestions but believes the final regulatory text is sufficiently clear so as to satisfactorily convey the intent of these requirements.   

Comment:  One commenter noted that training is already being provided by internet in addition to classroom and on-the-job training but added that contractor and computer training alone is not adequate and should be supplemented by facility-specific training to review the contingency plan, recordkeeping and inspection plans and operating equipment, especially related to operation and maintenance of tank systems and containment buildings. (214)

Response (214):  EPA agrees with this comment and notes that that facilities themselves are free to include the specific types of training mentioned and that authorized states may elect to require inclusion of these types of training. 

Response (overall):  The vast majority of commenters supported EPA's proposal to clarify that online training is acceptable to meet hazardous waste generator training requirements. EPA has considered these comments and is qualifying the term "online training" in the final rule at 40 CFR 262.17(a)(7)(i)(A) to allow for computer-based and/or electronic training options, which the Agency believes will accord the regulated community more training options for facility personnel.

Section 4.7.12 - Scope of applicability of training requirement (LQGs)

Section 4.7.12:  Scope of Applicability of Training Requirements (SQGs)

    EPA sought comment on whether the regulations should specifically identify positions at LQGs where hazardous waste training would be required and for which a written job description is necessary and what those areas should be.

Comment:  A commenter believed written job descriptions are only necessary for certain hazardous waste management responsibilities and stated that written job descriptions are appropriate for positions requiring an individual to: (1)  make a waste classification decision; (2) design a sampling plan; (3) develop a process or procedure for treatment in a container; (4) direct emergency response for incidents involving hazardous waste; (5) conduct required inspections of waste accumulation areas; (6) create waste manifests; (7) label or mark hazardous waste containers; (8) make decisions to utilize hazardous waste exemptions; or (9) make required regulatory reports or notifications. The commenter added that employees or contractors whose responsibilities are limited to placing waste in either an SAA or the initial bulk container or directing it to a 90-day tank, an exempt wastewater treatment system or other initial management unit or device do not require written job descriptions. In addition, the commenter recommended EPA ensure that employers are not required to maintain two separate job descriptions  -  one in their normal HR systems and one to ensure compliance with these provisions. (77) 

Response (77):  EPA appreciates the commenter's suggestions regarding areas of hazardous waste management where training and written job descriptions would be required but notes that, in the final rule, the Agency is not requiring this information. EPA also notes that the proposed rule did not contemplate creation of written job descriptions for staff who work at SAAs and that final rule does not include such a requirement. EPA's discussion of written job descriptions in the proposed rule, which remains unchanged in the final rule, is not intended to require employers to maintain separate job descriptions.  

Comment:  A commenter mentioned that this requirement refers to "site personnel" without limitation of applicability to personnel responsible for, or working at or near, a CAA and that, consequentially and importantly, this would mean that the training requirements of 262.17 would apply to anyone working at the generator's site.  The commenter requested EPA to revise this requirement to make it applicable only to those that are responsible for the management of hazardous waste. (78)

Response (78):  The final preamble and regulatory text make it clear that training requirements apply to RCRA hazardous wastes only at CAAs, while also recognizing that there are other portions of a facility where chemicals/substances other than hazardous wastes are managed and that these areas would not be subject to RCRA regulations.

Comment:  Regarding 40 CFR 262.17(a)(7)(i)(A), the commenter stated that the term "site personnel" is not defined and implies that a wide number and type of personnel require training  -  not just those that are responsible for management of hazardous waste  -  and that this lack of definition causes the term "ensures compliance with this part" to also be unclear. The commenter also asked whether the reference to "this part" means part 262. (78)

Response (78):  The final preamble and regulatory text make it clear that training requirements apply to RCRA hazardous wastes only at CAAs, while also recognizing that there are other portions of a facility where chemicals/substances other than hazardous wastes are managed and that these areas would not be subject to RCRA regulations.  The Agency also notes the reference to "this part" means 40 CFR part 262.

Comment:  Regarding 40 CFR 262.17(a)(7)(i)(B), the commenter stated that the term "relevant to the positions in which they are employed" makes sense when used in 40 CFR part 265, as it is clear which positions are being referred to (i.e. those related to hazardous waste management); however, in the context of "site personnel", this term is not clear. Many types of site personnel at a generator's facility might be interpreted to have one or more duties that could be considered "hazardous waste management procedures" and/or involve "contingency plan implementation." For instance, since administrative and support personnel are responsible for evacuating the facility if an alarm is sounded, this could be considered to be a step in "contingency plan implementation." The commenter believed that, without further clarification, this requirement is unclear to generators. (78)

Response (78):  The final preamble and regulatory text make it clear that training requirements apply to RCRA hazardous wastes only at CAAs, while also recognizing that there are other portions of a facility where chemicals/substances other than hazardous wastes are managed and that these areas would not be subject to RCRA regulations. Moreover, EPA also notes that the proposed rule did not contemplate creation of written job descriptions for staff who work at SAAs and that final rule does not include such a requirement. We believe that the final rule satisfactorily spells out responsibilities and training needs associated with "contingency plan implementation."

Comment:  Regarding 40 CFR 262.17(a)(7)(i)(D), the commenter stated that the allowance for OSHA training equivalency appears to be nearly inconsequential when coupled with the exception "provided that the overall site training meets all the conditions of exemption in this section." The commenter noted that most generator locations are likely to have site-specific contingency requirements that will not be adequately met by OSHA training. (78)

Response (78):  EPA understands the commenter's point but offers this exemption in cases where site-specific contingency requirements will, in fact, be adequately met by OSHA training.

Comment:  Regarding 40 CFR 262.17(a)(7)(iv), the proposed regulation requires documents and records to be maintained "at the site." In some cases, different "sites" may be located in close proximity to one another. For instance, a generator-leased facility owned by a third party (hence a separate "site" per 40 CFR 260.10) may be located near the facility owned by the same generator. Flexibility to allow environmental records (training records in this case) to be maintained in a single location for ease of maintenance and inspection should be acceptable. The commenter recommends EPA consider allowing a central, but local, location. (78)

Response (78):  EPA recognizes that the scenario described by the commenter (i.e., generator-leased facility owned by a third party) exists and believes that changing references from "site" to "facility" in the final regulations will address the commenter's concern. EPA agrees that there should be flexibility to allow training records to be maintained in a single location for ease of maintenance/inspection and believes proposed (and final) regulations accord this flexibility. However, to the extent that such records are maintained at multiple locations within a facility, the Agency does not foresee problems as long as these records are available for inspection.

Comment:  Regarding 40 CFR 262.17(a)(7)(v), the commenter believes that the requirement for generators to keep training records until closure of the "site" is new and burdensome, as the current requirement requires records to be kept until closure of the "facility" (i.e., the 90-day area). However, the substitution of the word "site" intimates that any large quantity generator must keep records until it goes out of business, perhaps many years after it ceases to generate hazardous waste. The commenter asked EPA to consider clarifying that records must only be kept for an individual 90-day area until three years after it closes, in order to reduce the recordkeeping burden. (78)

Response (78):  EPA believes that changing references from "site" to "facility" in the final regulations will address the commenter's concern. We believe the final rule makes it sufficiently clear that training records must only be kept for CAAs until three years after the facility closes and further note that this requirement would not apply to SAAs. 

Comment:  Regarding the applicability of personnel training, the commenter agreed with the areas of hazardous waste management identified by EPA as requiring personnel training and does not object to specifically stating these areas in the training requirements. The commenter recommended removal of the requirement for written job descriptions, noting that a facility list of personnel required to be trained and subsequent training records is much more valuable. Written job descriptions do not benefit the facility or inspectors. The commenter noted that it has never allowed personnel only working in SAAs to be exempt from training requirements and believes that these personnel should be required to undergo hazardous waste training relevant to their responsibilities. (85)

Response (85):  EPA notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. EPA also notes that the proposed rule did not contemplate creation of written job descriptions for staff who work at SAAs and that final rule does not include such a requirement. 

Comment:  The commenter noted that written job descriptions for personnel working with hazardous waste in CAAs and permitted TSDFs are currently required by a certain state's hazardous waste management regulations. The commenter also noted that discussion in the proposed rule preamble regarding personnel training states that the Agency has identified certain areas of hazardous waste management for which personnel training and a written job description should be required but that the preamble does not explain "maintains hazardous waste inventory" and unclear exactly which jobs this would encompass. The commenter added that, if this term is intended to include clerks who compile lists for quarterly reports or for permit revisions, then the need for hazardous waste management training unclear and the commenter would not agree with this proposal. The commenter does not agree with the proposal to provide personnel training and a written job description for anyone who could respond to emergencies that involve hazardous wastes. To this point, the commenter provided an example of a large facility with numerous facilities of varying types  -  including a national laboratory, a university operated ecology laboratory and nuclear materials processing facilities  -  where numerous personnel generate a wide variety of wastes at approximately 300 SAAs and 30 CAAs at any one time. Considering the complexity and extent of emergency planning, as well as the large number of emergency personnel at the facility in question, this proposed requirement would significantly expand the number of personnel to train each year; therefore, the commenter does not see added value in this additional training. The commenter also stated that proposed 40 CFR 262.17(a)(7)(i)(D) provides an exemption "for site employees that receive emergency response training pursuant to Occupational Safety and Health Administration regulations 29 CFR 191 0.120(p )(8) and 1910.120(q)...provided that the overall site training meets all the conditions of exemption in this section." The commenter believed it is unclear by the wording of the proposed regulation exactly what "all the conditions of exemption" are and that this wording needs to be clarified.  The commenter believes the training currently provided to site emergency personnel is sufficient and does not need to be expanded. (92)

Response (92):  EPA notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. EPA also notes that the proposed rule did not contemplate creation of written job descriptions for staff who work at SAAs and that final rule does not include such a requirement. EPA believes that the discussion of the OSHA exemption is sufficiently clearly worded. Under the final rule, training currently provided to site emergency personnel will be not be expanded.

Comment:  The commenter noted that, based on EPA's preamble discussion, it appears consideration is being given to require personnel training and a written job description for anyone who "manages hazardous waste in areas where hazardous wastes are accumulated", "maintains hazardous waste inventory," "conducts daily or weekly inspections of areas where hazardous waste are accumulated" and "plans or responds to emergencies that involve hazardous waste." Under the current standard, employers are able to make the determination as to who requires annual RCRA training based on duties assigned. This flexibility should be maintained. It would be inappropriate to blanketly impose training without consideration of site-specific circumstances. The commenter recommends that EPA maintain current training standards and not impose more specific requirements, thereby allowing the generator/facility to make the decision as to who is required to be trained. (103)

Response (103):  EPA notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. Under the final rule, training currently provided to site emergency personnel will be not be expanded and employers will still be able to make the determination as to who requires annual RCRA training based on duties assigned.

Comment:  The commenter seeks clarification from EPA on its proposal to "clarify" what positions within an LQG must receive hazardous waste management training and urges EPA to not only more clearly state which personnel are subject to the requirement but to limit the training requirement to those personnel that are handling hazardous waste. (117)

Response (117):  EPA appreciates the commenter's suggestion but notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. Other portions of a facility where chemicals/substances besides hazardous wastes are managed would not be subject to RCRA regulations. The Agency adds that employers may elect to include additional information as part of their training requirements and that authorized states may impose additional requirements in this regard.

Comment:  The commenter was in favor of regulations specifically identifying positions where hazardous waste training would be required and for which a written job description is necessary since this would simplify compliance with personnel training requirements. The commenter requests the addition of text to delineate which positions require hazardous waste training and to limit the scope of that required training to just the responsibilities of those positions that pertain to hazardous waste. The commenter stated that employees with waste management duties must be familiar with proper handling during emergency and normal operations and requested that the proposed text at 40 CFR 262.17(7) be revised to be consistent with the preamble text on this topic. The commenter also requested the addition of text to limit emergency response training requirements to just those actions expected by an individual in the event of an emergency, as detailed emergency response training should only be required for individuals that would resolve an emergency situation. (123)

Response (123):  EPA appreciates the commenter's suggestion but notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. Other portions of a facility where chemicals/substances besides hazardous wastes are managed would not be subject to RCRA regulations. EPA believes it unnecessary to add text to limit emergency response training requirements to just those actions expected by an individual in the event of an emergency; rather, employers will be in the best position to make this determination. The Agency adds that employers may elect to include additional information as part of their training requirements and that authorized states may impose additional requirements in this regard.

Comment:  Although the commenter agrees that all personnel handling/managing hazardous waste should be properly trained regardless of where (i.e., CAAs or SAAs) the waste is collected and stored, the commenter does not believe that the level of specificity proposed by EPA is necessary is concerned that the proposal could, in fact, have the opposite effect. For instance, there is a danger that personnel who do not fit within the proposed descriptions but who, nevertheless, have some role in handling or managing hazardous waste might not be covered by the training requirement. The commenter believes current requirements are sufficient to ensure that employees who have oversight and/or management responsibilities for hazardous waste are trained. (126/188)

Response (126/188):  The commenter's concerns have been addressed since the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required.

Comment:  A commenter stated that a requirement for a written job description for each position related to hazardous waste management may not be very straightforward to implement since a single employee may carry out a variety of hazardous waste management functions in addition to other duties. The commenter suggested that it may be more helpful to provide descriptions of key hazardous waste management functions with the title of the person responsible for performing them. (159)

Response (159):  In considering feedback from this commenter and other commenters, EPA realizes that establishing a written job description for each position related to hazardous waste management would not be a straightforward process. EPA appreciates the commenter's suggestion regarding providing descriptions of key functions but notes that the final rule does not include this information, nor does it identify specific hazardous waste management areas where training and written job descriptions would be required.

Comment:  The commenter concurred with the list of personnel that EPA identified in the proposed rule preamble who should receive the required hazardous waste training and suggests that EPA add to this list personnel who transfer hazardous waste from CAAs to loading/unloading areas and that load hazardous waste onto transport vehicles. (178)

Response (178):  EPA appreciates the commenter's suggestion but notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. The Agency adds that employers may elect to include additional information, such as that specifically mentioned by the commenter, as part of their training requirements and that authorized states may impose additional requirements in this regard.

Commenter:  The commenter believed that the training and documentation of hazardous waste personnel should occur for all employees that are directly involved with hazardous waste and the management of that hazardous waste. (182)

Response (182):  EPA notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required and adds that training documentation requirements remain unchanged.  Employers may elect to include additional information, such as that specifically mentioned by the commenter, as part of their training requirements and that authorized states may impose additional requirements in this regard.

Comment:  The commenter believes that the regulation should specifically identify positions at an LQG where hazardous waste training would be required and for which a written job description is necessary. (185)

Response (185):  EPA notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. Employers may elect to include additional information, such as that specifically mentioned by the commenter, as part of their training requirements and that authorized states may impose additional requirements in this regard.

Comment:  The commenter did not support identifying positions where specific types of training are required, noting that businesses struggle enough to define job titles and duties without needing to additionally try to pigeon-hole this information. (196)

Response (196):   For reasons such as that mentioned by the commenter, EPA has decided not to require facilities to identify specific hazardous waste management areas where training, as well as written job descriptions, would be required.

Comment:  The commenter sought clarification from EPA on the Agency's proposal to "clarify" what positions within an LQG must receive hazardous waste management training. The commenter noted that, under current regulations, only personnel handling wastes at CAAs are required to comply with training requirements.  The commenter notes that EPA's proposal in 40 CFR 262.17(a)(7) would require that "site" personnel must complete training, interpreting this to mean that personnel training requirements would not only be applicable to employees at CAAs but also persons who work in any area where hazardous waste is generated, which could include all persons working in all production and maintenance operations. The commenter was very concerned this would mean that literally everyone on the property would be required to obtain training. The commenter urged EPA to not only more clearly state which personnel are subject to training requirements but to limit these requirements to those personnel who are actively managing and/or handling hazardous waste. The phrase "actively managed" could include personnel with direct supervisory or other accountability for CAAs but, importantly, not all personnel simply only associated with or familiar with CAAs. The commenter added that training should also be task-oriented. (200)

Response (200):  The final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required and makes it clear that training requirements apply only to CAAs. EPA further believes that the final rule language, as well as discussions in the final rule preamble and elsewhere in the Agency's response to comments, will adequately allay this commenter's concerns.

Comment:  The commenter encouraged EPA to recognize that LQGs are in the best position to identify those positions that are in need of training and that training should be limited to those personnel that specifically handle, control, or manage hazardous wastes or plan responses to releases of hazardous waste at an LQG. Additionally, the commenter stated that other facility personnel should only be made aware of and practiced in evacuation and notification requirements for the facility. (213)

Response (213):  EPA notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required and makes it clear that training requirements apply only to CAAs. EPA adds that other portions of a facility where chemicals/substances besides hazardous wastes are managed would not be subject to RCRA regulations. EPA agrees that employers are in the best position to make this determination.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicates that one member agrees personnel training and written job descriptions should be required for personnel conducting the tasks illustrated by EPA in the proposed rule preamble.  Another member believed that the training and documentation of hazardous waste personnel should occur for all employees that are directly involved with hazardous waste and the management of that hazardous waste. Yet another member believed that defining who is required to receive training might be done best by defining this as a performance-based requirement similar to how it is done for SQGs. For instance, anyone managing hazardous waste should be trained to perform duties adequately and any training provided, including on-the-job training), should require simple documentation. More cumbersome recordkeeping requirements for training should be reserved for those employees who are providing the training to others, responsible for recordkeeping (maintaining manifests, weekly inspection documentation, waste determinations, etc.), conducting waste determinations, and signing manifests. All other positions can be covered by the simpler performance-based training, where job descriptions/titles and other information are not really contributing to compliance with the regulations. (217)

Response (217):  EPA appreciates the commenter's suggestions and agrees with many of the concepts presented but notes that the final rule does not identify specific hazardous waste management areas where training and written job descriptions would be required. The Agency believes recordkeeping and documentation requirements for LQGs, as stated at 40 CFR 262.17(a)(7)(iv), are sufficient. We recognize that SQGs are not required to have an established training program, although they must ensure that employees handling hazardous waste are familiar with proper handling and emergency procedures. This requirement, which remains unchanged and now appears at 40 CFR 262.16(b)(9)(iii), could be construed to represent a performance-based requirement. EPA notes that employers may elect to include additional information, such as that specifically mentioned by the commenter, as part of their training requirements and that authorized states may impose additional requirements in this regard.

Comment:  This commenter did not support regulations specifically identifying positions where hazardous waste training would be required and for which a written job description is necessary as job descriptions vary significantly depending on departments, locations, companies, regions and industries, as well as being a function of time and modes of operation (i.e., normal operation versus emergency). The regulations need to give generators flexibility in job responsibilities to better respond to changes and requiring written job descriptions limits this flexibility and, therefore, decreases a company's ability to respond efficiently. (220)

Response (220):  For the reasons cited by this commenter, as well as feedback from other commenters, EPA decided that the final rule would not include a requirement for identifying specific hazardous waste management areas where training and written job descriptions would be necessary.  

Comment:  The commenter opposes an attempt to identify through regulations what jobs require RCRA training as this would restrict the ability of the generator to manage their business by removing the flexibility needed to appropriately manage staff and train employees appropriately based on their specific duties. The commenter added that this undoubtedly would confuse rather than clarify the expectations of the generator regarding employee training.  (225)

Response (225):  For the reasons cited by this commenter, as well as feedback from other commenters, EPA decided that the final rule would not include a requirement for identifying specific hazardous waste management areas where training and written job descriptions would be necessary.
 
Comment:  The commenter supported specifically identifying positions at LQGs where hazardous waste training would be required and for which a written job description is necessary and what those areas of responsibilities should be. In addition to the five areas of responsibility identified in the proposed rule preamble, the commenter suggested including the following additional areas:  (1) anyone responsible for recordkeeping (e.g., evaluation documentation, personnel training records, weekly inspection documentation, and manifest documents) and (2) anyone responsible for ensuring that personnel training is accomplished. The commenter also suggested that EPA consider requiring training and documentation for the person assigned overall responsibility for the hazardous waste management program ("Program Manager'') and at least one "Backup Program Manager." In the commenter's experience, a common cause of violations is the prolonged absence of the person in charge of directing the hazardous waste program, due to such causes as termination of employment, retirement, illness and many other reasons, and the lack of someone to assume this role to ensure that employees continue to maintain compliance. Though this may seem obvious, the commenter's experience is that not all generators understand the necessity for such trained individuals and that it is not unusual to find a generator that does not have documented training for program managers and backups. The commenter recommended that EPA make it an explicit requirement that someone, with documented training to perform these duties, be assigned overall responsibility to serve as a hazardous waste regulatory manager and that at least one person who is also so trained be assigned as a backup. (229)

Response (229):  EPA appreciates the commenter's willingness to share its experiences and also the suggestions provided.  Based upon feedback provided by other commenters, EPA decided that the final rule would not include a requirement for identifying specific hazardous waste management areas where training and written job descriptions would be necessary. In saying this, EPA is sensitive to the situations of non-compliance identified by the commenter and would encourage employers to act upon the commenter's suggestions. Furthermore, we note that authorized states may impose additional training requirements, including but not limited to those identified by the commenter.

Comment:  This commenter did not support the potential for EPA to, by regulation, explicitly identify the positions that would require hazardous waste training. The commenter is concerned that, even with an "includes but not limited to" disclaimer, LQGs could easily misinterpret this and direct their attention only to the explicitly listed positions, thereby excluding many employees with legitimate hazardous waste duties from the training requirement. The commenter has observed that, when an explicit list is promulgated, even if intended to be a starting point and not all-inclusive, the natural tendency is to focus solely on the list and forego considering outliers or less common occurrences. The commenter has further observed that the great majority of LQGs can readily identify all employees with hazardous waste-related duties without provision of an explicit list in regulations and those LQGs that need assistance have available to them many non-regulatory assistive and guidance publications from EPA, authorized states, consultants and industry associations. (232/281)

Response (232/281):  EPA appreciates the commenter's observations.  Based upon feedback provided by this commenter and other commenters, EPA decided that the final rule would not include a requirement for identifying specific hazardous waste management areas where training and written job descriptions would be necessary. EPA agrees that employers should be in the best position to identify employees and associated positions with hazardous waste-related duties that should receive training and further agrees that there are resources available to employers in this regard in case any questions arise.

Comment:  The commenter discourages the agency from mandating how job descriptions are maintained, as described in the proposed rule preamble. While the commenter believes the proposal is sound clarification of who should receive training, the commenter suggests that it need not be codified in the contingency plan or in particular job descriptions. In surveying its members, the commenter noted that it appears most company environmental managers utilize a training matrix and/or checklist to ensure that personnel involved in these tasks receive and have satisfied their training requirements. Rather than encroach on the human resource department to track and ensure that this information is part of job descriptions, the commenter instead recommends using a "central checklist" to track personnel that must receive training and documenting that these personnel have satisfied those requirements would be more practicable than the proposal to include this information as a requirement. The commenter notes that, at most, documentation that training has been received is all that is necessary, further adding that any requirement necessitating periodic revisions to the contingency plan should be avoided. (240)

Response (240):  EPA appreciates the commenter's thoughts. Based upon feedback provided by this commenter and other commenters, EPA decided that the final rule would not include a requirement for identifying specific hazardous waste management areas where training and written job descriptions would be necessary. The Agency notes that employers in addition to those surveyed by the commenter may elect to use a "central checklist" and that authorized states may impose additional requirements in this regard.  The Agency also agrees that documentation that training has been received would suffice.  We believe that the training requirements set forth in the final rule will not unnecessarily result in revisions to the contingency plan.

Comment:  This commenter did not believe it appropriate that regulations specify exactly which positions require training and would prefer that the list shown in the proposed rule preamble be presented as a minimum requirement, making it clear that the generator must evaluate the staff and job tasks at its facility to determine who needs to be trained. For example, if a hazardous waste storage area is on the loading dock, staff that work on the loading dock may not handle or interact with hazardous waste, although their job places them in the vicinity of the storage area and, therefore, they may be the first to observe a spill or leak. They should be trained to recognize a spill or leak and what steps to take to notify the appropriate personnel or to evacuate the area. The commenter noted that it may be helpful if the regulations make it clearer that training should be specific to the job task  -  not all staff need the same level of training. In the example of the loading dock workers, the training should be very focused and minimal. The commenter suggested that possible alternative language could indicate that, at a minimum, staff involved in performing the following responsibilities must be trained: (1) complete and/or sign the hazardous waste manifest; (2) manage hazardous waste in areas where hazardous wastes are accumulated; (3) maintain hazardous waste inventories; (4) conduct daily or weekly inspections of areas where hazardous wastes are accumulated and (5) plan or respond to emergencies that involve hazardous wastes. The commenter noted that additional staff that may require training include, but are not limited to staff that move, manage or prepare hazardous waste for shipment, as well as staff that would reasonably be expected to be exposed to hazardous waste. (248)

Response (248):  EPA appreciates the loading dock example provided as an illustrative point and believes this underscores the need to have generators identify training needs for employees, including the particular employees and associated positions for which training is required and the specific types of training required. We would encourage LQGs to make use of this information and add that authorized states are not precluded from including such information in their hazardous waste regulations.

Comment:  The commenter believes that requiring training for each written job description has the potential to cause flexibility issues in work assignments and believes that these should not be requirements but voluntary guidelines. (262)

Response (262):   For the reasons cited by this commenter, as well as feedback from other commenters, EPA decided that the final rule would not include a requirement for identifying specific hazardous waste management areas where training and written job descriptions would be necessary.  

Response (overall):  Taking into account all comments received, EPA has decided not to revise 40 CFR 262.17(a)(7) to identify areas of hazardous waste management for which personnel training and a written job description are required.

    EPA sought comment on whether personnel involved in handling or managing hazardous wastes in SAAs should be required to undergo hazardous waste training [current Agency guidance at RO 14703 excludes staff working in satellite accumulation areas from the training requirements] 

Comment:  Given the fact that most generators of hazardous waste at SAAs are thoroughly familiar with the process and resulting hazardous waste, the level of training required should not be the same level as required for personnel working in CAAs where the workers may lack this intimate knowledge of the waste. By complying with the container management standards already required to be eligible for satellite accumulation, as well as the newly proposed separation of incompatible wastes, the commenter believes these workers are adequately trained and do not need to be subjected to additional training. (68)

Response (68):  EPA agrees with this commenter and notes that, consistent with current EPA guidance, the final rule does not require staff at SAAs to undergo hazardous waste training, although the Agency believes that staff working at SAAs should be adequately trained to properly handle the types of wastes encountered as part of the job. 

Comment:  The commenter noted that a certain state's hazardous waste management regulations require its facility to train personnel working with hazardous waste in SAAs. However, this requirement is not required annually; rather, it is required to be repeated only if the nature of the waste accumulated in the SAA changes. The commenter stated that proposed wording of 262.17(a)(7)(i) requires personnel working with hazardous waste in an SAA or a 90-day area (CAA) to be trained annually. The commenter did not agree that annual training for SAA personnel is necessary and believed it is an unnecessary burden on waste generators. (92)

Response (92):   EPA agrees with the commenter and adds that the Agency has decided SAA personal need not be required to undergo any hazardous waste training. Having said this, we note that authorized states may impose additional training requirements for employees who work at SAAs.  Similarly, LQGs may also (and very likely do) decide to establish training requirements for staff who work at SAAs, commensurate with their job duties and responsibilities.  Although the Agency would encourage this, we are not including a training requirement for employees who work at SAAs in the final rule.  

Comment:  The commenter believed personnel involved in handling or managing hazardous wastes in SAAs should be required to undergo hazardous waste training. (108)

Response (108):  EPA understands this commenter's position but, based on feedback received from other commenters, we have decided not to require employees at SAAs to undergo hazardous waste training.

Comment:  The commenter strongly urged EPA to continue with the Agency's current guidance that excludes staff working in SAAs from the RCRA training requirements. Adding this requirement will create an unnecessary recordkeeping burden, particularly for large and diverse institutions such as universities with hundreds of generating sites and large and transient populations. The commenter noted that it is unreasonable to expect SAA staff to be competent to make a hazardous waste determination and it is unreasonable to expect Environmental Health and Safety staff to make determinations prior to a waste being generated, especially in situations such as research laboratories. (121)

Response (121):  EPA appreciates the rationale provided by the commenter and believes that the types of training that SAA staff receive should be dependent, in large part, on the type of wastes with which the customarily deal.  We believe the LQG would be in the best position to make such a determination and that any questions regarding necessity and adequacy of training could be posed to regulators and others such as industry groups. Therefore, consistent with current EPA guidance, the final rule does not require staff at SAAs to undergo hazardous waste training.  

Comment:  The commenter requests the addition of text to this proposed rule to specify that training is needed for only those employees working at accumulation areas, as opposed to all site employees. Without this distinction, training requirements at 40 CFR 262.17 would apply to all site employees  -  not just those working at or near CAAs. (123)

Response (123):  Assuming that the commenter's concern applies to training at SAAs (as opposed to CAAs), EPA has addressed this concern in the final rule and rule preamble, as well as in the Agency's responses to comments  -  the final rule does not require staff at SAAs to undergo hazardous waste training. 

Comment:  The commenter stated that workers performing operations in the area of an SAA are typically there to undertake specific, discrete tasks according to facility operating procedures or specific instructions and that, while these workers must be aware of the risks associated with any waste generated, there is no need for them to be trained on the full scope of the RCRA hazardous waste management requirements. Compliance with OSHA standards and general safety precepts is sufficient. (126/188)

Response (126/188):  EPA agrees. Consistent with current Agency guidance, the final rule does not require staff at SAAs to undergo hazardous waste training, although we would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job. 
 
Comment:  This commenter would not agree with a requirement for personnel involved in handling or managing hazardous waste at SAAs to undergo hazardous waste training. Currently, there are no requirements for training for employees managing or handling hazardous waste at SAAs. The amount of hazardous waste at SAAs is limited and is under the control of the operator. The commenter notes that the operator already receives training relative to the wastes at the areas where they work, which would include safe handling, management and emergency response for the materials in their area of responsibility including the generation of waste. Therefore, the commenter believes additional for these operators is redundant and an undue burden, particularly for smaller facilities and those who operate SAAs only. (131)

Response (131):  Consistent with current EPA guidance, the final rule does not require staff at SAAs to undergo hazardous waste training, although the Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job.  We also note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs. 

Comment:  The commenter believes EPA should not require training of employees at SAAs. The commenter notes that proposed rule preamble discussion ignores the reasons why EPA originally excluded SAA these employees from training requirements and why the Agency has maintained this exclusion for over 30 years. The commenter went on to discuss at length and in much detail the creation of the satellite accumulation rule in 1984, including EPA discussions regarding why it was unnecessary to require training for employees in these areas. The commenter believes that personnel training at SAAs is no more necessary today than in 1984. The commenter also asserted that Congress clearly intended RCRA not interfere with manufacturing processes (or their equivalent in the retail sector described by the commenter as normal handling of consumer products), adding that SAA, by definition, are at or near the points of waste generation and, as such, are integral to operations that Congress said should not be interfered with. The commenter noted that, even if training for personnel at SAAs could be justified for other industries, it cannot be justified for the retail sector, adding that, in retail stores, not only do the satellite areas contain only small amounts of wastes, but those wastes are the same materials that employees unloaded from boxes and stocked onto shelves as products. The commenter further noted that these wastes are also identical to the materials that the employees  -  and the general public  -  would encounter if the products became wastes at home. Because the wastes at retail facilities are not "exotic things" with which retail employees would have no familiarity and would be present only in very small quantities at SAAs, employees operating in these areas should not require specialized hazardous waste training. (168)

Response (168):  EPA appreciates the commenter's discussion.  In the context of the retail sector, the Agency is curious how SAAs would come into play, particularly for larger stores, since it is presumed that any unused/intact consumer goods that become unsalable and have been determined at the store to be wastes would be managed at CAAs  -  even at SQGs.  Moreover, wastes from routine maintenance activities and cleanup of spilled materials, as well as damaged/leaking products no longer considered commodities and "unknowns" (i.e., item contents cannot be identified) would be managed at CAAs.  Regardless, consistent with current Agency guidance, the final rule does not require staff at SAAs to undergo hazardous waste training, although the Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job. We also note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter supports the adoption of the criteria created by the three north-eastern states, including the additional criterion for persons who routinely manage or handle hazardous wastes within SAAs and other hazardous waste generation areas. (174)

Response (174):  EPA understands this commenter's position but, based on feedback received from other commenters, we have decided not to require employees at SAAs to undergo hazardous waste training.  The Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and notes that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter, noting that EPA's current interpretation is that such personnel are not subject to training requirements, believes that it would be appropriate for personnel managing waste at SAAs to be trained, at least to the extent that it is relevant to their specific hazardous waste management activities. (178)

Response (178):  EPA understands this commenter's position but, based on feedback received from other commenters, we have decided not to require employees at SAAs to undergo hazardous waste training. The Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and notes that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter believes that employees who work near SAAs should have required hazardous waste training. (182)

Response (182):   EPA understands this commenter's position but, based on feedback received from other commenters, we have decided not to require employees at SAAs to undergo hazardous waste training. The Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and notes that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  This commenter strongly urged EPA to continue with the Agency's current guidance that excludes staff working at generation points and in SAAs from the RCRA training requirements and stated that adding this requirement will create an unnecessary recordkeeping burden, particularly for large and diverse institutions such as universities with hundreds/thousands of generation points and large/transient populations. As it currently exists, all staff and students are taught how to identify physical and health hazards of the chemicals that they work with or near in accordance with OSHA's Hazard Communication and/or Laboratory Standards. In addition, staff are also trained in general emergency preparedness and response (e.g., actions to take in the event of a fire or other emergency). The commenter added that internal training related to waste management procedures and requirements for generating and collecting waste at generation points and SAAs is already provided, further adding that this information is directly transferrable to wastes and adequately informs SAA operators to work in a safe manner. The commenter also stated that generators already have incentive to inform SAA staff of applicable RCRA regulations requiring closed and labeled containers as a matter of ensuring compliance and that these requirements are routinely assessed during inspections in a performance-based manner, which is a process the commenter believes should continue.  The commenter believed that to require formalized training and documentation of such training would largely be a paperwork-driven exercise with little or no added benefits. (183)

Response (183):  Based on feedback provided by this commenter and other commenters, EPA has decided not to require employees at SAAs to undergo hazardous waste training. The Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and understands that such training is provided by generators. Authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter stated that proposed regulations do not specifically address the training requirements for individuals working in various areas (i.e., SAAs versus CAAs), which will cause confusion for both generators and regulators. Large universities can have more than one thousand individual SAAs throughout their campuses, each managed and staffed by different individuals. These individuals are currently trained on the following hazardous waste management topics: (1) collection of appropriate wastes; (2) labeling & identification; (3) container management and (4) segregation of incompatible wastes. The commenter notes that current training requirements for individuals working in SAA were clarified in the Federal Register (49 FR 49570; December 20, 1984), in which EPA stated, "EPA believes that since only one waste will normally be accumulated at each satellite area and since only limited quantities are allowed to accumulate, contingency and training plans are not necessary." This clearly indicates training is only required for individuals managing hazardous waste outside of an SAA (i.e. CAA). The expectation to provide and document detailed hazardous waste training for more than one thousand individuals working only at SAAs is unreasonable and places undue burden on generators. The commenter believes training requirements should remain as stated in the above mentioned excerpt of the Federal Register. (187)

Response (187):  EPA believes the discussion in the final rule preamble, along with regulatory text in the final rule and discussions in the Agency's response to comments, make it clear that employees at SAAs are not required to undergo hazardous waste training; as such, this will effectively allay concerns expressed by the commenter. 

Comment:  The commenter believed training for personnel involved in management of SAAs appears appropriate and so the proposed rule should include requirements for training SAA personnel.  However, the commenter believed it unlikely that requiring a written job description for these personnel would provide any benefit to the facility or regulators. (189)

Response (189):  EPA appreciates the commenter's position but, based on feedback received from other commenters, the Agency has decided not to require employees at SAAs to undergo hazardous waste training. We would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs. We also add that providing a written job description for these personnel was not contemplated as part of the proposed rule.

Comment:  This commenter strongly encouraged EPA to continue with current guidance that excludes staff working in SAAs from training requirements. The commenter stated that all faculty and staff are taught to identify physical and health hazards of the chemicals they work with, as well as general emergency preparedness and response. This information is used in determining the associated hazards of generated waste. The commenter noted that it employs staff of specifically trained personnel to make this determination after the waste is moved to the CAA, where staff possess the knowledge and advanced training to make the most accurate and safe assessment based on generator knowledge and recurring waste streams specific to research. The commenter believes that requiring formalized RCRA training in these areas would largely be a paperwork driven exercise with no added benefit. (209)

Response (209):  Based on feedback provided by this commenter and other commenters, EPA has decided not to require employees at SAAs to undergo hazardous waste training. The Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and understands that such training is provided by generators. Authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter indicated that previous EPA interpretations (49 FR 49570, dated December 20, 1984) indicated that SAAs were not included as part of contingency planing and that staff at SAAs needed only OSHA training, as opposed to a job title, position description and training. (214)

Response (214):  Consistent with current EPA guidance, the final rule does not require staff at SAAs to undergo hazardous waste training, although the Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job.  We also note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that employees who work in satellite accumulation areas should have required hazardous waste training. (217)

Response (217):  EPA appreciates the commenter's position but, based on feedback received from other commenters, the Agency has decided not to require employees at SAAs to undergo hazardous waste training. We would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  This commenter believed that personnel involved in handling or managing hazardous wastes in SAAs do not need specific training beyond general awareness of hazardous waste so as to know the associated risks. General workers do not need to have the level of training that an employee working in a CAA needs. The risks from hazardous waste in an SAA are much less than that in a CAA, therefore, additional training is not necessary and, in fact, would be overly burdensome to generators. (220)

Response (220):  Based on feedback provided by this commenter and other commenters, EPA has decided not to require employees at SAAs to undergo hazardous waste training. The Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and notes that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  This commenter believed that training requirements should not apply to SAAs and personnel working near these areas and that to apply these requirements to SAAs would be a reversal of EPA's position on SAAs as stated in 1984 rulemaking citing Agency statements at the time  -  "EPA believes, however, that since only one waste will normally be accumulated at each satellite area and since only limited quantities are allowed to accumulate, contingency plans and training plans are not necessary. [49 FR 49568 (emphasis added)]" The commenter also stated that training about materials being handled by personnel is required under other programs, such as OSHA and others. The commenter believed there is no reason to also have a separate RCRA requirement. (224)

Response (224):  Based on feedback provided by this commenter and other commenters, EPA has decided not to require employees at SAAs to undergo hazardous waste training, although the Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job. This could include training provided under other programs to the extent such training is germane to the job duties and responsibilities for the particular wastes being managed at SAAs.  Although there is no separate RCRA requirement for training at SAAs, we note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter believed employees that simply generate waste for satellite accumulation should not be required to have a written job description. The commenter noted that, in cases such as automobile dealerships, hazardous wastes at SAAs are aerosol cans and non-dripping wipes and that management of these types of wastes does not justify extensive training and recordkeeping. The commenter opposes requiring training for personnel in SAAs and opposes such annual training requirements for employees who occasionally generate small quantities of hazardous waste and place it in a container  -  asserting that there were not cases cited indicating that a lack of formal RCRA training, with all the implied paperwork, is justified for SAAs. (225)

Response (225):  EPA appreciates the commenter's discussion of the situation encountered under this particular generator scenario. Based on feedback provided this commenter and other commenters, the Agency has decided not to require employees at SAAs to undergo hazardous waste training. We would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs. Regarding the commenter's statement that lack of training is not justified, we note that certain other commenters have indicated that training is important for employees who work at SAAs. We also add that providing a written job description for these personnel was not contemplated as part of the proposed rule.

Comment:  The commenter encouraged EPA to require training for personnel managing waste at SAAs as violations in SAAs can also result in appreciable threats to human health and the environment and training would tend to reduce the occurrence of these violations. (229)

Response (229):  EPA appreciates the commenter's position but, based on feedback received from other commenters, the Agency has decided not to require employees at SAAs to undergo hazardous waste training. We would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter noted that personnel in SAAs are already trained in the hazards of the chemicals they work with as part of the OSHA HAZCOM Standard or the OSHA Laboratory Standard and therefore do not need hazardous waste training. The commenter added that waste chemicals produced in the SAA should have the same hazards as the virgin product with which SAA personnel are already familiar. The commenter believes that requiring training of SAA personnel would defeat the purpose of an SAA; therefore, the current regulation of excluding staff in SAAs is appropriate and does not need to be changed. (230)

Response (230):  Based on feedback provided by this commenter and other commenters, EPA has decided not to require employees at SAAs to undergo hazardous waste training, although the Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job. This could include training provided under other programs to the extent such training is germane to the job duties and responsibilities for the particular wastes being managed at SAAs.  Although there is no separate RCRA requirement for training at SAAs, we note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter supported the potential to require LQG  -  and for identical reasons  -  SQG personnel handling hazardous waste only in SAAs to be subject to the same hazardous waste training regulations as any other employees with hazardous waste-related duties. For equivalent reasons to those presented by the commenter regarding the potential applicability of emergency preparedness requirements to SAAs, the commenter strongly believes that no reasonable justification exists to exclude such employees from hazardous waste training. The commenter has observed that, as commonly the employees most directly responsible for generating and first placing hazardous waste into any accumulation containers, the success of the hazardous waste program at any generator lies primarily with SAA employees. An employee working solely with SAA hazardous waste containers who misidentifies a hazardous waste or who places a hazardous waste into the wrong container will likely cause that hazardous waste to be mismanaged not only throughout its time at the facility but even through disposal  -  despite well-trained "standard accumulation" (CAA) employees elsewhere in the facility. The commenter believes evaluation and identification of hazardous wastes is the foundation of proper hazardous waste management and that a spill of hazardous waste from a container at an SAA is likely to be smaller and more easily contained/cleaned if the directly-involved employee is trained in hazardous waste handling appropriate to their job duties, as opposed to waiting until "standard accumulation" employees respond. The commenter has also observed that SAA containers are those most often repeatedly opened and closed while waste is being added and thus are those most likely to be the source of small, relatively easily contained and cleaned up spills or that, for containers left open, would pose a risk to non-handling employees in the near vicinity. The commenter recommends that the current exclusion of LQG and SQG employees handling only SAA containers be rescinded and that such employees be subject to the same hazardous waste training expectations as any other LQG employee with hazardous waste-related duties. In making this recommendation, the commenter noted that it not suggesting or requesting that SAA employees be required to receive any hazardous waste training that is not directly related to the needs of their normal job duties or emergency situations. For example, there may be no reason to train an SAA employee in how to manage hazardous waste manifests or how to evaluate hazardous wastes produced from chemicals or by processes that are not part of their normal or emergency duties  -  even if such chemicals/processes are present in other locations of the same facility. (232/281)

Response (232/281):  EPA appreciates the commenter's position but, based on feedback received from other commenters, the Agency has decided, consistent with existing Agency guidance, not to require employees at SAAs to undergo hazardous waste training. Regarding the commenter's suggestion that this training requirement also apply at SQGs, we note that SQGs are not required to have an established training program for either CAAs or SAAs, although they must ensure that employees handling hazardous waste are familiar with proper handling and emergency procedures. The Agency did not propose to add training requirements for staff at an SQG who manage SAA wastes; therefore, this SQG training "requirement" remains unchanged and now appears at 40 CFR 262.16(b)(9)(iii). Having said this, EPA would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs. Such requirements could be extended to SAAs at SQGs. Finally, as clearly noted in the final rule preamble and regulatory text, as well as in responses to comments, CAAs, SAAs and associated pints of generations are subject to emergency preparedness requirements.

Comment:  This commenter supports requiring staff involved in handling or managing hazardous waste in SAAs to undergo appropriate hazardous waste training and have documented job descriptions. (248)

Response (248):  EPA appreciates the commenter's position but, based on feedback received from other commenters, the Agency has decided not to require employees at SAAs to undergo hazardous waste training. We would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and note that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Comment:  The commenter believes that requiring training for personnel involved in handling hazardous waste in SAAs to undergo hazardous waste training has the potential to cause flexibility issues and believes that these should not be requirements but voluntary guidelines. (262)

Response (262):  Based on feedback provided by this commenter and other commenters, EPA has decided not to require employees at SAAs to undergo hazardous waste training. The Agency would encourage staff working at SAAs to be adequately trained to properly handle the types of wastes encountered as part of the job and notes that authorized states may (and sometimes do) impose additional training requirements for staff who work at SAAs.

Response (overall):  Taking into account the differing opinions of commenters, the existence of EPA guidance on this point and the desire to maintain flexibility, the Agency has decided not to require training for staff at SAAs. However, EPA would encourage all generators to take appropriate steps to ensure that all employees who work at areas where hazardous waste is accumulated, including at SAAs, or are otherwise involved in hazardous waste management receive sufficient training to ensure that they are familiar with proper handling and emergency procedures.


Section 4.7.13 - Applying preparedness/planning revisions to 264 & 265

Section 4.7.13:    Applying Emergency Planning and Procedures Revisions to 40 CFR parts 264 and 265:  EPA took comment on whether it would be appropriate/helpful if proposed revisions to part 262 were also be made in the applicable paragraphs of parts 264 (permitted facilities) and/or 265 (facilities operating under interim status) to ensure consistency or whether the regulations should remain unchanged despite the result that generators and TSDFs would be left with some regulations that are very similar but not exactly the same.

Comment:  Nine commenters, either in entirety or at least to some extent, recommended incorporating changes to generator regulations into 40 CFR parts 264 and 265 (85, 106, 123, 182, 217, 219, 232/281, 248; 286). One commenter stated that having requirements that are similar but not identical does not make sense (85). One commenter suggests that the US EPA make the same changes to contingency plan and emergency procedures at TSDFs as these changes would have the added benefit of reducing administrative burden to TSDFs and regulators associated with Class 1 permit modifications triggered when the name of one of the numerous persons fulfilling a "shift leader" position no longer performs this function (106). One commenter was in favor of creating consistency between the generator training requirements and the training required by 40 CFR parts 264 and 265 (123). One commenter stated that permitted facilities should not have lesser requirements than non-permitted facilities and that, since proposed generator regulations increase certain requirements, any increased requirements for generators should be also be reflected in 40 CFR parts 264 and 265 (182). Another commenter, presumably reflecting feedback from all member organizations, also indicated that that permitted facilities should not have lesser requirements than non-permitted facilities and that any proposed changes to generator regulations that are finalized and that could affect 40 CFR parts 264 and 265 should result in changes to the latter for the sake of consistency (217). Two commenters requested that EPA modify contingency plan and emergency procedures regulations to eliminate employee personal information at permitted and interim status TSDFs (219, 286). One commenter believed all of EPA's discussions regarding preparedness, prevention and emergency procedures provisions are equally applicable to TSDFs and supported revising TSDF preparedness and training requirements in parallel with proposed revisions to applicable SQG and LQG requirements (232/281).

Comment:  Three commenters did not believe corresponding changes needed to be made to TSDF regulations (134, 181; 243). One of these commenters noted that, in the case of documenting arrangements with local emergency authorities, companies have preparedness, prevention and emergency procedures in place along with adequate and up-to-date emergency contingency plans, such that proposed modifications for generators need not be mandated for TSDFs (243).

Comment:  Three commenters suggested that the requirement to provide an executive summary of the contingency plan be extended to TSDFs (82, 217; 264).

Comment:  One commenter providing feedback on behalf of multiple member organizations indicated that one of its members suggested that use of online training should also be allowed at TSDFs. (217)

Response (general):  EPA recognizes that the majority of commenters supported making corresponding changes to TSDF regulations; however, the Agency is not making such changes as part of this rulemaking because we believe that emergency planning and procedure requirements at TSDFs can best be addressed on a facility-specific basis through the permitting process.

Section 4.7.14 - Other

Comment:  A commenter indicated that the terms "emergency situation" and "when the emergency coordinator is on call" in 40 CFR 262.265(a) are confusing, further noting that "emergency situation" is not defined and can be interpreted differently by the regulated community than by regulators. The commenter suggested that it would be better to use the term "release, fire, or explosion" as in 40 CFR 262.265(b) and (d) so there is consistency as to what is regulated in 40 CFR 262.265. This commenter also indicated that the term "designee" in 40 CFR 262.265(a) is not used elsewhere probably should be changed to "alternate" (as in 40 CFR 262.261(d)), with suggested wording, "Whenever there is an actual or impending release, fire or explosion, the emergency coordinator or alternate must immediately..." This commenter noted that the term "on call" is described in 262.264 as being able to reach the site within a short period of time and, thus, a designee would not be needed to initiate response (78).

Response (78):  EPA did not propose any changes to requirements at 40 CFR 262.265(a), 40 CFR 262.265(b) and 40 CFR 262.265(d), therefore, this comment is beyond the scope of this rulemaking. Notwithstanding, EPA takes this opportunity to provide the following information. EPA believes there are important distinctions between the situations described in terms of the progression of an emergency situation. 40 CFR 262.265(a) describes a situation where a release of hazardous wastes or hazardous constituents has not yet occurred but could occur, 40 CFR 262.265(b) describes a situation where a release (or fire/explosion) has already occurred, and 40 CFR 262.265(d) describes a situation where a release (or fire/explosion) could threaten human health or the environment or has occurred outside the facility. For this reason, the Agency is not making any changes to regulatory text. EPA also realizes that the term "alternates" is used in 40 CFR 262.261(d). However, since the Agency believes the meaning is already sufficiently clear, text at 40 CFR 262.265(a) is not being revised. Lastly, EPA did not propose any changes to requirements at 40 CFR 262.264. The Agency believes it unnecessary to specify time periods in terms of how soon a response should occur since as this will depend on the nature of the situation. Moreover, should an emergency arise, the effectiveness of emergency response activities will be known and could subsequently be evaluated. If there are issues encountered regarding response time frames, then this would be addressed on a facility-specific basis including, potentially, as part of amending the contingency plan.

Comment: Three commenters requested clarifications/modifications regarding aisle space requirements (78, 123; 280).  One commenter stated that application of this requirement is problematic for generator facilities in that storage is usually limited in scope and co-located with other facility operations, adding that the phrase "any area of site operation" broadens the requirement significantly. This commenter also stated that, since the International Fire Code (IFC) contains a requirement for maintaining aisle space for this purpose, this requirement is duplicative for facilities subject to the IFC requirement or other local fire codes. This commenter provided an example of a state where adequate aisle space is specified (e.g., 30 inches or more) and that this requirement can even be more stringent than fire codes. Lastly, the commenter expressed concerns that compliance with generally worded requirements, as determined during inspections, is subjective and that EPA should consider a definitive standard such as compliance with IFC requirements (78). Another commenter requested clarification regarding the meaning of "maintain aisle space to allow the unobstructed movement" and suggested that the meaning of this statement be consistent with IFC requirements for aisle space (123).  The final commenter suggested EPA include guidance on the minimum required dimensions of "aisle space" (280).

Response (78, 123; 280):  Besides minor wording changes (i.e., replace "owner or operator" with "large quantity generator"), EPA did not propose any changes to these regulations regarding aisle space for either LQGs or SQGs. Therefore, these comments are beyond the scope of this rulemaking. Notwithstanding, EPA takes this opportunity to provide the following information. The Agency believes existing regulatory text, "...maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of site operation in an emergency, unless aisle space is not needed for any of these purposes" at § 262.16(b)(8)(v) and §262.255 for SQGs and LQGs, respectively, is sufficiently detailed without being overly prescriptive. Moreover, it should be noted that authorized states are not precluded from establishing specific aisle requirements for hazardous wastes nor are other authorities precluded from defining what constitutes sufficient aisle space.

Comment:  A commenter disagreed with the wording of proposed section 262.264 because the commenter believed wording in this section implies that only one person must serve as emergency coordinator, while also noting that the draft rule preamble acknowledges that the emergency coordinator position can be filled by several persons serving at different times. The commenter requests that regulations be revised to reflect this concept. (92)

Response (92):  EPA disagrees with the commenter and notes that the Agency has revised section 262.264 to reflect the fact that emergency coordinator responsibilities may vary depending upon the type/variety of hazardous wastes, as well as the type/complexity of the facility.  Existing regulations, as well as proposed and final regulations at 40 CFR 262.261(d), 40 CFR 262.263(e) and 40 CFR 262.264, allow for more than one emergency coordinator at a facility. 

Comment:  Regarding 40 CFR 262.251 (maintenance and operation of facility), a commenter requested clarification as to what steps are required to minimize the possibility of fire, explosion, and release (123).

Response (123):  Besides the proposal to change the term "facility" to "site," which EPA has not adopted, the Agency did not propose any changes associated with 40 CFR 262.251.  EPA believes existing language regarding preparedness, prevention and emergency procedures already spells out the steps that need to be taken to minimize the possibility of fire, explosion, and release.

Comment:  A commenter requested clarifying the meaning of "necessary to assure its proper operation in time of emergency" in 40 CFR 262.253 (123). 

Response (123):  Besides minor wording changes (i.e., the word "facility" has been omitted), EPA did not propose any changes to existing regulations. In terms of specific testing and maintenance requirements, we believe such requirements would be dependent upon the particular type of equipment, as well as the manufacturer's specifications. This information would be used by the generator to establish testing/maintenance criteria, which would then be retained as part of the operating record and made available during an inspection. Having said this, the Agency believes that regulatory text at 40 CFR 262.253 for LQGs and parallel language for SQGs at 40 CFR 262.16(b)(8)(iii) accords the generator sufficient flexibility in establishing testing/maintenance criteria.

Comment:  A commenter suggested to add text to proposed 40 CFR 262.265(a) to define an emergency situation as a release, fire or explosion, consistent with text in the proposed change to 40 CFR 262.265(b) (123).

Response (123):  EPA did not propose any changes to either of these requirements, therefore, this comment is beyond the scope of this rulemaking. Notwithstanding, EPA takes this opportunity to provide the following information. EPA believes there is an important distinction between the situations described by 40 CFR 262.265(a) and 40 CFR 262.265(b) in terms of the progression of an emergency situation. In the former, a release of hazardous wastes or hazardous constituents has not yet occurred but could occur while, in the latter, a release (or fire/explosion) has already occurred. For this reason, the Agency did not propose and is not making any changes to regulatory text. 

Comment:  A commenter suggested that EPA replace the term "designee" with "alternate" to create consistency with proposed text of 40 CFR 262.261(d) (123).

Response (123):  EPA realizes that the term "alternates" is used in 40 CFR 262.261(d). However, since the Agency believes the meaning is already sufficiently clear, text at 40 CFR 262.16(b)(9)(iv) and 40 CFR 262.265(a) for SQGs and LQGs, respectively, is not being revised.

Comment:  A commenter suggested rewriting the proposed text at 40 CFR 261.420(g) to state, "All employees must be familiar with their responsibilities for emergency procedures relevant to their responsibilities during normal facility operations and emergencies.  Employees with waste management duties must be familiar with proper waste handling during emergency and normal operations." (123)

Response (123):  The language in 40 CFR 261.420 is a technical correction to the emergency preparedness and response requirements for hazardous secondary material recycling that were finalized in the most recent DSW rule. (see 80 FR 1760). As noted in the Generator Proposal, EPA inadvertently left out the language about requiring generators who accumulate more than 6,000 kg onsite to ensure their personnel are familiar with proper waste handling and emergency procedures (see 80 FR 57984).  This change corrects that error.  Note that parallel language applicable to hazardous secondary material generators who accumulate less than 6,000 kg can already be found in 40 CFR 261.411(c).  Without this correction, EPA would technically be requiring generators who store less than 6,000 kg to be familiar with emergency procedures but not requiring the same thing of generators who store more than 6,000 kg. Since the language is intended to be parallel to that already finalized in 40 CFR 261.411(c) it wouldn't be appropriate to change it here.

Comment:  A commenter believed that the word "increases" in proposed §262.263(c) should be changed to "affects." More specifically, the commenter believed that the contingency plan should be changed not only if a change in the generators site increases the potential for fires, explosions, or releases but also in any case where such potential is affected. In either case, the commenter asserted that such changes could merit amendments to the information and response procedures that it would be appropriate to have in the contingency plan (178).

Response (178):  EPA neither proposed nor took comment on changes to the proposed requirement at 40 CFR 262.263(c) in this regard, therefore, these comments are beyond the scope of this rulemaking. Notwithstanding, the Agency takes this opportunity to provide the following information. The Agency understands that changes in the generator facility could result in decreased potential for fires, explosions or releases of hazardous waste or hazardous wastes constituents, as implied by the commenter. However, the Agency believes the emphasis on the increased potential for these events to occur should remain unchanged. Authorized states are not precluded from requiring LQGs to amend the contingency plan to address the situation described by the commenter. 

Comment:  A commenter requested that EPA define a "short period of time" or discuss this term further in the preamble to final rule because specifying a time period provides consistency, thereby allowing the generator and inspector to know that the emergency coordinator needs to be able to respond sufficiently quickly (206).

Response (206):  EPA did not propose any changes to requirements at 40 CFR 262.16(b)(9)(i) and 40 CFR 262.264 for SQGs and LQGs, respectively, so this comment is beyond the scope of this rulemaking. However, EPA takes this opportunity here to provide our thoughts on this comment. The Agency believes it unnecessary to specify time periods in terms of how soon a response should occur since as this will depend on the nature of the situation. Moreover, should an emergency arise, the effectiveness of emergency response activities will be known and could subsequently be evaluated. If there are issues encountered regarding response time frames, then this would be addressed on a facility-specific basis including, potentially, as part of amending the contingency plan.

Comment:  A commenter noted that conditions for exemption for an LQG that accumulates hazardous waste, under 40 CFR 262.17(a)7)(i)(D)(iii), states that "Site personnel must take part in an annual review of the initial training required in paragraph (a)(7)(i) of this section" and recommended to explicitly state under 40 CFR  262.17(a)(7)(i)(D)(iii) that the annual review must occur at least once every calendar year (206).

Response (206):  Aside from replacing the word "site" with "facility," EPA did not propose any changes to this requirement. The Agency believes occurrence of a review every calendar is already apparent given existing wording, "must take part in an annual review."
 
Comment:  In the context of commenting on contingency planning, a commenter noted that "confined space violations happen." (214)

Response (214):  EPA is aware of this fact but cannot ascertain the relevance of this comment to the Agency's proposed revisions to emergency preparedness and planning regulations; therefore, additional discussion is not possible.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one of its members agrees with EPA's proposed revision to update regulations such that they reflect modern technology utilized in emergency situations. (217)

Response (217):  EPA's discussion in the proposed rule preamble specifically mentioned incorporation of modern technology into emergency planning and procedures regulations in order to provide information more quickly to emergency responders. In line with this intention, EPA proposed to allow an LQG to use online computer training, in addition to classroom instruction and on-the-job training, to complete the personnel training requirements. EPA also requested comment on whether contingency plans should be submitted electronically to emergency responders to enhance their ability to respond safely and effectively to an emergency at an LQG, including what EPA's role should be in electronic submittals. In making this request, EPA noted that the Agency currently makes numerous electronic databases and tools available for helping first responders with emergency management  -  an example cited was a suite of software applications used to assist with data management requirements under EPCRA. EPA presumes that the member organization in question would support these efforts. The final rule includes language at 40 CFR 262.17(a)(7)(i)(A) allowing an LQG to use online training (e.g., computer-based or electronic) to satisfy training requirements. Although EPA is not making any changes to proposed regulations at 262.262(a) regarding transmission of the contingency plan, the Agency is encouraging LQGs to work with first responders to determine, on a facility-by-facility basis, whether electronic submission of contingency plans, including incorporating contingency plan information into existing software applications, is an acceptable approach either in lieu of or in addition to a hard copy submission.

Comment:  One commenter noted a potential typographical error in that the proposed modifications described for 40 CFR 262.254 refer to 40 CFR 265.252 twice. The commenter believes this is a typographical error (40 CFR 265.525 is regulations apply to waste piles) and should actually refer to 40 CFR 262.252. (255).

Response (255):  The commenter is correct and EPA has addressed this error in the final regulatory text. 

Comment:  One commenter observed that proposed 40 CFR 262.264, which references 40 CFR 262.265 with respect to coordinating emergency response measures and implementing necessary emergency procedures, no longer includes language, "Applicable responsibilities for the emergency coordinator vary, depending on factors such as type and variety of waste(s) handled by the facility, and type and complexity of the facility" and recommended that such language be included so as to accord some flexibility to those who must perform these emergency response duties. (263) 

Response (263):  EPA proposed incorporating a minor revision associated with a "comment" in existing regulatory text into the final rule at 40 CFR 262.264 because the Federal Register style no longer permits this kind of comment in new regulations. EPA recognizes this oversight and has incorporated the suggested text into 40 CFR 262.264.

Comment:  A commenter noted that a new section on personnel training, 40 CFR 261.420(g), has been added to the requirements for facilities generating or accumulating more than 6,000 kg of hazardous secondary material. The commenter noted that, depending on the nature of the hazardous secondary material, this training might not be warranted at all and that the mass of secondary material is not the correct criterion for evaluating training needs; rather, it is the ability of the material to adversely affect the environment and worker health that is key. (263)

Response (262):  The language in 40 CFR 261.420 is a technical correction to the emergency preparedness and response requirements for hazardous secondary material recycling that were finalized in the most recent DSW rule. (see 80 FR 1760). As noted in the Generator Proposal, EPA inadvertently left out the language about requiring generators who accumulate more than 6,000 kg onsite to ensure their personnel are familiar with proper waste handling and emergency procedures (see 80 FR 57984).  This change corrects that error.  Note that parallel language applicable to hazardous secondary material generators who accumulate less than 6,000 kg can already be found in 40 CFR 261.411(c).  Without this correction, EPA would technically be requiring generators who store less than 6,000 kg to be familiar with emergency procedures but not requiring the same thing of generators who store more than 6,000 kg. Since the language is intended to be parallel to that already finalized in 40 CFR 261.411(c) it wouldn't be appropriate to change it here.

Comment:  One commenter asserts that existing EPA guidance, as referenced in Section VIII.H.1 of the proposed rule preamble, makes it very clear that both developing a contingency plan and conducting training are not "site-wide" requirements and that this is in contrast to what the Agency states in Section VII.A of the proposed rule preamble, which discusses waste generation and generator category in the context of generators that generate both acute and non-acute hazardous waste in the same calendar month.  The commenter therefore suggests that EPA make a correction in a subsequent Federal Register (267).

Response (267):  EPA makes it clear in the final rule preamble and the rule itself that preparedness, prevention and emergency procedures apply to those portions of a facility where hazardous waste is generated and accumulated. In doing so, the Agency, notes that there may exist multiple points of generation and associated SAAs at a facility from which hazardous wastes are routinely moved to CAAs; hence, the potential exists for spills during the accumulation and management process. The Agency adds that "allowable treatment," though not defined in the regulations, is covered as part of the overall hazardous waste accumulation and management process within a facility and will continue to be addressed at generator facilities within the framework of existing guidance. With respect to training requirements, EPA has decided not to similarly expand the scope of training requirements beyond CAAs because the Agency believes that existing regulatory language, insofar as outlining the objective of training, is sufficiently comprehensive and allows generators the flexibility to determine those areas of hazardous waste management, including SAAs, for which personnel training and a written job description are required.

Comment:  A commenter asked EPA to consider removing the "fire hydrant flow rate" requirement at 40 CFR 262.262(b)(6) as this information would be very difficult to maintain accurately (280).

Response (280):  EPA did not propose any changes to this requirement, so this comment is beyond the scope of this rulemaking. However, EPA takes the opportunity here to provide our thoughts on this comment. The Agency believes that any flow rate would necessarily vary through time and notes that the intent here is simply to ensure that sufficient water pressure and water volume are available. The Agency believes this could easily be explained by the facility in the event that questions arise during an inspection.

Comment:  A commenter suggested that the word "immediate" text at 40 CFR 262.263 regarding amendment of the contingency plan be replaced by "within 60 days." (280)

Response (280):  EPA did not propose any changes to this requirement, so this comment is beyond the scope of this rulemaking.

Comment:  A commenter recommended that EPA provide outreach materials to local governments, citizens and businesses to help them better understand the rule and how to protect their community and prevent contamination.  This commenter further stated that coordination with state, local and tribal governments are important, especially in implementation of the final rule, and therefore recommended that intergovernmental feedback on implementation should be closely monitored (289).

Response (289):  EPA concurs with this comment.  Although the efforts outlined by the commenter are not discussed in the final rule preamble or regulatory text, the Agency fully intends to coordinate with stakeholders and conduct other outreach activities as part of implementing this final rule.

Section 4.8 - Satellite accumulation areas

Comment: Five commenters support the proposed changes to Satellite Accumulation Area (SAA) standards (Commenters 85, 134, 178, 188, 240). 
EPA Response: The EPA thanks the commenters for their support.

Comment: Three commenters request the following clarifications (Commenters 97, 178, 239):
· The existence of an SAA does not necessarily imply a requirement for a CAA and that there is no set of geographic or geometric standards that define an SAA (Commenter 97). 
EPA Response: EPA agrees that an SQG or LQG that has an SAA is not required to have a CAA (or vice versa). And although SAAs are required to be "at or near any point of generation," there is no set of specific geographic or geometric standards that define the term "at or near the point of generation." EPA would not consider a shed outside a building where the waste is initially generated to be "at or near the point of generation." Nevertheless, as this term is not particularly specific, implementing regulatory agencies will retain authority in determining what they consider "at or near the point of generation."

· Hazardous wastes stored in SAAs are not subject to the one-year land disposal restriction storage prohibition and have no time limit while wastes are being accumulated (Commenter 239).
EPA Response: Although it is true that SAAs do not have an accumulation time limit, hazardous wastes accumulated in SAAs are not exempt from the one-year land disposal restriction storage prohibition of § 268.50 (which is taken directly from HSWA §3004(j)). The storage prohibition does allow for storage beyond a year if such storage is "solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recover, treatment or disposal," which may apply in the case of some SAAs. 

· Adding language emphasizing that wastes may not be moved between SAAs (Commenter 178).
EPA Response: EPA agrees with the commenter that hazardous wastes may not be moved between SAAs. Although we have stated this in guidance (RCRA Online #14703 and #14337), we did not propose to make this clarification in this rule and therefore we are not able to finalize this change.

Comment: Five commenters express the following opposition (Commenters 78, 168, 178, 214):
· Proposed SAA changes indicate a problematic reversal in the policy that SAAs warrant less burdensome requirements (Commenter 224).
EPA Response: Although this final rule does impose additional requirements on SAAs that did not previously exist, the SAA regulations still are less burdensome than for CAAs. Notably, SAAs still are not required to comply with the inspection requirements, the special requirements for ignitable or reactive waste, the air emission standards or the personnel training. And in this final rule, we are providing new flexibility for SAAs that did not exist previously (i.e., the ability to keep containers open temporarily in certain circumstances). 
· EPA is unjustified in setting the same requirements for generator accumulation areas as for commercial storage facilities (Commenter 78). Appropriate requirements should be set for generator accumulation independent of those imposed on permitted facilities.
EPA Response: The SAA, SQG and LQG accumulation regulations have always referenced the technical standards found in Subpart I of Part 265, which is the container standards for interim status TSDFs and we continue to believe that they provide the appropriate level of protection.
Comment: One commenter believes that EPA should not require training for personnel in SAAs (Commenter 168).
EPA Response: Although the Agency did request comment in this area, the final regulations do not require training of personnel working in SAAs. Personnel that have access to or work in central accumulation areas, including those that move hazardous waste from a SAA to a central accumulation area, must be trained. As the ones actually generating hazardous waste, however, personnel working in SAAs need to be familiar enough with the chemicals with which they are working to know when they have generated a hazardous waste so that it will be managed in accordance with the RCRA regulations.
Comment: One commenter urges EPA to add a requirement that SAAs comply with the requirements of 265.31 and 265.173(b) (Commenter 178).
EPA Response: EPA agrees that, as a matter of best practice, hazardous waste in SAAs should be managed to minimize the possibility of fire, explosion and releases to the environment (265.31). Although we did not propose to make SAAs subject to 265.31, we are clarifying in the final rule that SAAs at SQGs are subject to the emergency preparedness and prevention regulations of 262.16(b)(8) and emergency procedures of 262.16(b)(9) and SAAs at LQGs are subject to the Preparedness, Prevention and Emergency Procedures in part 262 subpart M.
EPA also agrees that, as a matter of best practice, a container of hazardous waste should not be opened, handled, or stored in a manner which may rupture the container or cause it to leak (265.173(b)). However, we did not propose this change, and therefore we are not able to finalize this change.
Comment: One commenter notes the preamble discusses the satellite requirement for waste to be "at or near the point of generation" but the draft rule language is not changed (Commenter 214). 
EPA Response: The proposed and final SAA regulatory language in § 262.15 retains the original regulatory language from § 262.34(c) which states, "A generator may accumulate....in containers at or near any point of generation where wastes initially accumulate..." (emphasis added).

Section 4.8.1 - Incompatible waste requirements

Comment: Nine commenters support separation of incompatible wastes in satellite areas (Commenters 78, 108, 121, 127, 174, 183, 185, 217, 232). One commenter believes the requirements for storage of incompatible hazardous wastes should be more restrictive to prevent generators from accumulating these wastes in the same container, as would be allowed if the conditions of 265.17(b) are met (Commenter 127).
EPA Response: We anticipate that the limitations included in §265.17(b) are sufficiently restrictive such that they will ensure that any mixing of incompatibles would be rare.
Comment: Three commenters put forth that prohibiting the mixing of incompatible wastes is obvious self-regulation and that there is no need to specify this requirement (Commenters 99, 101, 242). One commenter states 265.31 facility operation and maintenance already sufficiently covers this (Commenter 214).
EPA Response: The Agency is encouraged to hear from commenters that they believe generators already routinely segregate their incompatibles. Nevertheless, for additional clarity and to ensure generators that are not following these best management practices adopt them, the Agency is finalizing the requirement that SQGs and LQGs accumulating hazardous waste in SAAs comply with the part 265 subpart I container management standards for incompatible hazardous wastes at § 265.177. 
Comment: Three commenters found EPA's use of the phrase in 264.177 "dike, berm wall or other device" problematic for satellite areas, since installation of such might be impractical, overly burdensome, or clash with the requirement that SAAs be `at or near' the point of generation (Commenters 78, 224, 260).
EPA Response: The Agency agrees that most SAAs would not accommodate a dike, berm or wall. Although, the proposed regulatory language also allows for "other device[s]," to keep incompatibles segregated, the Agency has decided to replace the regulatory language "by means of a dike, berm, wall or other device" with the phrase "by any practical means" in order to address commenters' concerns.

Section 4.8.2 - Exceptions to closed containers

Comment: 36 commenters support the proposed changes allowing containers to be vented or to remain open under limited circumstances that will not pose a threat to human health or the environment (Commenters 68, 77, 78, 85, 91, 97, 99, 101, 110, 121, 123, 135, 136, 141, 154, 178, 183, 190, 201, 212, 214, 217, 219, 223, 224, 225, 226, 230, 231, 232, 242, 248, 256, 258, 260, 282). 
Comment: One commenter proposes that a sealed lid should not be required for some containers, for example pipettes should be allowed to be collected in a container with a swinging lid (Commenter 201).
EPA Response: A swinging lid on a container would be allowed in order for the container to be considered closed, provided that the swinging lid has a clasp (or other mechanism) to keep the lid from swinging open unintentionally, if, for example, the container was knocked over.
Comment: One commenter believes that it would be a useful if a facility is required to document each instance where they keep SAA containers open (Commenter 223).
EPA Response: The Agency did not consider requiring documentation when proposing this provision. However, states may choose to be more stringent when adopting these regulations.

Comment: Seven commenters propose the following (Commenters 78, 92, 196, 217, 219, 232, 235):

· Making this provision container/waste type specific instead of defining `areas' (Commenter 196).
EPA Response: EPA believes it would be difficult to develop an exhaustive list of all of the types of containers and wastes for which the closed container exception would be suitable. Furthermore, it would require a regulatory change each time a new example was found to be suitable. We prefer the performance-based approach that we have included.

· Extending the rule to SQG and LQG CAAs, and permitted storage areas (Commenters 78, 92, 219).
EPA Response: As with the proposed rule, the flexibility for containers to remain open in specific situations applies only to containers in SAAs because that is where hazardous waste initially accumulates in most cases. We realize that in some cases, generators may not have SAAs and that they initially accumulate hazardous waste in their CAA and therefore will not be able to use this flexibility. However, given our concerns about the volumes of hazardous waste in CAAs compared to SAAs, we are not extending this flexibility to containers accumulating in CAAs at this time.

· Clarification and guidance as the proposed rule introduces vague loopholes in addition to increased flexibility (i.e. allowing open containers `for the proper operation of equipment') (Commenters 217, 232, 235).
EPA Response: This flexibility has been in place since 2008 as part of the Academic Laboratories Rule (Subpart K) and we have not learned of any implementation problems associated with that provision. Nevertheless, we have strengthened the regulatory language to make clear that this exception to requiring closed containers was intended for temporary situations only. In the preamble to the proposed rule, we indicated that the requirement to keep the container closed applies when the danger passes (e.g., the contents cool), and when the equipment is not in operation. In response to commenters' concerns, EPA is finalizing this provision, as proposed, with a minor addition. The regulatory language has been modified so that a container holding hazardous waste must be closed at all times during accumulation, except when adding, removing, or consolidating waste, or when temporary venting of a container is necessary (1) for the proper operation of equipment, or (2) to prevent dangerous situations, such as build-up of extreme pressure (emphasis added). EPA stresses it does not intend to create a loophole to the closed container requirement or to allow intentional evaporation of hazardous waste. Rather, the intent of the flexibility is to address the limited cases in which "strict adherence to the "container closure" requirements could substantially increase a risk of a hazardous waste incident rather than decrease it" (Commenter 232). 

Comment: One commenter notes the proposed changes for closure of SAA containers do not address 265 Subpart CC standards (Commenter 217). How do those requirements affect the proposal? Would be appropriate to address the Subpart CC requirements within 262.15? 
EPA Response: We agree with the commenter that the air emission standards found in 265 subpart CC do not apply in SAAs. Given that the exceptions to keeping containers closed in SAAs are only allowed under limited circumstances, on a short-term basis, and that only limited amounts of hazardous waste are accumulated in SAAs, we do not think it is necessary to require compliance with part 265 subpart CC at this time.
Comment: One commenter cautions that if EPA were to define the term `closed' the plain meaning of that word would convey the opposite standard (Commenter 240).
EPA Response: EPA did not propose to define the term "closed," nor are we finalizing a definition of the term.

Section 4.8.3 - "Three Days"

Comment: Seven commenters agree with the proposed change (Commenters 85, 99, 178, 185, 232, 242, 248). One commenter urges clarification on what moment the `counting' begins (Commenter 232). 
EPA Response: Consistent with existing guidance, the counting of three consecutive calendar days begins when the maximum volumes (or mass) has been exceeded (see RCRA Online #14703 and #12503).
Comment: Five commenters urge EPA to allow up to 10 days (Commenters 87, 188, 238, 249, 280). Twelve commenters urge that EPA revise `three days' to refer to three business or operational days, not calendar days (Commenters 97, 113, 126, 133, 179, 187, 189, 192, 217, 219, 224, 262). One commenter suggests EPA use the term `three consecutive calendar days' (Commenter 152). 
EPA Response: The Agency was simply proposing to codify long-standing policy on the issue of what "three days" meant, as it is used in the SAA regulations. We did not take comment on extending the time frame.
Although many commenters argued that we should allow "three working days," one commenter conceded that, "due to differences in business schedules, this becomes difficult to define in a rule" (Commenter 133). For example, some companies shut down completely for lengthy periods around the holidays or during seasonal slowdowns. As a result, if we relied on "three working days," it would create an uneven and unfair implementation of this SAA provision. Further, it's easy to imagine a raft of implementation questions that would ensue about the definition of a "working day." Therefore, the Agency is finalizing this provision, as proposed, with one minor revision. While in the preamble to the proposed rule we used the term "three consecutive calendar days," in the proposed regulatory language, we used "three calendar days." To promote the most clarity, in the final rule, we will use "three consecutive calendar days."
Comment: One commenter opposes the new time limit and asserts that the benefit of this rule change is not clear (Commenter 244).
EPA Response: As discussed above, the Agency disagrees that this is a new time limit. Rather this is a codification of existing policy and is consistent with the intent of the original SAA regulations.

Section 4.8.4 - One quart or 1kg of acute hazardous waste

Comment: Five commenters agree with the proposed weight measurement addition for waste (Commenters 85, 178, 214, 232, 248). Two commenters suggest EPA specify that the one quart limit applies to liquids and the 1 kg limit applies to non-liquids (Commenter 178, 242).
EPA Response: EPA agrees and we have added regulatory language to indicate that the 1 quart limit for acute hazardous waste applies to liquids and the 1 kg limit for acute hazardous waste applies to solids. In the preamble, we also indicate that these quantities are not additive, so in cases where a generator has both liquid and solid acute hazardous waste accumulating in an SAA, the 1 kg (or 2.2 lbs) limit will be applied.
Comment: Six commenters disagree with this proposal, especially when applied to non-acute hazardous waste, and assert that placing a weight restriction on a 55-gallon container serves no purpose and would lead to noncompliance (Commenters 99, 101, 152, 154, 217, 232).
EPA Response: EPA took comment on whether to apply a weight restriction for non-acutes, as an alternative to the 55-gallon maximum. Because commenters either saw no need or objected, we are not finalizing an alternative. Therefore, for non-acute hazardous waste accumulating in an SAA, the maximum volume will continue to be 55 gallons.
Comment: One commenter requests clarification for dealing with wastes consisting of debris or packaging and how will the kilogram of waste be determined? (Commenter 214)
EPA Response: In a February 17, 2016, memo, EPA clarified that the container (e.g., packaging) does not need to be included when calculating the maximum accumulation volume of acute hazardous waste in an SAA (RCRA Online 14875). This would also be the case when calculating the maximum accumulation weight (mass) of acute hazardous waste in an SAA.
Comment: One commenter suggested that EPA should use Standard International (SI) units throughout the SAA regulations instead of the English units (Commenter 99). Two commenters propose defining SAAs to include up to 55 gallons of hazardous waste and/or one liter of acute hazardous waste (Commenters 60, 99). 
EPA Response: EPA does not have a definition, per se, of the term "satellite accumulation area." However, the regulations for SAAs, now found in §262.15, place limits on how much waste may be accumulated in an SAA. In the revised regulations, EPA has included both metric (1 kg) and English (2.2 pounds) units for the maximum weight allowed for solid acute hazardous waste in an SAA. We did not, however include a metric equivalent to 1 quart allowed for liquid acute hazardous waste. Given that 1 quart is nearly identical to 1 liter (1 qt = 0.94 L or 1 L = 1.05 qts, it seemed unnecessary to include both. We also chose not to change the 55-gallon limit for non-hazardous waste, as the 55-gallon drum continues to be the industry standard, as it was when we adopted it in the original SAA regulations. 

Section 4.8.5 - Revisions for when maximum weight or volume are exceeded

Comment: Three commenters agree with the proposed change (Commenters 85, 232, 248).
Comment: The language "in excess of the amounts" and "the excess" causes confusion and should be reworded (Commenters 151, 156, 178, 206, 224).

EPA Response: EPA agrees with the commenters and, during the development of the proposed rule, we sought to revise this aspect of the SAA regulations. We also agree with the commenter that "In reality, what happens in most cases is that the generator removes the older waste, and continues to accumulate the most-recently generated waste. For example, if a generator has a 55-gallon drum in an SAA and that drum becomes full, the generator might begin accumulating newly generated waste in a second 55-gallon drum" (Commenter 178). Unfortunately, during the development of the proposed rule, EPA's attempts to convey this idea through regulatory changes were unsuccessful and therefore were not included in the proposed rule. Nevertheless, we endorse the commenter's description as a best management practice for removing hazardous waste from an SAA. One alternative suggested by Wisconsin Department of Natural Resources (WDNR) (Commenter 206) is to "clarify that a full 55-gallon drum must be moved from the satellite accumulation area. As the proposed rule reads now, a full 55-gallon drum may be under the satellite accumulation requirements indefinitely because 40 CFR § 262.15(a)(6) refers to excess amounts...If a satellite accumulation drum is at capacity it should be moved into the central accumulation area." Again, the Agency agrees that a full 55-gallon drum should be moved to a CAA. During the development of the proposed rule, we considered rewording this section of the proposed regulations as the WDNR suggested but we declined to use this construct in the proposal out of concern that generators would be able to easily circumvent our intent by not completely filling a container before beginning to fill another container.

Comment: Two commenters agree with EPA's attempt at providing clarify and suggests including the option of converting the SAA into a CAA, i.e., retain the management in place option (Commenters 97, 214).

EPA Response: At the time of proposal, the Agency did not anticipate that generators would choose to convert SAAs into CAAs. However, this commenter pointed out that some generators do not have a CAA to move the waste to and therefore must manage the SAA as a CAA when volumes (or mass) are exceeded. In response, in the final rule the Agency has amended the regulatory text to retain the option to allow generators to convert an SAA to a CAA when maximum volumes (or mass) are exceeded. 

Section 4.8.6 - Rescinding reactive hazardous waste memo

Comment: Eight commenters agree with the proposal to rescind the memo (Commenters 85, 99, 126, 174, 188, 217, 242, 248).
Comment: Four commenters recommend not rescinding the memo (Commenters 92, 123, 214, 232).
EPA Response: We intend to rescind the memo, as proposed, while addressing commenters' concerns, as discussed below.
Comment: One commenters believe the rationale cited in the proposed rule is not consistent with the designation process for D003 (Commenters 78). Two commenters believe that if EPA rescinds this memo, the rescission should be made specific to the types of waste that justify prohibition of accumulation in SAAs not adjacent to the point of generation (Commenter 78, 93). Another commenter believes that there may be an unintended consequence that SAAs for these high hazard wastes will be placed close to the point of generation in order to avoid having pick-ups of the waste every 90 days (Commenter 92).
EPA Response: It was not our intent to imply that all reactive hazardous wastes (D003) were required to be accumulated away from the initial area of generation and, therefore, could not be accumulated in SAAs. Likewise, it was not our intent that there might be a "Catch-22 where EPA does not allow remote accumulation and OSHA or the International Fire Code does not allow them to be accumulated at the point of generation" (Commenter 78). On the contrary, our intent was that if, for safety reasons, which may be driven by fire codes or OSHA regulations, a reactive hazardous waste (or other hazardous waste, for that matter) needs to be accumulated away from the initial area of generation, then that accumulation area should be considered a CAA, not an SAA. EPA is not prohibiting remote accumulation; rather, we are clarifying that it is more appropriate to regulate the remote accumulation area as a CAA than an SAA. Likewise, EPA did not intend to suggest that all storage sheds would necessarily be CAAs. For example, a storage shed that is located "at or near the point of generation" could be considered an SAA. The Agency hopes that generators will put the safety of their employees first when making decisions about the placement of accumulation areas for high hazard wastes, whether they are D003, or other waste codes.
Comment: One commenter requests that states be allowed to grant permission for SAAs to be located away from the point of generation (Commenter 189). The commenter notes there are other situations besides having reactive waste that would make it necessary to locate an SAA away from the point of generation.
EPA Response: We intend to rescind the memo, as proposed, while addressing commenters' concerns. Not only do SAAs have fewer regulations and safeguards associated with them than CAAs, but the regulations require that they must be "at or near the point of generation." EPA would not consider a shed outside a building where the waste is initially generated to be "at or near the point of generation." Nevertheless, as this term is not particularly specific, implementing regulatory agencies will retain authority in determining what they consider "at or near the point of generation."

Section 4.8.7 - "Under the control of the operator"

Comment: Two commenters agree with the proposed revisions (Commenters 159, 174).
Comment: One commenter finds the proposed revisions unduly burdensome and incompatible with the retail sector (Commenter 168).
EPA Response: To the contrary, the Agency requested comment on this issue in the hope of developing a list of best management practices that regulators and the regulated community could rely on to fulfill this existing requirement. The Agency deliberately did not propose or finalize any regulatory text to define the term "under the control of the operator" and therefore there is not an increased burden associated with this issue.
Comment: One commenter believes this term is subjective and the definition should be left to the opinion of the implementing agency (Commenter 217).
EPA Response: EPA agrees. The examples discussed in the preamble to the proposed rule and final rule are not an all-inclusive or exhaustive list of practices that may be used to meet the requirement that hazardous waste in an SAA must be "under the control of the operator." Implementing regulatory agencies may consider these examples or alternatives to meet the intent of the term, which is to ensure that someone familiar with the operations generating the hazardous waste is aware of and able to attend to the operations, if needed, while also providing some measure of controlled access.
Comment: 18 commenters propose the following (Commenters 89, 99, 128, 133, 168, 200, 201, 217, 219, 223, 224, 229, 230, 232, 240, 242, 248, 274):
· EPA not mandate a lock and key for each area under an operator's control (Commenters 89, 133, 200, 217, 219, 224, 274).· A SAA on a property that has restricted entry does not necessarily require that the specific satellite unit be locked (Commenter 128).· Change the definition to "at or near the point of generation where the operator controls access" (Commenter 99, 230, 242).· Add a requirement to periodically inspect SAA (Commenter 223, 229, 232, 248).· Include additional, broader examples in the preamble applicable to retail manufacturing sites where it is not feasible to have individually locked containers (Commenters 133, 168, 200, 217, 219, 224).· Remove or confine the examples to the preamble as it would be impossible to fully cover all instances of `under the control of the operator' (Commenter 240).· Visual contact by the operator generating the waste also constitutes "under the control of the operator" (Commenters 201, 229). Situations where the operator is regularly within view of the SAA during the course of their job, or a situation where the operator is expected to be able to observe any individuals that may enter or exit the SAA (Commenter 217).
EPA Response: EPA is not mandating any particular practice to the meet the intent of this provision. The examples discussed in the preamble to the proposed rule and final rule are not an all-inclusive or exhaustive list of practices that may be used to meet the requirement that hazardous waste in an SAA must be "under the control of the operator." Implementing regulatory agencies may consider these examples or alternatives to meet the intent of the term, which is to ensure that someone familiar with the operations generating the hazardous waste is aware of and able to attend to the operations, if needed, while also providing some measure of controlled access.
Comment: One commenter requested that the proposed changes not jeopardize a state's prior RCRA authorizations regarding less stringent SAA requirements (Commenter 174).
EPA Response: The Agency deliberately did not propose or finalize any regulatory text to define the term "under the control of the operator" and therefore this preamble discussion will not jeopardize a state's prior authorization.
Comment: Five commenters suggested EPA either provide more thorough definition of `operator' and allow multiple individual `operators' to access the SAA (Commenters 78, 97, 182, 196, 217):
· In a 24/7 production operation where one machine creates 1 gallon of spent solvent per shift; the technician operating the machine collects that gallon at the end of shift and pours it into a 55 gallon drum and leaves. The next technician takes over. In this instance the "operator" is the technician on shift, regardless of name. In a paint shop where multiple workers clean their spray guns at a common location and collect the waste, the operator is the foreman or supervisor of the paint shop. In a laboratory setting where multiple individuals cause waste to be created they can use a common container for the same or compatible waste. In this instance the operator is the individual in charge of the laboratory, this could be an instructor, primary investigator, or laboratory manager (Commenter 97).
EPA Response: The Agency believes that there can be more than one operator per SAA over time. For example, as employees change shifts over the course of a day, the role of the operator can be transferred from one employee to another. Likewise, the Agency believes that there can also be more than one operator per SAA at the same time. For example, multiple operators may be running laboratory equipment in the same room and share hazardous waste containers located in a single SAA (RCRA Online # 14703). 
The term "operator" is already defined under 260.10 and therefore we did not propose a new definition. However, in the satellite accumulation area regulations, we use the phrase "under the control of the operator of the process generating the waste" [emphasis added]. Taken as a whole, this phrase is intended to refer to the individual(s) in charge of the particular process that generates the hazardous waste and is not intended to refer to the company that is responsible for the overall operation of the facility.

Section 4.8.8 - Other

Comment: One commenter believes that the following language should be added to the end of proposed §262.15(a)(1): "in accordance with §262.16 or 262.17, as appropriate" to clarify what would need to be done with a leaking or poor-condition container in a SAA (Commenter 178).
EPA Response: EPA agrees and has made the suggested change.
Comment: Marking containers in SAAs with the words "Hazardous Waste" (Commenters 121, 128, 168). SAA staff should not have to be fully trained to make such determinations.
EPA Response: Although the Agency did request comment in this area, the final regulations do not require training of personnel working in SAAs. Personnel that have access to or work in central accumulation areas, including those that move hazardous waste from a SAA to a central accumulation area, must be trained. As the ones actually generating hazardous waste, however, personnel working in SAAs need to be familiar enough with the chemicals with which they are working to know when they have generated a hazardous waste so that it will be managed in accordance with the RCRA regulations.

Section 4.9 - SQGs accumulating in drip pads or containment buildings

Comment: 39. Regarding SQGs accumulating hazardous waste on drip pads and in containment buildings  -  Section VIII.J.1-2., pages 57966-57969: Colorado has very few, if any, of these types of units and therefore has no comment on the proposal. (0085)
Response: No response necessary. 
Comment: Comment D suggests that generators accumulating hazardous waste on drip pads should be allowed to take advantage of the very small quantity generator (VSQG) standards if their hazardous waste generation falls within VSQG limits. (0164)
Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter. In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations.  In fact, EPA has previously acknowledged that such a situation may occur where generators accumulating hazardous waste on drip pads are allowed to take advantage of the very small quantity generator (VSQG) standards if their hazardous waste generation falls within VSQG limits. Such an example would be, for example, wood treatment facilities that recycle their wood preserving wastewaters and spent wood preserving solutions under a particular solid waste exclusion (40 CFR 261.4 (a)(9)(iii)). However, allowing hazardous wastes to fall onto the ground is viewed as illegal disposal, and may result in enforcement action if inspectors determine that such disposal threatens human health or the environment. As such, it is prudent for all wood preserving facilities, even if conditionally exempt, to ensure that they are operating their drip pads in an environmentally safe and responsible manner. Therefore, VSQGs, accumulating hazardous wastes on drip pads must comply with 40 CFR subpart W requirements, except 40 CFR 265.445 (c).    

Comment: DTSC is not aware of any SQGs using drip pads and believes California's incorporation of only subsections (d), (e) and (f) of 66262.34 for SQGs may serve as a model structure supporting that SQGs may not use drip pads. Should EPA pursue clarifying changes to allow SQGs to use drip pads (and containment buildings), DTSC requests EPA provide states the option of not adopting this provision. DTSC is concerned that many SQGs may not have the financial wherewithal to properly operate, maintain and close such units. (0174)
Response: The Agency is finalizing the regulations associated with the accumulation of hazardous waste on drip pads for SQGs and LQGs § 262.16(b)(4) and § 262.17(a)(3), respectively. This provision was previously found at § 262.34(a)(1)(iii) for LQGs only. This provision states that a generator with drip pads must comply with subpart W of 40 CFR part 265, and, consistent with existing regulations, must remove all hazardous wastes from the drip pad and associated collection system within every 90 days. Once the hazardous wastes is removed from a drip pad, LQGs will have up to 90 days and SQGs up to 180 days to accumulate the hazardous wastes without a permit or interim status. SQGs and LQGs would also have to maintain the following records at the facility by use of inventory logs, monitoring equipment, or any other effective means:  records that describe the procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and records that document each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal. 

Similarly, the Agency has issued guidance concerning SQGs generating hazardous wastes at wood preserving facilities on drip pads so we have no reason to require SQGs drip pad operators to comply with LQG requirements  -  unless there was systemic problems which the Agency is unaware of. The Agency understands DTSC's concerns about the potential that "many SQGs may not have the financial wherewithal to properly operate, maintain and close such units." However, the states may always be more stringent than the federal program in their regulatory requirements.

Comment: Preamble Section VIII.J. In this section, EPA proposes to clarify that SQGs may store hazardous waste in drip pads and containment buildings. The existing regulations are unclear as to whether or not SQGs may store their waste in such units. CT DEEP disagrees with EPA that SQGs should be allowed to use these types of units (see Comment 18 above for CT DEEP's reasoning for this conclusion). Furthermore, CT DEEP believes that very few, if any, SQGs will be likely to need or want to operate these types of units. As noted in Comment 18 above, drip pads are typically operated by companies engaging in wood preserving (which are almost always LQGs), and containment buildings are almost always used for remediation projects that involve large amounts of waste (therefore also almost always LQGs.). CT DEEP believes that in the rare circumstance that an SQG needs or wants to use one of these units, they should be required to operate under the more protective LQG requirements. (0178)
Response: While the Agency understands CT DEEP's concerns, we have no evidence to suggest SQG wood preserving operations will pose unacceptable risks. Considering SQGs are limited in the amount of hazardous wastes they can accumulate at any one time (i.e., 6,000 kg), that also may alleviate concerns. Similarly, the states may always be more stringent than the federal program in their regulatory requirements for drip pad operations.

Comment: In this section, EPA also proposes to require SQGs to comply with the same marking and labeling requirements as LQGs for their drip pads and containment buildings. CT DEEP does not support this part of the proposal, since we do not believe it is even appropriate for SQGs to use these types of units. These types of storage units are complicated and require a fairly high level of knowledge and expertise to properly construct and operate.

In fact, SQGs are actually prohibited from storing hazardous waste in drip pads and containment buildings in Connecticut's current hazardous waste regulations for these reasons. See also comment 25 below. (0178)
Response: The Agency is in disagreement with CT DEEP on this provision. The Agency believes wood preserving operations that generate SQG quantities of hazardous waste should be allowed to comply with SQG requirements and conditions  -  just like other type of generators. Regarding marking and labeling, the Agency is not finalizing the provision that would require SQGs and LQGs to mark drip pads with the words "Hazardous Waste" in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc. As stated by one commenter, labeling the entire drip pad with the words "Hazardous Waste" is inaccurate because not all of the materials on the drip pad are hazardous waste, such as the poles and lumber being treated on the drip pad.  Finally, the drums stored on the drip pad or drum storage area that contain hazardous waste and the drum storage area would already be labeled with those words.  Similarly, identifying the hazards of wastes is inappropriate because drip pads contain both wastes and components of treated wood operations. 

Similarly, we have modified where inventory logs or records for drip pads must be kept. We had proposed that the information must be in close proximity to the drip pad. Commenters indicated that having records in close proximity may not always be practical or even desirable. In response to comments, we have modified the regulations so that the records must be kept on site and readily available for inspections.  

Comment: 57949 - (Conditions for exemption) for on site management of waste in containers, tanks, drip pads and containment buildings.
:: Clarify the status of units similar to drip pads used to collect waste and direct it to a sump for transfer to an exempt waste water treatment unit. The pad itself is not a tank, but does it fall within the definition of "ancillary equipment?" Does the WWTU have to discharge, or can it be a unit established to eliminate the discharge of waste water? (0214)
Response: EPA does not define "pad" under the federal RCRA regulations, other than "Drip Pads" in 40 CFR 260.10 which as EPA understands this comment, is not the specific unit in question (i.e., the commenter asks about the "status of units similar to drip pads.." but specifically not drip pads).     However, EPA defines "ancillary equipment" as "any device  including, but not limited to, such devises as piping, fittings, flanges, valves, and pumps..."  40 CFR 260.10.  Whether or not a particular structure may be considered "ancillary equipment" to a tank (i.e., part of a "tank system" as defined in 260.10) would be a fact-specific determination, and is beyond the scope of this rule.  Regarding whether or not tank system that meets the definition of an exempt WWTU under RCRA must have a discharge, or alternatively, may be a unit established to eliminate the discharge of wastewater, EPA has previously stated that the WWTU definition covers "...devices in industrial wastewater treatment systems which (1) produce a treated wastewater effluent which is discharged into surface waters or into a POTW sewer system and therefore is subject to the NPDES or pretreatment requirements of the Clean Water Act or (2) produce no treated wastewater effluent as a direct result of such requirements."  Emphasis added. See November 17, 1980 Federal Register, 45 FR at 76078; and September 2, 1988 Federal Register, 53 FR at 34080.  
Comment: 57951 
:: Drip pad requirements already require the generator to document periodic pad cleaning - not sure that more is necessary. However, it is necessary to spell out how these provisions will affect CESQGs that have to construct their pads in accordance with Subpart W in order to maintain their exemption, for recycled drippage. The CESQG rule should include specific references to the drip pad exclusion 261.4(a)(9).
Response: Any wood preserving facilities that want to take advantage of the exclusion at 40 CFR 261.4(a)(9) must comply with the drip pad standards in 40 CFR subpart W, as a condition of the exclusion itself, even if the exclusion results in the owner/operator becoming a CESQG (VSQG).  See 261.4(a)(9)(iii)(D), which states, "Any drip pad used to manage the wastewaters and/or spent wood preserving solutions prior to reuse complies with the standards in part 265, subpart W of this chapter, regardless of whether the plant generates a total of less than 100 kg/month of hazardous waste." EPA thanks the commenter for the suggestion of cross-referencing the VSQG regulations with the specific exclusion, but notes that the exclusion is not limited to VSQGs, operators should already well familiar with the scope and applicability of the exclusion, and such a reference would likely have to be added to all of the generator categories for consistency, which would run counter to the goal of simplifying the generator regulations.
Comment: :: Containment building turnover - demonstration that the unit turns over at least once every 90 days. (0214)
Response: Generators are responsible for describing in their records how waste accumulated in containment buildings is removed with every 90 days.

Comment: :: Not sure how that will work as a practical matter. A unit collecting blast furnace slag is partially certified for treatment of the slag, when excess slag accumulates in amounts that cannot be re-used within the process. The slag does not appear to have been accumulated speculatively (check on site generator provisions for speculative accumulation documentation changes in 2015 FR). (0214)
Response: If we understand the comment correctly, yes, the generator would have to refer to the speculative provisions in 40 CFR 261.1 (c) (8) to determine how to address excess slag accumulation.
Comment: :: Container inspections -Does EPA's change include satellite containers? 
Response: The Agency does not understand the context of this comment. If the comment refers to container inspections, the Agency did not change inspection requirements for generators.     
Comment: :: WWTUs that manage hazardous waste prior to discharge should also be subject to weekly inspections and corrective action. We have far more environmental damage incidents associated with WWTUs than with tank storage.
Response: The Agency does not understand the context of this question and therefore we cannot comment. However, in any case, this comment is beyond the scope of the proposed rule.  

Comment: :: SQGs accumulating HW on drip pads - change in language now allows? Previous language only allowed CESQGs (pursuant to an exclusion) and LQGs. (0214) 

Response: Yes, the Agency is proposing that SQGs be allowed to accumulate hazardous waste on drip pads consistent with complying with subpart W requirements and all other requirements applicable to SQGs.
Comment: 57968
:: The only circumstance I can envision for a generator to transfer wastes from a container to a drip pad would be if a generator has had a spill, and is bringing the contaminated soil onto the drip pad to conduct soil washing or similar treatment.  (0214)
Response: The Agency is unfamiliar with such a scenario, but such a scenario may be possible. If such a scenario did occur, the facility would probably need to contact the state to make sure such treatment was allowable without having to obtain a RCRA permit. 

Comment: :: Under Subpart W, a drip pad is a structure used to convey treated wood preservative drippage, precipitation or runoff to an associated collection system. I would question whether a pad used to manage other wastes would still be defined as a drip pad, rather than a waste pile or surface impoundment. (0214)
Response: The Agency agrees with this comment but cannot conceive of why a wood treater wood would manage other wastes on a drip pad rather than in a container because of the potential regulatory consequences. 

Comment: :: Containment Buildings for SQGs
o If the SQG regulations are modified to allow management in containment buildings, clarify how to differentiate between containment buildings and manufacturing process buildings with floor sumps that collect waste and direct it to a waste water treatment unit. Specific examples include hangars used to strip paint from aircraft, where rinse waters are directed to floor drains and trenches that may discharge to a pretreatment unit or to a rinse water recycling system. Electroplating operations are also usually located within a containment system with a sump to collect dragout and directs it to the WWTU. At what point do incidental spills become routine management practices? (0214)

Response: As described at subpart DD of part 265, containment buildings are specially designed and constructed buildings that address the waste accumulation of hazardous wastes. Manufacturing process buildings may or may not have similar design specifications, but if they are not generating or accumulating hazardous wastes, they need not comply with subpart DD requirements.   
Comment: 80 FR 57967, column 1 (VIII., J., 1.)
Accumulation of Hazardous Waste on Drip Pads
The MPCA supports the proposed revisions to clarify the requirements applicable to SQGs accumulating hazardous waste on drip pads for the reasons discussed by the EPA at 80 FR 57967-57968. The MPCA notes that confusion regarding these requirements is likely very prevalent under the existing federal regulation language among not only generators, but also among regulators, as evidenced by Minnesota's current regulations, which incorrectly explicitly allow SQGs to accumulate hazardous waste on drip pads for the same 180 day interval afforded to SQGs for accumulation of hazardous waste in containers or tanks. Unfortunately, the EPA's first clarifying guidance publication referenced at 80 FR 57967 was not issued (1996) until after Minnesota had already adopted its state regulation regarding SQG drip pad accumulation in 1994 [18 SR 1751; revising Minn. R. 7045.0292, Subp. 5, Item B], based on the MPCA's then-understanding of the applicable federal requirements. The MPCA was unaware of this resultant gap between its state regulatory text and the interpretation of the federal regulations until reviewing this proposal. However, the MPCA notes that it is not aware of any SQGs in Minnesota currently or with known plans in future to accumulate hazardous waste on drip pads, and therefore the MPCA believes it is likely this disparity has not created any risk to human health or the environment in Minnesota.

80 FR 57968, column 2 (VIII., J., 2.)
Accumulation of Hazardous Waste in Containment Buildings
The MPCA supports the proposed revisions to clarify the requirements applicable to SQGs accumulating hazardous waste in containment buildings for the reasons discussed by the EPA at 80 FR 57968-57969. The MPCA notes that Minnesota does not currently allow any generators to accumulate hazardous waste in containment buildings without obtaining a TSDF Permit, and thus this clarification will be inapplicable in Minnesota [Minn. R. 7045.0292]. (0232)
Response: The Agency appreciates MPCA's comments. States may be more stringent than the federal program and in this case have chosen to be regarding containment buildings. 
Comment: Pages 57966-68: 
J. SQGs Accumulating Hazardous Waste on Drip Pads and in Containment Buildings (40 CFR 262.34(d))
1. Accumulation of Hazardous Waste on Drip Pads

DC agrees with the proposed change. 


DC suggests the use of a log (electronic or paper, similar to that proposed for tanks) would be sufficient to show how much time has elapsed since the creation / identification of the waste on a drip pad. The accumulation time clock should begin when the waste is generated / identified, as with waste in containers; transferring waste from a drip pad to a container or a tank should not allow the Generator additional storage time. The modified regulations should follow the model for containers: a facility can collect Hazardous Waste in small bottles and then consolidate to a 55 gallon drum; this does not gain them additional storage time, the clock starts when the first drop of waste is identified regardless of the container it is placed in - tanks and drip pads should be treated similarly.

Page 57968:
2. Accumulation of Hazardous Waste in Containment Buildings

DC agrees that making the regulations for all containment buildings (both at SQGs and LQGs) match the more stringent requirements would be beneficial. (0248)
Response: The Agency appreciates the above comments from the DC government. We believe the final rule responds to DC's comments. The Agency is finalizing the regulations associated with the accumulation of hazardous waste on drip pads for SQGs and LQGs § 262.16(b)(4) and § 262.17(a)(3), respectively. This provision was previously found at § 262.34(a)(1)(iii) for LQGs only. This provision states that a generator with drip pads must meet certain conditions for exemption from permitting and technical requirements for drip pads. Specifically, such a generator must comply with subpart W of 40 CFR part 265, and, consistent with existing regulations, must remove all hazardous wastes from the drip pad and associated collection system within every 90 days. Once the hazardous wastes was removed from a drip pad, LQGs would have up to 90 days and SQGs up to 180 days to accumulate the hazardous wastes without a permit or interim status. SQGs and LQGs would also have to maintain the following records at the facility by use of inventory logs, monitoring equipment, or any other effective means:  records that describe the procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and records that document each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal. 

Comment: 40 CFR 262.16 Conditions for exemption for a small quantity generator...

:: 262.16 (5) an (5) (ii) an d(iii) limits storage in buildings to 90 days  -  this looks like a typo please increasing to 180 days to maintain consistency with other SQG requirements.

:: 262.16 (5) (i) and also 262.17 requires that a professional engineer certify that the building complies with the design standards specified in 40 CFR 265.1101. This requirement is overly onerous for anyone other than a permitted TSDF and would have very little benefit especially considering that some facilities may use a flammable storage cabinet in a building as the central accumulation area. (0280)

Response: The Agency has chosen not to increase SQG accumulation requirements for containment buildings to 180 days because of the complexity associated with these type units. Similarly, because of the complexity associated with containment buildings, the Agency believes certification by a professional engineer is needed for SQGs accumulating hazardous wastes in containment buildings.
Section 4.9.1 - SQGs comply with technical standards for unit but otherwise SQGs

Comment: - EPA should allow SQGs that accumulate hazardous waste on drip pads without a permit or interim status 180 days to comply with related technical standards; (0093)

Response: The Agency agrees with this commenter and has finalized the regulations to allow for this waste accumulation time period.
Section 4.9.2 - 90-day limit applies to accumulation in drip pad or containment building
 
Comment: EPA has proposed to modify the regulations at § 262.34(d) to require SQGs that accumulate hazardous waste for 90 days or less on drip pads without a permit or interim status to comply with the technical standards set forth in 40 CFR Part 265 subpart W. Id. at 57966. USWAG strongly urges EPA to extend the requirements in this section to apply to SQGs that accumulate hazardous waste for 180 days instead of 90 days. (0093)
Response: The Agency agrees with this commenter and has finalized the regulations to allow for this waste accumulation time period.
Comment: Regarding certain other proposed provisions, TWC is concerned that, in its effort to consolidate regulations and make unit-specific regulations more uniform, EPA failed to take into account the unique nature of drip pads as hazardous waste accumulation units, causing these provisions to be unduly burdensome or unworkable when applied to drip pads. Most importantly, the proposed rule and the preamble fail to recognize that generators' obligation to remove hazardous waste from drip pads every 90 days is distinct from, and does not count toward, large quantity generator (LQG) and small quantity generator (SQG) hazardous waste accumulation time limits. If this discrepancy is not resolved, generators accumulating hazardous waste on drip pads could be faced with excessive and infeasible hazardous waste shipping requirements. We hope that our comments assist EPA in remedying this and other issues. (0164)
Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations. 
Comment: Of primary concern to TWC is the proposed rule and preamble's failure to acknowledge that the obligation that generators remove hazardous waste from drip pads every 90 days is separate and in addition to the hazardous waste accumulation time limits imposed on large quantity generators (LQGs) and small quantity generators (SQGs). In Comment A, TWC discusses this concern and suggests changes to three proposed provisions to remedy this issue. (0164)
Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter. In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations.
Comment: A. Application of the 90-Day Accumulation Limit to Generators Who Accumulate Hazardous Waste on Drip Pads

In the preamble and in the proposed rule, EPA appears to conflate two separate time limits: (1) the obligation that generators clean drip pads every 90 days [Footnote 1: This obligation is located at 40 C.F.R. § 262.34(a)(1)(iii) in the current regulations.] and (2) the 90-day or 180-day "clock" for accumulation applied to LQGs and SQGs. [Footnote 2: These "clock" provisions are located at 40 C.F.R. §§ 262.34(a) (LQGs) and 262.34(d) (SQGs) in the current regulations.] See 40 C.F.R. §§ 262.16(b)(4), 262.16(b)(6)(ii)(C) (SQGs), 262.17(a)(5)(ii)(C) (LQGs); 80 Fed. Reg. 57,951, cols. 2 - 3, 57,968, col. 1. These are, in fact, two separate time limits under current practice and the existing regulations and, if combined, would create an untenable burden on wood treatment facilities.

For SQGs and LQGs accumulating hazardous waste on drip pads, the proposed rule would require generators to "[u]se inventory logs, monitoring equipment or records to identify the date upon which each period of accumulation begins." See §§ 262.16(b)(6)(ii)(C) (SQGs), 262.17(a)(5)(ii)(C) (LQGs). The proposed rule also would add a provision requiring generators to maintain "[a] written description of procedures that will identify the date hazardous waste first entered the drip pad and ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days." See § 262.16(b)(4)(i) (SQGs), § 262.17(a)(3)(i) (LQGs) (emphasis added).

EPA explains that it is adding these provisions to ensure that the generator operating a drip pad does not exceed its "90-day accumulation time limitation." See 80 Fed. Reg. 57,951, col. 3. EPA further explains that the 90-day accumulation documentation is important for SQGs because they can move waste from one type of accumulation unit to another as long as the accumulation time on the drip pad does not exceed 90 days and the total accumulation time on the drip pad and other units does not exceed 180 days. See id. at 57,951, col. 3, 57,968, col. 1. [Footnote 3: EPA states the following regarding SQG accumulation of hazardous waste on a drip pad: "The Agency is proposing that the SQG have up to a total of 180 days to accumulate the hazardous wastes, which includes both the time the waste is on a drip pad and when it is in a tank or container, but that the total amount of time to accumulate the hazardous waste on the drip pad must not exceed 90 days." 80 Fed. Reg. 57,968, col. 1.] These statements demonstrate either an unintentional misinterpretation of existing regulations and standard industry practice, or a drastic and infeasible change in the regulation of generators accumulating hazardous waste on drip pads. EPA proposes to add documentation obligations to two separate 90-day time limits, and then describes them interchangeably as if they are one in the same.
Response: The commenter is correct. There was an unintentional misinterpretation of the existing regulations by the Agency and, in the final rule, we are not making the proposed changes, and are maintaining the existing regulations.  

Comment: As the regulations currently exist, generators (both LQGs and SQGs) accumulating hazardous waste on drip pads are required to clean the drip pads every 90 days. [Footnote 4: The current 40 C.F.R. § 262.34(a)(1)(iii) states that, to avoid permitting or interim status requirements, a generator accumulating hazardous waste on drip pads must "compl[y] with subpart W of 40 CFR part 265 and maintain[] the following records at the facility: (A) A description of procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and (B) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal." In the current regulations, this drip-pad-specific provision has been interpreted to apply to SQGs accumulating hazardous waste on drip pads and is separate from the general provision that LQGs may accumulate waste on-site for 90 days or less.] The separate 90-day (LQG) or 180-day (SQG) accumulation clock does not start until the hazardous waste has been moved to the designated 90-day or 180-day storage area. [Footnote 5: The 90- or 180-day accumulation clock also does not include the time that the hazardous waste initially accumulated on a drip pad is then accumulated (after being removed from the drip pad at least every 90 days) in a satellite accumulation area under the current § 262.34(c) and proposed § 262.15.] EPA's technical guidance document clearly states that this is the procedure for generators accumulating hazardous waste on drip pads. See U.S. Envtl. Prot. Agency, Wood Preserving Resource Conservation and Recovery Act Compliance Guide: A Guide to Federal Environmental Regulation, EPA-305-B- 96-001, at section 5-17 (June 1996). The guidance document poses the following question: "After cleaning the drip pad and the collection system (sumps) every 90 days, as required for large and small quantity generators, how long can the hazardous waste remain on site?" EPA answers by stating, "If the hazardous waste is placed in satellite accumulations areas, the waste can remain there until the drum is full. Once the drum is full, it must be dated and moved to the hazardous waste storage area. The 90 or 180 day accumulation clock starts once the hazardous waste has been sealed into a drum or placed in a tank." See id.

In contrast, the proposed regulation suggests that the 90-day (LQG) or 180-day (SQG) accumulation clock starts the minute a generator places hazardous waste on the drip pad. Under this interpretation, LQGs could be required to clean their drip pads much more frequently in order to schedule a transfer of the hazardous waste before the single 90-day-limit ends. SQGs using drip pads may fare little better; their allowed accumulation time of hazardous waste from drip pads, once removed from the drip pad, may be cut in half, from the current 180 days to 90 days. Generators may be forced to constantly ship drums with very little hazardous waste in them. TWC presumes that EPA did not intend to upend the current process, which functions effectively, and requests that this issue be clarified in the final rule.

As a separate point but related to this discussion, EPA should not require that generators accumulating hazardous waste on drip pads "identify the date hazardous waste first entered the drip pad" because it is duplicative and unnecessary. See §§ 262.16(b)(4)(i) (SQGs), 262.17(a)(3)(i) (LQGs). Under existing regulations, each waste removal is required to be documented to ensure that hazardous waste does not remain on the drip pad for more than 90 days. [Footnote 6: In the current regulations, this provision is located at § 262.34(a)(1)(iii)(B) and applies to LQGs and SQGs. In the proposed reorganization, the drip pad hazardous waste removal documentation provision is located at §§ 262.16(b)(4)(ii) (SQGs), 262.17(a)(3)(ii) (LQGs).] The existing documentation provision therefore already provides the assurance that EPA seeks, i.e., that hazardous waste does not remain on the drip pad for more than 90 days.

The use of a drip pad as a hazardous waste accumulation unit is independent of generator status and the accumulation times associated with each generator category. The drip pad is unique to the wood treating industry and is not a structure driven by the volume of waste generated. Hazardous waste from a treating operation comes from multiple sources, such as drippage and residuals from the drip pad, trash and debris from the treating process, waste from the tank farm, wastewater treatment residuals, and personal protective equipment (PPE). It would be impractical to handle these wastes differently depending on whether they were first accumulated on a drip pad. Furthermore, once this issue is clarified, the proposed provision requiring drip pad operators to document the date hazardous waste first enters the drip pad will be unnecessary.

TWC assumes that, in its proposed rule, EPA did not intend such a drastic policy change as described above. Therefore, TWC requests that EPA make the following changes to the rule:

1. Remove all references to drip pads in 40 C.F.R. § 262.16(b)(6) (SQGs) and 40 C.F.R. § 262.17(a)(5) (LQGs). [Footnote 7: This Comment (Comment A) explains why §§ 262.16(b)(6)(ii)(C) (SQGs) and 262.17(a)(5)(ii)(C) (LQGs), requiring hazardous waste generators to "use inventory logs, monitoring equipment or records to identify the date upon which each period of accumulation begins" should not be applied to drip pad operations. In Comments B and C, TWC explains why we object to the two other labeling and marking obligations of §§ 262.16(b)(6)(ii) and 262.17(a)(5)(ii) (subsections (A) and (B)). To simplify our comments, TWC requests here that EPA entirely remove the reference to drip pads from §§ 262.16(b)(6) and 262.17(a)(5).] Drip pads are a unique hazardous waste accumulation unit and do not appropriately fit with proposals contained in these two provisions.

2. Revise the proposed SQG-related provision at § 262.16(b)(4) to state the following:

"(4) Accumulation of hazardous waste on drip pads. A small quantity generator may accumulate hazardous waste on drip pads without a permit or without having interim status provided that it complies with 40 CFR part 265 subpart W. The generator must maintain at the facility the following records by use of inventory logs, monitoring equipment, or any other effective means: (i) A written description of the procedures that will ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and (ii) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal."

These changes [Footnote 8: "[F]or 90 days or less" was removed from § 262.16(b)(4) and "identify the date hazardous waste first entered the drip pad and" was removed from § 262.16(b)(4)(i).] will achieve EPA's goal of clarifying the obligations that apply to SQGs accumulating hazardous waste on drip pads (removing hazardous waste from the drip pad every 90 days, complying with 40 C.F.R. part 265 subpart W management standards, and abiding by all other SQG-specific provisions) without imposing a redundant, unnecessary documentation obligation and confusing two separate accumulation time limits.

3. Revise the proposed LQG-related provision at § 262.17(a)(3)(i) to state the following:

"(i) A written description of procedures that will ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days."

Deleting "identify the date hazardous waste first entered the drip pad and" will remove an unnecessary and duplicative documentation obligation.

TWC respectfully urges EPA to adopt these three changes to ensure that the proposed regulations do not unintentionally alter the established interpretation of regulations applied to hazardous waste accumulation by generators on drip pads. This issue is of vital importance to the wood treating industry. (0164)
Response: The following response summarizes the above comments from Commenter 0164/290 or the Treated Wood Council (TWC). The responses are organized by the major sections of TWC's comments to the Agency.  
       A: Application of the 90-day accumulation limit to generators who accumulate hazardous waste on drip pads
Response: The Agency is maintaining the regulations originally found at 40 CFR 262.34 (a)(1)(iii) for both LQGs (and now) SQGs that accumulate hazardous wastes on drip pads.  Both SQGs and LQGs must comply with Subpart W of 40 CFR part 265; and remove all wastes from the drip pad at least once every 90 days. Any hazardous wastes removed from the drip pad by an LQG is then subject to the 90-day accumulation limit while an SQG is subject to the 180-day accumulation limit if the hazardous wastes are being managed in satellite accumulation areas prior to being moved to a central accumulation area.
      B: Requiring drip pads to be labeled with the words "hazardous waste."
Response: The Agency is not finalizing the provision that would require SQGs and LQGs to mark drip pads with the words "Hazardous Waste" in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc. Based upon comments from the industry association representing wood treaters, and upon reexamination of how this proposed provision would be implemented in practice, EPA agrees with the commenter's observation that labeling the entire drip pad with the words "Hazardous Waste" would be inaccurate because not all of the materials on the drip pad are hazardous waste, such as the poles and lumber being treated on the drip pad. Also, identifying the hazards of wastes is inappropriate because drip pads contain both wastes and components of treated wood operations. Finally, any containers stored on the drip pad or drum storage area that contain hazardous waste and the drum storage area would already be labeled with the words "Hazardous Waste."  
      C: Requiring Generators who accumulate hazardous waste on drip pads to use inventory logs, monitoring equipment, or records to identify drip pad contents and associated hazards.
Response: The commenter opposed these proposed requirements, noting that these requirements were duplicative and unnecessary.  Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees, and in the final rule, the Agency has not modified the existing record keeping requirements for generators that accumulate hazardous waste on drip pads. More specifically, both SQGs and LQGs must maintain on site at the facility the following records readily available for inspection:
            (A) A written description of procedures that are followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and
            (B) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal.
      D. Generator closure regulations
Response: The final rule requires LQGs to notify their authorized state or EPA region when they intend to close their facility, and notify subsequently if the facility has met or not met the applicable closure performance standards.  When closing a waste accumulation unit associated with drip pad operations, either place a notice in their operating record that they have closed the unit, or notify their authorized state or EPA region they intend to close and notify also if the facility has met or not met the applicable closure performance standards. 
Similarly, the final rule maintains the general closure performance requirements for drip pads previously found at 40 CFR 265.111 and 265.114 and 40 CFR subpart W (except 40 CFR 265.445 (c)). However, the regulatory citations change. LQGs must comply with the general closure performance standard provisions previously found at 40 CFR 265.111 and 265.114, but now found at 40 CFR 262.17 (a) (8) (iii) (A) (1) and (3) as well as the specific closure requirements for drip pads at 40 CFR 265.445 (a) and (b). 
      E: Including drip pad operators in the proposed episodic generator provisions
Response: Generators who are drip pad operators may take advantage of the episodic generation provisions, if as result of a planned or unplanned event, a change in regulatory category were to occur.  For instance, an upset condition during production could occur where removal of all wastes from the drip pad had to occur resulting in an unexpected change in generator category.  However, episodic generation provisions would still apply to wastes once removed from the drip pad. However, changes in regulatory category; i.e., changes in the amount of hazardous waste generated when removed from a drip pad, based strictly on changes in production would not be a reason to take advantage of this provision.
       F: Requiring LQGs and SQGs operating drip pads to maintain records of drip pad inspections
Response: The Agency did not change the existing inspection recordkeeping requirements for drip pads found at 40 CFR 265.444 (b) and subsequently at 40 CFR 265.443 (m) for remedial action required if deterioration or leakage is detected.  
Comment: Section VIII.J.1 (Page 57968): One State believes the accumulation timeframe should be the same for SQGs no matter the unit type. The SQG accumulation timeframe limitation should be 180 days for containers, tanks, or drip pads. Being consistent will help improve and encourage compliance.

Section VIII.J.2 (Page 57968): One State believes the accumulation timeframe should be the same for SQGs no matter the unit type. The SQG accumulation timeframe limitation should be 180 days for containers, tanks, or containment buildings. Being consistent will help improve and encourage compliance. (0217)
Response: The Agency has modified the accumulation time period for SQGs accumulating hazardous wastes once removed from drip pads to 180 days, consistent with SQGs accumulating hazardous wastes in containers and in tanks. However, because of the complexity associated with containment buildings, we continue to require SQGs accumulating hazardous wastes in containment buildings to remain at 90 days  -  or the accumulation time period for LQGs.
Section 4.9.3 - Procedures for documenting 90-day limit
 
Comment: iii. Drip Pad and Containment Building Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3)).
Current regulations found at 262.34(a)(1)(iii)(A) and (B) require a description of the procedures that will be followed in order to ensure all wastes are removed from the drip pad and associated collection system at least once every 90 days, and document the waste removed, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal and/or (iv) a containment building certified by a PE; a written description of procedures to ensure that each waste volume remains in the unit for no more than 90 days, waste generation and management practices for the facility showing that they are consistent with respecting the 90 day limit, the procedures are complied with, or the unit is emptied at least once every 90 days.
DTSC supports the amendments to 40 CFR 262 regarding other accumulation unit marking and labeling and inventorying. (0174)

Response: The Agency is reverting back to the pre-existing regulatory text for hazardous wastes accumulated on drip pads and in containment buildings to avoid confusion. The Agency inadvertently modified the regulatory text incorrectly in the proposed rule.
Section 4.9.4 - Other

Comment: D. Generators Accumulating Hazardous Waste on Drip Pads and Very Small Quantity Generator Conditions

In the proposal, EPA takes the position that "CESQGs [now VSQGs] are prohibited from using a drip pad . . . ." See 80 Fed. Reg. 57,974, col. 1. However, we believe this statement is incorrect because no such prohibition is stated in the current or proposed hazardous waste generator regulations. The statement also contradicts an EPA technical guidance document stating, "Only the smallest wood preserving facilities would normally qualify for [the CESQG] category," implicitly recognizing that generators accumulating hazardous waste on drip pads could be regulated as CESQGs if they fall within the CESQG hazardous waste accumulation limits. See Wood Preserving Guide, supra, at section 3-8.

TWC requests that EPA add language similar to that contained in § 262.16(b)(4) (SQG accumulation of hazardous waste on drip pads), as modified under Comment A, to § 262.14 (conditions for exemption for a VSQG). The suggested language for § 262.14 is as follows:

"Accumulation of hazardous waste on drip pads. A very small quantity generator, operating in accordance with 40 C.F.R. § 261.4(a)(9)(iii), may accumulate hazardous waste on drip pads without a permit or without having interim status provided that it complies with 40 C.F.R. part 265 subpart W. The generator must maintain at the facility the following records by use of inventory logs, monitoring equipment, or any other effective means: (i) A written description of the procedures that will ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and (ii) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal."

With this addition, VSQGs accumulating hazardous waste on drip pads would be required to comply with the drip-pad-specific regulations in 40 C.F.R. part 265 subpart W and with the standard that hazardous waste must be removed from drip pads every 90 days, but otherwise could comply with the standards specific to VSQGs.

If a generator operating a drip pad generates, in a month, an amount of hazardous waste that falls within the VSQG limits, that generator should be allowed to take advantage of the less stringent VSQG standards; it should not matter that the generator accumulated hazardous waste on a drip pad. As explained in Comment A, above, the provision requiring hazardous waste to be removed from drip pads every 90 days is separate from the 90-day accumulation limit for LQGs and the 180-day accumulation limit for SQGs. VSQGs accumulating hazardous waste on drip pads should be held to the same 90-day drip pad hazardous waste removal standard currently applied to LQGs and SQGs operating drip pads. [Footnote 15: If EPA were to adopt this proposal, VSQGs operating drip pads would also be required to comply with the drip pad-specific regulations contained in 40 C.F.R. part 265 subpart W.] Then, after performing the required cleaning at least every 90 days, the VSQG drip pad operator should be allowed to handle the hazardous waste according to the less stringent VSQG standards. Once hazardous waste is removed from the drip pad at least every 90 days, the hazardous waste that was accumulated on a drip pad should be regulated no differently than waste accumulated on other units because it does not pose increased or different risks.

Permitting drip-pad operators who qualify to manage hazardous waste under VSQG standards would allow efficient and safe handling of hazardous waste and should be explicitly included in the final rule. Again, the use of a drip pad as a hazardous waste accumulation unit is independent of generator status and should not impact whether a generator is classified as an LQG, SQG, or VSQG. TWC urges EPA to adopt the language proposed above. (0164)

Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter. In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations.  In fact, EPA has previously acknowledged that such a situation may occur where generators accumulating hazardous waste on drip pads are allowed to take advantage of the very small quantity generator (VSQG) standards if their hazardous waste generation falls within VSQG limits. Such an example would be, for example, wood treatment facilities that recycle their wood preserving wastewaters and spent wood preserving solutions under a particular solid waste exclusion (40 CFR 261.4 (a)(9)(iii)). However, allowing hazardous wastes to fall onto the ground is viewed as illegal disposal, and may result in enforcement action if inspectors determine that such disposal threatens human health or the environment. As such, it is prudent for all wood preserving facilities, even if conditionally exempt, to ensure that they are operating their drip pads in an environmentally safe and responsible manner. Therefore, VSQGs, accumulating hazardous wastes on drip pads must comply with 40 CFR subpart W requirements, except 40 CFR 265.445 (c).
Section 4.10 - Deletion of Performance Track Regulations

Comment: Commenters agreed with EPA's proposal to delete the regulations for the obsolete Performance Track regulations from the CFR. (0085, 0178, 0232) 
EPA Response: EPA agrees with the commenters and is finalizing the deletions of these regulations in the final rule. 

Section 4.11 - Biennial Reporting

Clarification of Biennial Reporting Requirements (40 CFR 262.41, 264.75 and 265.75)
The Agency proposed the following revisions to 40 CFR 262.41, 264.75 and 265.75: (1) only LQGs need to submit biennial reports; (2) LQGs must report all of the hazardous waste they generate for the entire reporting year, not just the month(s) the generator was an LQG; (3) LQGs completing a biennial report must report all hazardous wastes they generated in the reporting year, regardless of whether they transferred the waste off site during the reporting year; and (4) a reference to the biennial report form (EPA Form 8700 - 13) at § 262.41 rather than the list of specific data elements in currently at that citation.

Additionally, EPA proposed to modify the title of part 262 subpart D from ``Recordkeeping and Reporting'' to ``Recordkeeping and Reporting Applicable to Small and Large Quantity Generators'' in order to highlight which entities need to comply with this subpart.
With respect to permitted and interim status TSDFs at § 264.75 and § 265.75, EPA proposed to modify the regulations at §§ 264.75 and 265.75 to eliminate the list of specific data elements and to require the completion and submission of all data elements in the biennial report form (EPA Form 8700 - 13).

Comments
Most commenters supported EPA's proposed changes to the Biennial Reporting requirements, either in total or in part (0082, 0085, 0116, 0125, 0159, 0174, 0178, 0182, 0185, 0217, 0232, 0248). However, there were two components of the proposed rule where several commenters either opposed the changes, or had concerns. More specifically, several commenters either opposed (0134, 0152, 0187, 0213, 0224, 0216, 0262), or expressed concerns (0178, 0217, 0214, 0082) about requiring LQGs to complete the biennial report for all hazardous wastes they generate in the reporting year, regardless of whether they transferred the waste off site during the reporting year. 

For example, one commenter (0134) stated changing, ",.....the reporting calendar year will become an administrative nightmare, especially in states that have annual requirements. Many generators obtain shipping data from TSDFs to provide the reports. To try and get a handle on the shipped amounts and the amounts in accumulation areas at the end of the year and then back out the amounts for the following year is an administrative burden without any added protection to human, health and the environment." 

Another commenter (0213) stated, "For many generators, it would be impractical to report the amount of waste as it was being generated. In some situations, it is not immediately known that hazardous waste has been generated and must be confirmed through off-site testing. For other generators, their process for tracking hazardous waste for biennial reporting requirements is based on EPA's current regulations that track the shipping, treating, storing and disposing of hazardous waste  -  not the generation. EPA has not adequately evaluated the relative costs and benefits of this proposed change. If EPA is interested in dramatically shifting the way in which LQGs track and report hazardous waste, EPA must evaluate and address the potential impacts in a subsequent rulemaking addressing this issue." 

One state commenter (0178) also stated that while they agree "that this would result in a fuller and more accurate accounting of the waste generated by LQGs in Connecticut and nationally. However, CT DEEP has one serious concern about the practicality of this proposal. In particular, it may be difficult for generators to determine in a precise way the amounts of waste that were generated at the beginning and end of each reporting year, particularly for wastes that are generated in small amounts at a time, or that are initially stored in satellite accumulation areas, since they typically do not keep the records necessary to produce this information  -  especially by the time that the reports are due, which could be a year or more after the fact." 

Response: EPA is not finalizing the proposed change at § 262.41(a) requiring LQGs to complete the biennial report for all hazardous wastes they generate in the reporting year, regardless of whether they transferred the waste off site during the reporting year, and will instead revert back to the current language found in § 262.41(a).
In reviewing comments, as well as reviewing existing biennial reporting instructions, the Agency realized that it and the states were already obtaining a reliable estimate of hazardous wastes generated by LQGs, although not necessarily in a clear cut, January to December manner. For example, a closer examination of existing biennial reporting instructions revealed that the amount reported included: (1) hazardous waste generated and accumulated on site and subsequently managed on site or shipped off site in the reporting year; or (2) hazardous waste generated and accumulated on site in the reporting year but not managed on site or shipped off site until the following year; or (3) hazardous waste generated and accumulated on site prior to the reporting year but either managed on site or shipped off site in the reporting year. In other words, an estimate of hazardous waste generated by LQGs is already being captured and reported for a 12 month period, but not necessarily only in the reporting year. 
Most importantly, the Agency has concluded that the costs of making the proposed revision would outweigh the benefits, particularly when there would be no noticeable difference in the amount of hazardous waste generated annually. 

The second major concern expressed by commenters (0093, 0134, 0137, 0255, 0263) had to do with referencing the biennial report form (EPA Form 8700 - 13) at § 262.41 rather than listing the specific data elements currently at that citation, and the process involved in making any changes.
As one commenter (0134) stated, "We also must object to modification (4) which would replace the data elements established by rulemaking with a reference to the biennial report form that EPA can change at the last minute without any procedural protections. We have had experience with EPA changing reporting requirements literally at the last minute, and also requiring much more information than expected, creating unfair burdens and costs. What is to prevent EPA from changing the data elements by modifying Form 8700-13 without allowing adequate time for companies to respond, and without a rulemaking process that allows an opportunity for comment and persuasion? The ETC must strongly object to this aspect of the proposal and urge EPA not to override the fairness and procedural protections afforded by rulemaking." 
Similarly, another commenter (0255) stated, "EPA's stated reason for making this change is that the biennial report forms have evolved over time and that the requirements in 262.41 no longer reflect the current reporting requirements. In theory, CRWI does not oppose the idea of changing the requirements in the current version of 262.41 from a list to the requirements in EPA form 8700-13. We understand that requirements change over time but would be concerned if future changes to form 8700-13 were made without soliciting public input on those changes. As long as the Agency provides opportunities for public participation to any future changes to form 8700-13 (or for that matter, any other EPA form), we support the proposed change to 262.41. However, if the Agency does not intend to provide public input to any future changes to this form, we oppose this proposed rule change." 

Response: EPA understands commenter concerns regarding the Agency's process of involving the public in making changes to the Biennial Report forms since the regulatory language will cite to the form and no longer specify the required data to be submitted. However, EPA will provide opportunity for public comment for any changes to the regulations and to the forms. Specifically, the Agency will continue to follow the Administrative Procedures Act (APA) and provide notice and solicit comment in making any changes to the regulations. Moreover, as stated in preamble, commenters may not be aware that any changes to EPA Form 8700-13A/B are subject to the Paperwork Reduction Act (PRA), which requires an amendment to the Information Collection Request (ICR) and approval by the Office of Management and Budget (OMB). Before amending the ICR, EPA publishes a notice in the Federal Register informing the public that the ICR is to be amended, and takes comment on the draft form, which is available in the docket. Moreover, there is a follow-up notice in the Federal Register informing the public when the ICR amendment has been submitted to OMB for approval. In the future, in order to ensure more transparency, the Agency also will post a copy of the draft form along with a discussion of any proposed changes, including the need for such changes, as part of the Federal Register notice. As part of this process, the Agency also will inform stakeholders of this Federal Register notice on the RCRAInfo web page at https://rcrainfo.epa.gov/rcrainfoweb/.
Other Comments
Comment
The proposed Hazardous Waste Generator Improvement rule is changing the language in Section 262.41 for biennial reporting. The proposed change specifies that only Large Quantity Generators (LQGs) must file a BR. This language is misleading and implies that the rule does not ever apply to CESQGs and SQGs. The rule language needs to be made clear and specify that if a CESQG or SQG meets the definition of a RCRA LQG for at least one month of the reporting year, then they must file a BR and include all the waste that was generated during that reporting year. Suggested language change for clarification is: A generator who operates as a large quantity generator (generating more than 1000 kilograms of hazardous waste) for at least one month of the reporting year must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of each even numbered year for all hazardous wastes generated during the previous calendar year. (Commenter 0125)

Response: The Agency believes the final regulatory language will be sufficient to address this commenter's concerns. More specifically, the final regulatory text states, "A generator who is a large quantity generator for at least one month of an odd-numbered year (reporting year)...." will account for those situations where either a CESQG or SQG must complete a biennial report unless other components of the hazardous waste generator regulatory program exempt such reporting, such as when they are episodic generators.

Comment: 
Biennial Reports - SQGs that are episodic LQGs in one month must currently submit biennial reports. This language is maintained in 40 CFR 262.41, but is not referenced in the new 262 Subpart L for episodic generators. (Commenter - 0214)
Response: SQGs that are episodic generators will not be required to complete a biennial report. We discuss this issue more appropriately under subpart L  -  Alternative Standards for Episodic Generation of the preamble to the final rule since the scope of biennial reporting is applicable to LQGs only. 

Comment
Section VIII.L (Page 57969): One State commented that guidance should be consistent with the regulations, not the other way around. Changing the rule to state that only LQGs are required to submit a Biennial Report (BR) would make the rule less stringent in several States. Several States already require LQGs to report all the waste generated, regardless of when it was shipped. The State also commented they do not require one-time generators (short time generators) that generate LQG quantities of waste to submit a BR. It is difficult to determine if they were really LQG's because they often notified as such, to find out they were not. (Commenter - 0217)
Response: States may always be more stringent than federal program requirements, or equally stringent but in a different manner if authorized to do so. Regarding the comment on short-term generators, the Agency has struggled in the past with being able to differentiate short-term generators from episodic generators since the examples we have seen for short-term generators are very similar to those of episodic generators. VSQGs and SQGs that generate quantities of hazardous wastes that result in a higher generator category for a calendar month may have the opportunity to take advantage of the new Subpart L episodic generator regulations. Therefore, such generators have the responsibility to determine what regulatory requirements they must comply with.

Comment
Idaho DEQ agrees that any generator, including a temporary or episodic LQG, that exceeds the 2,200 lb. threshold of generated HW or 2.2 lb. threshold of generated acute HW during any part of an odd-numbered calendar year should be required to file and submit a federal hazardous waste biennial report using EPA form 8700-13. However, Idaho DEQ does not agree that sites should have to report waste generated during a reporting year for the months they are CESQG or SQG. (Commenter - 0189)
Response: The Agency disagrees. Generators who are VSQGs or SQGs for part of the year are also nevertheless LQGs for the other parts of the year, and thus it is important that they submit the biennial report to cover the entire year. These types of generators should not find it difficult to submit this information because they will have maintained hazardous waste manifest records which identify the quantity of hazardous waste generated over a particular time period. Generators also must keep track of how much hazardous waste they generate monthly in order to determine their generator category. If the generator is an SQG or VSQG for eleven months of the year they may be able to take advantage of the new episodic event regulations being finalized at § 262.230. Similarly, almost all states already require this information as part of their biennial reporting requirements, and it has long been included in the BR instructions. 

Comment
Under the current regulations, the biennial reporting obligations apply to (1) large quantity generators that ship hazardous waste offsite to a treatment storage or disposal facility, 40 C.F.R. § 262.41 (a), and (2) generators that treat, store, or dispose of hazardous waste onsite, id. at § 262.41(b). The proposed regulations would impose the biennial reporting obligations on generators that are LQGs for at least one month of the reporting year. Because the current regulations do not address the generation of the waste, but the proposed regulations do, the proposed regulations would expand the biennial reporting requirement to LQGs that have generated waste, but not yet shipped, treated, stored, disposed of, or transferred the hazardous waste. This is a dramatic shift in the way that generators base the requirement to submit a biennial report that is not recognized by EPA's discussion in the Federal Register. 
For many generators, it would be impractical to report the amount of waste as it was being generated. In some situations, it is not immediately known that hazardous waste has been generated and must be confirmed through off-site testing. For other generators, their process for tracking hazardous waste for biennial reporting requirements is based on EPA's current regulations that track the shipping, treating, storing and disposing of hazardous waste  -  not the generation. EPA has not adequately evaluated the relative costs and benefits of this proposed change. If EPA is interested in dramatically shifting the way in which LQGs track and report hazardous waste, EPA must evaluate and address the potential impacts in a subsequent rulemaking addressing this issue. (Commenter - 0213)
Response: EPA is not proceeding with the proposed regulations, and will maintain the current regulations. By maintaining the status quo for what hazardous waste must be reported in the BR, this comment is moot.

Comment 
If generators report the waste generated but not shipped during the calendar year, are they NOT required to report waste generated in the previous calendar year if it was shipped during a reporting year? (Commenter - 0214)
Response: Under the final rule, there is no change in what generators must do in completing a biennial report; i.e., generators will continue to report the hazardous waste they generate and ship of-site to a RCRA permitted TSDF. Therefore, generators will continue to report in the biennial report hazardous waste they generated in a non-reporting year that they shipped off-site in a reporting year. This will counter-balance LQGs that don't have to report hazardous waste they generated in a reporting year but shipped off-site in a non-reporting year. 

Comment
ACA cautions EPA that having to account for waste that is generated during the final month of the year has the potential to be an issue for any facility. For example, if a waste stream was generated on December 15th, the material would not legally have to be shipped from the LQG until March 14th of the following year. The return manifest would not legally have to be received back to the facility for an additional 35 days which could potentially place the manifest with all applicable information back in the generators hands by April 18th. The deadline to submit the facilities Biennial report is March 1st. This requirement has the potential for the facility to not have all of the legally required information for the previous year's waste by the time the report is due. (Commenter - 0262)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo in terms of what hazardous wastes must be reported, this issue is moot. 

Comment 
We support the removal of the list of data elements from section 262.41 and replacing this list with a reference to the reporting form. However, it is important that the regulations not conflict with the guidance contained in the form. There are some remaining conflicts and ambiguities, and changes made from existing regulatory text that may not have been fully intentional. In the proposed text, generators report on wastes generated during the reporting year. Current regulatory text requires that the report cover "generator activities" during the reporting year. In the 2015 version of EPA Form 8700-13A/B, pages 6 and 35, the guidance spells out that these generator activities include management and shipping -- that waste generated and accumulated in 2014 but managed on-site or shipped off-site in 2015 should be included in the 2015 biennial report. The proposed text is not consistent with this requirement. (Commenter - 0082).
Response: There are two components to this comment. The Agency agrees that guidance implementing the Biennial Report regulations should be consistent and will institute procedures to ensure that occurs. Regarding the second statement, the issue is moot since we are not finalizing what we proposed in terms of what has to be reported. 

Comment
We agree with using a reference to the BR forms (EPA form 8700 - 13) at § 262.41 rather than the list of specific data elements currently at that citation. However, it should be noted that authorized states can substitute their own form number(s) for the federal form. Additionally, there should be a reference to the BR Forms and Instructions for which data elements are required or conditionally exempt. For example, the OI form is conditionally required depending on the state. The rule should specify that the report information should be supplied according to the EPA or State instructions. If each data element for BR reporting is not listed in the rule, will US EPA or the states be able to cite violations for information that was not reported but cannot be left blank according to the state or federal data requirements? (Commenter - 0125)
Response: The Agency agrees that authorized states can substitute their own form number(s) for the federal form so long as the required data elements are collected. The Agency also agrees that there should be a reference to the BR Forms and Instructions for which data elements are required or conditionally exempt. The Agency already does that in its biennial report instructions. However, the Agency does not intend to specify in the regulations that report information should be supplied according to the EPA or State instructions. The Agency believes referencing the specific forms in the regulation, and providing instructions on the actual forms as to what is required should be sufficient. Regarding the question, "If each data element for BR reporting is not listed in the rule, will US EPA or the states be able to cite violations for information that was not reported but cannot be left blank according to the state or federal data requirements?" generators will be held responsible, and potentially in violation of the regulation if they fail to provide all of the applicable information identified on each form even if it is not specifically identified in the regulation. 

Comment
In concept, Idaho DEQ would like to agree with the proposal to change the regulatory language for the BR citations from listing specific data elements to instead referring to the BR form and instructions. While Idaho DEQ understands and agrees this type of referencing is easier for EPA and subjects them to potentially less rulemaking in the future to accommodate BR changes, the fact that EPA wants to require temporary or episodic LQGs during an odd-numbered reporting year to report all other waste generated during the year (regardless of the level or amount generated) is problematic for Idaho DEQ. (Commenter - 0189)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo as to what hazardous wastes has to be reported in the biennial report, this issue is moot.

Comment
One State commented, in the BR instructions, EPA states that the OI (transporter information) is optional, which currently is not in compliance with §262.41(a).4. Referring to the form by number and not specifying data elements means transporters are no longer reported. Several States use the transporter information for targeting inspections and outreach. (Commenter - 0217)
Response: States can always be more stringent than the federal program and require what is considered optional information by the EPA. 

Comment
In the proposed text of 262.41(a), the first mention of "reporting year" occurs before it is defined as the calendar year previous to the even numbered year when the report is due. This could be written more clearly for someone new to the regulations. Suggestion is: replace "A generator who is a large quantity generator for at least one month of the reporting year must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of each even numbered year for all hazardous wastes generated during the previous calendar year." with "A generator who is a large quantity generator for at least one month of an odd numbered year (reporting year) must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of the following even numbered year for all hazardous wastes generated during the reporting year." This also lines up with the implication that applicability of the requirement to submit a biennial report should be re-determined for every generator (based on monthly generator status) at the end of every odd numbered year by changing "each even numbered year" to "the following even numbered year". (Commenter - 0082)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo as to what hazardous wastes has to be reported in the biennial report, this comment is moot.

Comment
Both current and proposed text state that "generators who treat, store, or dispose of hazardous waste on site in accordance with the provisions of 40 CFR parts 264, 265, 266, 267, and 270" must also submit a report. Which generators this refers to is potentially confusing, as most generators store and some may treat in compliance with portions of part 265 referenced in section 262.34. The 2015 version of EPA Form 8700-13A/B clarifies at the top of page 4 that this clause intends to cover generators who "treat, store, or dispose of RCRA hazardous waste on-site in waste management units subject to a RCRA operating permit." Can the regulatory text be changed to this clearer language, or is this guidance missing some other generator population intended to be included? (Commenter - 0082)
Response: The Agency believes the regulatory text being finalized today is clear as to what facilities or generators this provision is applicable to. There is no generator population intended to be included. However, TSDFs that generate hazardous waste in the process of treating or disposing of hazardous wastes it has received become generators and also are subject to the provisions of 40 CFR 262.4. 

Comment
USWAG strongly encourages EPA to clarify that a waste generated at the end of a reporting year, but which is not determined to be hazardous until the beginning of the next year, be reported in the year that it was generated, despite not being determined to be hazardous or being sent to a TSD facility in that year. (Commenter - 0093)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo as to what hazardous wastes has to be reported in the biennial report, this comment is moot.

Comment 
We agree that the BR provisions in parts 264 and 265 should be modified to specifically include facilities receiving HW without a permit such as reclaimers that do not store and those operating under a variance. This would give us a better picture of hazardous waste management since these facilities have been exempt from reporting. BR filers list them as receivers on GM Forms but that gives an incomplete picture of what is occurring at the receiving end. Authorized States would be required to modify their programs when EPA promulgates this more stringent provision of the rule. (Commenter - 0125)
Response: The Agency agrees with this comment that authorized states must modify their programs when EPA promulgates this more stringent provision of the rule.

Comment
Currently, under 262.41(b) exports of hazardous waste to foreign countries are not required to be reported on the Biennial Report form. This is mentioned in the proposed rule. A separate Annual Report is required for hazardous waste exporters and is sent to OECA. However, state requirements may be more stringent and the reporting of exports on the BR should still be allowed. As outlined in the BR Forms and Instructions, states may impose reporting requirements above and beyond the federal requirements. This information is critical to state programs and unless this information is captured through BR, the states without manifest tracking have no way of obtaining this information. State-level generation and shipment data would be incomplete. (Commenter - 0125)
Response: EPA does not disagree with this comment. States may be more stringent than the federal RCRA program. EPA agrees that a state regulation can be more stringent, or broader in scope, than a federal regulation. In this case, a state regulation that would require a hazardous waste exporter to submit a biennial report to the state would be an example of a broader in scope, rather than a more stringent regulation. Thus, a state may require a biennial report to the state in addition to the annual report required to EPA under the federal regulations. However, the state cannot substitute the biennial report for the annual report since a state cannot conflict with, or administer, federal regulations regarding hazardous waste exports that EPA promulgates and administers as a result of the federal government's special role in matters of foreign policy.

Comment
Even if the state has access to manifest data, the manifest doesn't collect the same set of data elements as the BR. Collecting the data on BR forms is preferable because all the information is stored in the same database with the same data elements. The manifest doesn't provide several items required on the BR such as Source Code, Form Code, and waste density if volumetric. Also, the OECD handling method codes that will be tracked in OECA's WIETS database are not the same as the BR codes. These items are important to data analysis and program planning efforts on hazardous waste generation and management at the state level. The states are not allowed access to the foreign shipment data tracked by OECA.

An example of why this information is critical to collect and report as part of BR is that a LQG may ship all its HW to Canada and none in the US. If this was not reportable on the BR then this facility would not be on the inspection baseline and the data would not be available to compare them with other generators. US EPA bases state inspection commitments on the list of BR LQGs. (Commenter - 0125)
Response: The Agency is not able to assist states in addressing this issue without promulgating a new rule. 

Comment
We would like to have language added to the rule stating that if a LQG downgrades its generator status and doesn't need to file a BR as they did in the previous cycle, then they should complete and submit a RCRA Subtitle C Site Identification Form to notify of the change in their current regulated waste activities (0125)
Response: The Agency is not able to assist states in addressing this issue without promulgating a new rule. 
Comment
Idaho DEQ agrees with the proposal that if an LQG receives off-site waste from a CESQG under the same ownership, that waste should be reported by the LQG on their biennial report. However, the waste should be identified separately from the LQG's own generated HW as same-ownership waste in some way. Perhaps a new source code can be created allowing the LQG to report the generated amount on the GM as 0 (since they did not actually generate it). They would have to include the shipped amount since this should equal the amount received from the CESQG and would identify how much the CESQG generated. (Commenter - 0189)
Response: The commenter raises a good point that will be addressed when EPA implements the rule and issues new BR instructions. 

Section 4.11.1 - Biennial reporting is just for LQGs

All comments organized to this section of the comment outline are responded to under section 4.11. 

Section 4.11.2 - Reporting all hazardous waste for the year (not just LQG months)
All comments organized to this section of the comment outline are responded to under section 4.11.
Section 4.11.3 - Reporting all hazardous waste generated (not just shipped off site)
 All comments organized to this section of the comment outline are responded to under section 4.11.

Section 4.11.4 - Revise regulations to refer to BR instructions
All comments organized to this section of the comment outline are responded to under section 4.11.

Section 4.11.5 - Other
All comments organized to this section of the comment outline are responded to under section 4.11. 

Section 4.12 - Prohibition against landfilling liquids

General Support
Comment: EPA heard from 9 commenters that generally support the addition of language at 40 CFR 262.14 and 262.35 that re-iterates the provision that prohibits the disposal liquids in landfills (Commenter Nos. 85, 174, 178, 185, 206, 214, 232, 248, and 253). 
Response: EPA thanks the commenters for their support. EPA believes that the liquids restrictions are necessary because the disposal of liquids into landfills can be a significant source of leachate generation. By restricting the introduction of liquids into landfills, the leachate generation potential of landfills would be minimized and reduce the risk of liner failure and subsequent contamination of the ground water. EPA believes it is important to emphasize that the responsibility for preventing the introduction of liquids in landfills resides not only with municipal and hazardous waste haulers and landfill operators, but also with hazardous waste generators. By reiterating this prohibition directly in the generator regulations, more generators will become aware of their responsibility to ensure that their liquids hazardous waste is either not disposed in landfills or properly treated prior to disposal in a landfill. Furthermore, EPA hopes that this provision will encourage better communication between generators, waste haulers, and TSDFs to ensure the liquids hazardous waste is properly disposed. 

General Concerns
Comment: EPA received 6 comment that expressed general concern and questioned whether reiterating this provision in 262.14 and 262.35 is needed (Commenter Nos. 77, 93, 134, 168, 189, and 214). Some commenters felt that this provision was already stated in the regulations at 40 CFR 264/264 and that disposal facilities, rather than the generator, are in the best position to ensure that liquids are not disposed of in landfills. There is concern that this provision will do nothing to actually ensure that liquids are not disposed of in landfills and may deter a generator from shipping their waste to a TSDF.
Response: EPA understands why commenters question the necessity of this provision since it already stated elsewhere in the regulations and this provision does not change any requirements that the generator must comply with. However, EPA believes it is important to emphasize that the responsibility for complying with this provision resides not only with municipal and hazardous waste haulers and landfill operators, but also with hazardous waste generators. Some undesirable situations have occurred because generators were not aware of this provisions simply due to the fact that this provisions was not found in the generator regulations. By including this prohibition in the generator regulations, EPA believes that generators will be more aware of the liquids in landfill prohibition and EPA believes that this provision will help facilitate better communication between generators, waste haulers, and TSDFs. This provision will help ensure compliant disposal of liquid hazardous waste in landfills. Furthermore, considering that there are no new or changing requirements, there should be no additional burdens on generators regarding their shipments of liquid hazardous waste.

Comment: Five commenters have expressed concern that current practices between generators and TSDFs would be altered and restrictive, making generators more reluctant to ship their liquid hazardous waste to a landfill (Commenter Nos. 77, 93, 134, 159, and 214). Some generators setup agreements with a TSDF such that all of their liquid waste is stabilized by the disposal facility. There are also current practices established by the generator and TSDF that remove any free liquid that is produced during transportation. With this provision, some generators believe that they now are required to stabilize all their liquid waste prior to shipment and ensure that no free liquids develop during the hauling process or during the placement of the waste in the landfill. These commenters state that generators have no control of the waste after it leaves their facility and, in order for generators to comply, they must put their employees at risk, during transportation and disposal of the waste, to ensure that no free liquids seep into hazardous waste during transport. 
Response: It is not EPA's intent to alter or restrict current practices employed by generators and TSDFs. 
EPA simply wanted to make generators more aware of this prohibition. Because the statutory prohibition was codified in the TSDF regulations and not in the generator regulations, some generators may have been unaware of the prohibition against the disposal of liquids in landfills. Current practices that were used prior to this rule continue to be applicable after this rule is finalized, as long as hazardous waste liquids are not disposed of in landfills. The generator may treat their liquid waste themselves or the generator may set up an agreement such that a TSDF treats the liquid waste prior to disposal in a landfill. There may be many different variations of these agreements between generators and TSDFs but, if the liquid waste is properly treated before disposal in a landfill, then the previously established agreements would not need to be altered. 

Comment: EPA heard from three commenters suggesting that it would be helpful to clarify in this provision that the sorbents used to eliminate free liquids must be non-biodegradable if the generator is disposing their stabilized waste in a landfill (Commenter Nos. 159, 214, and 217). If it is EPA's intent to get generators be more aware of the prohibition of liquids in landfills then generators should also be aware of regulations on how to comply with the prohibition, such as the requirements stated in 264.314 and 265.314.
Response: EPA agreed with the commenters' suggestion and, in the final rule, the Agency added references to § 264.314 and § 265.314 in the SQG and LQG regulation (§ 262.35). Liquid hazardous waste from an LQG or SQG that is disposed in a hazardous waste landfill must meet the additional requirements in § 264.314 and § 265.314, notably the requirement that the sorbents be nonbiodegradable. In instances where biodegradable sorbents are used, such as prior to incineration or energy recovery, then SQGs and LQGs must ensure that these wastes are not disposed in a hazardous waste landfill. 
VSQGs are not required to follow the additional criteria in § 264.314 and § 265.314 if they are disposing their waste in a MSWLF, but they must still ensure that their waste contains no free liquids prior to disposal in any landfill.

Comment: Four commenters stated that the proposed language, "whether or not sorbents have been added," may cause confusion and recommended that this language be clarified or revised (Commenter Nos. 159, 168, 214, and 268). It is suggested that this language could be interpreted such that stabilized free liquids (i.e. use of sorbents) are prohibited from disposal in a landfill. EPA stated in the proposal that this prohibition of liquids in landfills is a reiteration of current requirements but, with the above interpretation of the proposed language, some generators may view this is a new requirement.

Response: EPA disagrees with the commenter's suggestion to revise the proposed regulatory language for generators. The proposed regulatory language prohibiting liquids in landfills is appropriate because the language was adopted directly from the statute and the same language is found in other parts of the regulations which applies to generators. It would be confusing to have slightly varying versions of this prohibition for each generator category and TSDFs.
EPA would like to clarify that the language "whether or not sorbents have been added," does not restrict the use of sorbents as treatment prior to disposing in a landfill. All generators, regardless of their hazardous waste generation category, may continue to operate as they have before this rule as long as their liquid hazardous waste is disposed of properly. If sorbents have been used but free liquids are still present, then the waste is prohibited from disposal in all landfills. However, if there are no free liquids as defined in § 260.10 after the use of sorbents, then the waste may be disposed in the correct corresponding landfill.

Section 4.13 - CESQG regulations-general
 
Comment: The introductory paragraph of 262.14(a) is confusing; it should be re-written to be similar to 262.16 and 262.17. The other requirements listed in 262.14 are conditions of exemption. The bottom line is: the re-organization would bring a much higher degree of clarity for VSQGs if VSQG requirements were organized the same way as SQG and LQG requirements. (Commenter 0082)
EPA Response: We agree with the commenter and to improve clarity we have re-worded the introductory paragraph in 262.14(a) to be more similar to those in 262.16 and 262.17. 
Comment: TDEC also recommends that EPA consider establishing an accumulation time limit that it determines reasonable for CESQGs in addition to the current weight limit. TDEC's DSWM repeatedly observes CESQGs with such low generation rates that it would be decades before they approach the 1,000 kilogram limit currently established. Passage of such a long amount of time and subsequent changes in on-site conditions could potentially lead to the mismanagement of hazardous waste accumulated at CESQGs. Establishing an accumulation time limit would also be beneficial to the regulated community, reducing the risk for potential non-compliance (Commenter 0116).
EPA Response: EPA did not propose or take comment on creating an accumulation time limit for VSQGs. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment: MDU agrees with USWAG that CESQGs should be allowed to treat hazardous wastes on sites in the same manner as authorized for small quantity generators (SQGs) and LQGs. MDU has a knowledgeable environmental staff that directs company personnel on how to properly manage waste when encountered during operation and maintenance. In addition, MDU periodically hires consultants to assist with hazardous and solid waste determinations, management, and disposal (Commenter 0149).


EPA Response: A VSQG is allowed to treat its hazardous waste on-site provided that the VSQG is one of the types of facilities identified in 262.14(a)(5)(i)-(viii). The justification for allowing SQGs and LQGs to treat hazardous waste in accumulation tanks and containers without a permit is provided in the preamble to the March 24, 1986 Federal Register (51 FR 10168). It explains that treatment is allowed because SQGs and LQGs are subject to the same technical standards as TSDFs for tanks and containers. This is not the case for VSQGs who are not subject to any of the technical standards for TSDFs for tanks and containers. 
Comment:
No Additional Expansion to CESQGs/VSQGs

Walmart does not support expanding any of the specific requirements to CESQGs/VSQGs, wherever noted by the agency in the preamble as requesting comments (Commenter 0233).
EPA Response: The Agency has not expanded the requirements for VSQGs at this time.

Comment: In summary, I urge USEPA to keep the RCRA generator regulations unchanged except for correction of specific typographical errors, omissions, inconsistencies, obsolete references, or redundancies; to retain a less burdensome form of the new episodic generation regulations for CESQGs and SQGs; to retain the specific exclusion of CESQGs from RCRA Part B permitting; and to retain the now-explicit allowance for CESQGs to convey hazardous waste to a sister facility that is an LQG (Commenter 0263).
EPA Response: The Agency appreciates the comment; however, in response to other comments in support of various amendments, we have made additional changes beyond just those identified by this commenter.

Comment:
D. EPA must promulgate minimum requirements necessary to ensure all CESQG hazardous waste is safely managed "cradle to grave."

Even if the unlawfulness of the CESQG exemptions could be overlooked, EPA must at least promulgate conditions necessary to ensure CESQG hazardous wastes are managed in a manner that is fully protective of human health and the environment when they are transferred to, treated, stored, or disposed of at a non-hazardous waste site. Without additional conditions, EPA simply cannot assure that CESQGs are not evading mandatory requirements for SQGs and LQGs (Commenter 0264).
EPA Response: EPA did not propose or take comment on creating additional conditions for VSQGs. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment: There is simply no excuse for not requiring all CESQGs to obtain an EPA ID number, and to notify and keep records of their hazardous waste activities (including waste determinations). These are minimum requirements that are essential for making progress in addressing the major gaps and lack of compliance in the existing CESQG program, and correcting the disturbing problem that "there are many more" than the estimated hundreds of thousands of CESQGs facilities nationwide that are "unaware of their obligations under the RCRA hazardous waste regulations and the need to conduct correct hazardous waste determinations (Commenter 0264).
EPA Response EPA did not propose or take comment on requiring VSQGs to obtain an EPA ID number or keep records of their hazardous waste activities. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment: Given the complete lack of information about active CESQGs, EPA must also work with the states to ensure that all potential generators of hazardous wastes are identified and aware of the generator regulations and the attendant obligations (Commenter 0264).
EPA Response: Some states already regulate VSQGs beyond the federal program. So although EPA's information about active VSQGs is limited, it has been supplemented by the states that regulate them. Further, our observation has been that the states that regulate VSQGs tend to have strong outreach programs to ensure compliance.
Comment: Consistent with the discussion above, transfers of CESQG wastes to other sites should also be subject to full Subtitle C hazardous waste transportation requirements, including use of the Uniform Hazardous Waste Manifest tracking system. As EPA knows, the manifest requirement is critical for ensuring cradle to grave regulation, accountability, and safe delivery of the hazardous wastes to the recipient. Again, EPA does not explain the basis of its authority to exempt the transportation of CESQG hazardous wastes, or even how its provisions allowing CESQG wastes to be sent to non-hazardous waste sites adequately protect transporters and emergency responders against harm that may occur in an accident (e.g., fire, explosion, or spill). For the proposed allowance to send CESQG waste to an LQG under the control of the same person, EPA seeks to exempt CESQGs from compliance with requirements to ship using a hazardous waste manifest, stating that "DOT shipping requirements do still apply." However, EPA fails to explain how those DOT shipping requirements would provide information and allow for oversight in a manner that comparable to the manifest requirement (Commenter 0264). 
EPA Response: EPA finds that Earthjustice's argument has no merit. EPA is not reopening the CESQG exemption (now called the VSQG exemption) itself. Their argument that the CESQG exemption is unlawful is moot since the CESQG exemption has existed for decades, going back to 1980, and was essentially recognized and accepted by Congress when they included a SQG provision in the Hazardous and Solid Waste Amendments of 1984.
EPA did not propose or take comment on requiring VSQGs to manifest their hazardous waste. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment:
COMMENT 'F' (related to buildings on a university campus each potentially being a CESQG):
P 57930 (3rd col) suggests it is permissible for a university's engineering, medical, and science laboratory buildings to each be a separate site even when located on one campus. ("...with each laboratory building possibly qualifying as a CESQG." [emphasis added]) Unless those buildings are separated by public rights-of-way such as city streets they could only be considered as a single 260.10-defined "Individual Generation Site" and thus hazardous wastes from all those buildings, collectively, would be counted to establish whether the site is a CESQG. (All other hazardous wastes generated on that site must also be counted.) (Commenter 0270)
EPA Response: The Agency agrees with the commenter and only meant to say that, in some cases, different buildings on a single campus may be assigned separate ID numbers; hence the use of the word "possibly." 

Section 4.14 - Extending labs accumulation time limit

Subpart K -Extending Time Limit for Accumulation Under Alternative Requirements for Laboratories Owned by Eligible Academic Facilities 

General Support for Extending the Accumulation Time Limit Under Subpart K
Comment: EPA heard from 23 commenters that generally support extending the accumulation time limit from 6 months to 12 months for laboratories owned by eligible academic entities (Commenter Nos. 91, 99, 101, 110, 135, 136, 139, 154, 172, 182, 185, 206, 208, 212, 217, 221, 226, 230, 231, 248, 256, 258, and 282). Commenters stated that many colleges or universities have found that the 6 month accumulation time limit to be too expensive and burdensome because their laboratories produce only a small quantity of waste. As a result, many colleges and university have not opted into subpart K. These commenters felt that extending the time limit from 6 months to 12 months to remove unwanted chemicals from laboratories would not only reduce their burden but encourage more eligible academic entities to opt into subpart K. 
Response: An eligible academic entity has no time limit for accumulation when operating under the SAA regulations. Therefore, for smaller eligible academic entities that do not accumulate 55 gallons in a laboratory, a six-month accumulation time limit can mean a shorter, more stringent, accumulation time than they have under the satellite accumulation area regulations. EPA agrees with the commenters that this shorter accumulation time is a disincentive for opting into the alternative standards in subpart K. The Agency, therefore, increased the accumulation time limit in an eligible academic entity's laboratory to 12 months.

General Concerns of Extending the Accumulation Time Limit Under Subpart K
Comment: EPA heard from 2 commenters that expressed concern that extending the accumulation time limit another 6 months would be an increased risk for the college or university (Commenter Nos. 82, and 217). During scheduled breaks there will be a reduction in the presence of staff in the labs and there may be unknown wastes left in laboratories at the end of a semester.
Response: EPA disagrees that there will be an increased risk because the volume limits are still in place, i.e., 55 gallons of unwanted material or 1 quart (liquid) or 1 kg (solid) of acutely hazardous unwanted material. Furthermore, if the laboratory waste is properly managed according to subpart K, such as proper container management, labeling, and training, then changes in the number of personnel should not significantly increase the risk over a 12 month accumulation period. 


Section 5 - Marking and labeling throughout the proposed rule

Comment: The EPA is proposing enhanced labeling and/or marking on hazardous waste containers and tanks. I recommend that if a container is labeled to match DOT OR HAZCOM requirements, it is considered acceptable for the EPA's proposed enhanced labeling. (0089)
EPA Response: The Agency agrees with the above comment. A SQG or LQG may label its containers with the applicable hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic) to match DOT or HAZCOM requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding). This is one method. The Agency is also providing flexibility to generators in that they also may use a hazard statement or pictogram consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704).
Comment: Extra labeling on tanks, drip pads, and containers will also add a new burden to the generator of the waste. The cost of labeling media, printing supplies and software, and the new work process development, and labor time, to insure marking and labeling per these new requirements is an additional cost with little to no added value. (0131)

EPA Response: The Agency disagrees with the above comments.The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 
Similarly, in response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 

Comment: If the EPA does decide that there is sufficient reason to burden the generators with new marking and labeling requirements Dow would like EPA to consider these items:

1) Rules should include an exemption for wastes generated in labs covered under the OSHA Lab Standard.

2) There should be clarification stating containers smaller than 0.1 m3 are exempt from these additional labeling requirements.

3) The marking and labeling requirement should take effect only when the waste is being transported out of the control of the generator. (0131)
EPA Response: In response to Question 1 above, SQGs and LQGs must mark or label its containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 
It is a misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.
If a hazardous waste is in a container that already has the appropriate marking and labeling (e.g., the hazardous waste is an unused commercial chemical product that is in its original container with an intact label), the existing marking and labeling would be sufficient. The generator would not need to duplicate the marking and labeling, assuming the original label contains the information necessary to comply with the marking and labeling requirements. 
Regarding Questions 2 and 3, there is no marking and labeling exemption for containers smaller than 0.1 m3 and generators must mark or label their containers with the appropriate hazard communication label or placard as soon as they have determined the waste is a hazardous waste and why it is a hazardous waste (i.e., identified the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic), not when the waste is being transported out of the control of the generator.
However, in keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.

Comment: The proposed additional labelling requirements duplicate exist regulatory programs: EPA's proposed additional labeling requirements add an unnecessary burden on the regulated community that is already required to label hazardous chemicals per Occupational Safety and Health Administration (OSHA) requirements. (0139)
EPA Response: The Agency's marking and labeling requirements do not duplicate existing regulatory programs as much as reinforce the need for better risk communication while hazardous wastes are being accumulated on-site. There is really only three minor tasks generators have to perform: (1) mark or label their containers with the words "Hazardous Waste"; (2) mark or label its containers with the applicable hazards of the contents, such as with a hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding) while the waste is accumulated on-site; and (3) identify and eventually mark the container with the applicable RCRA hazardous waste codes prior to container being sent off-site. EPA believes it is important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know as much as possible about the potential hazards of the contents in containers being accumulated, transported, and managed, whether on site and/or off site, so that the hazardous wastes are managed in an environmentally sound manner. 
Please note that generators must already mark their containers with a hazard communication consistent with the DOT requirements prior to sending their containers off-site to a RCRA permitted TSDF or other facility for recycling or for waste management. Generators have other marking and labeling options for identifying the container hazards when the hazardous wastes is accumulated on-site, such as a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704), but we first reference the DOT requirements because the generator will ultimately have to satisfy those requirements anyway.
Comment: UofL suggests EPA drop the proposed additional labelling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. In lieu of dropping the proposed additional labelling requirements, UofL requests that EPA exempt containers smaller than 55 gallons from the proposed additional labelling requirement. This exemption would reduce the burden on research facilities like UofL, but allow emergency response personnel an added layer of information in cases where the containers are large enough to pose a serious hazard. (0139)
EPA Response: EPA disagrees with this commenter, and continues to believe that this requirement is appropriate. Moreover, EPA encourages college and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: SOCMA is glad to see EPA say that its proposals for enhanced labeling of hazardous waste containers and tanks could be satisfied by compliance with DOT or OSHA marking requirements. [Footnote 29: Id. at 57931, 57949, 57965, 57974, 57978, 57980.]. Both of these programs have been around for decades and their effectiveness is well understood. It is vastly more efficient and simpler to allow facilities to meet these RCRA requirements by means of DOT and OSHA regulations directed toward the same hazards when the facilities will have to comply with those other requirements in any event.

We are concerned, however, by the preamble's implication that these standards may not be adequate. In particular, we are not aware of any circumstances where the DOT shipping name would be inadequate to identify the contents of a container. [Footnote 30: Id. at 57931, 57949.] (0192)
EPA Response: In response to comments, we have simplified the proposed marking and labeling for containers in SAAs and CAAs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. Therefore, there should not be any circumstances where the DOT shipping name would be inadequate to identify the contents of a container. 
Comment: Additionally, we understand and appreciate the logic of placing the labeling requirements at the point of generation, especially in a system where waste status is determined outside of a central accumulation area, but the lack of guidance is very concerning. Yes, a container must be labeled "hazardous waste", but what system is used to communicate specific hazards? There is no standard offered. What one individual prefers cannot work in all instances. Additionally, the regulatory inspector must be able to agree that the chosen method is a recognized standard in communication. Many containers, particularly those found in laboratory work, are small enough to be exempt from other regulatory burdens (e.g. D.O.T. labeling); additional labeling requirements will not aid individual safety as suggested in the new standard. (0202)
EPA Response: The Agency disagrees with the above comment that we have not provided a standard or guidance to communicate specific hazards. We direct the commenter to our response to Commenter 0089 where we identify options for generators to mark or label their containers and tanks with the applicable hazard associated with the contents.
Comment: Suggestion to Address Concerns in Comment #4: Purdue suggests EPA drop the proposed additional labelling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. In lieu of dropping the proposed additional labelling requirements, Purdue requests that EPA exempt containers smaller than 55 gallons from the proposed additional labelling requirement. This would reduce the burden on research facilities like Purdue, but allow emergency response personnel an added layer of information in cases where the containers are large enough to pose a serious hazard. (0208)
EPA Response: The Agency disagrees with the above comments and directs the commenter to our response for Commenter 0139. 
Comment: #4a. The proposed additional labelling requirements duplicate exist regulatory programs: EPA's proposed additional labeling requirements add an unnecessary burden on the regulated community that is already required to label hazardous chemicals per Occupational Safety and Health Administration (OSHA) requirements. (0208)
EPA Response: The Agency disagrees with the above comments and directs the commenter to our response for Commenter 0139.

Comment: Comment #5: UVM suggests EPA drop the proposed additional labeling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. Alternatively, EPA could apply the logic developed in 262.206. (0221)
EPA Response: The Agency disagrees with the above comments and directs the commenter to our response for Commenter 0139.

Comment: TCCI does not understand the justification for a substantial expansion of labeling requirements for the simple accumulation of hazardous waste without a permit. EPA does not cite instances where the existing labeling is inadequate but simply states that it is "important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know as much as possible about the potential hazardous of the contents in containers being accumulated, transported, and managed, whether on-site and/or offsite, so that the hazardous wastes are managed in an environmentally sound manner." (80 FR 57949).

TCCI does not believe that identification of the contents adds anything to the safe management of the waste over and above the current marking of "Hazardous Waste". TCCI reminds EPA that safety labeling on containers and other such units is regulated under the prevue of OSHA. In fact, in the summer of 2016 substantial new labeling requirements will be applicable in the United States under the new Global Harmonization System (GHS). At a minimum, EPA should not get involved in new labeling requirements until the regulated community has had an opportunity to understand and implement systems to comply with the new GHS requirements.

TCCI asks EPA to consider that with its new enforcement directives as discussed previously, even the most minor labeling deviations can result in substantial enforcement penalties. RCRA has operated for 30 years without a requirement for this information on containers and EPA has not indicated a "need" rather than a "nice-to-have" in the preamble for these proposed expanded labeling requirements for containers in accumulation. At a minimum, TCCI strongly urges EPA to suspend this proposal until business has had an opportunity to implement the new GHS labeling requirements. Business analysts suggest a difficult business environment for 2016. With comprehensive labeling requirements becoming applicable in the summer of 2016, businesses will have more on their plate than many can manage in the near term. To require such labeling for hazardous waste in the next 12 to 18 months is unjustified and excessive particularly in light of the expanded enforcement consequences. EPA has not addressed the additional burden such labeling would entail for LQGs, SQGs, CESQGs, and satellite areas. Finally, a requirement to include RCRA codes on containers in accumulation also adds nothing to the proper management of waste. For waste to be shipped offsite, hazardous waste manifests include RCRA codes, DOT shipping names and land disposal restriction information. In such a competitive environment, duplicate efforts that add no tangible value are intolerable.

TCCI strongly urges EPA to reconsider the new labeling requirements for hazardous waste generators. (0225)
EPA Response: In response to comments, we have simplified the proposed marking and labeling for containers in SAAs and CAAs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. Therefore, there should not be any circumstances where the DOT shipping name would be inadequate to identify the contents of a container. 
Similarly, as finalized, generators will have options as to how to identify the contents of the container's hazards, including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).


Comment: 80 FR 57949, column 1 (VIII., F., 1.-3.)
Modifications to Management of Containers, Tanks, Drip Pads, and Containment Buildings
The MPCA supports the proposed requirements for labeling of hazardous waste containers, tanks, drip pads, and containment buildings for the reasons discussed by EPA at 80 FR 57949-57952 and in the MPCA's prior comment above regarding CESQG/VSQG waste to be shipped to an LQG (VII., C., 3.). (0232)
EPA Response: The Agency appreciates the above comments.
Comment: Recommendation: The LGAC recommends that multi-lingual literature and clear, concise "plain-English" communication materials should be provided especially for materials and labeling of waste. (0289)
EPA Response: The Agency agrees with the above comments and will make every effort to develop multi-lingual literature and clear, concise "plain-English" communication materials regarding the marking and labeling of wastes.

Section 5.1 - Marking and labeling containers

Comment: The proposed changes to the hazardous waste container labeling requirements seem vague. Compliant labeling is not clearly stated and may be subject to interpretation as to whether or not there is a clear supportable violation. (0074)

EPA Response: The Agency disagrees with the above comment. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 
Similarly, in response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 

Comment: We believe that these new labeling requirement place an undue burden on the generator. Typically, for SQGs at Colleges and Universities, almost all hazardous waste is collected in small containers and is lab packed by the waste contractor. It is the waste contractor who places the appropriate labels and markings on the lab packed waste. The contractor does this by knowing what chemical substances are in the container. We agree that these small containers must have the contents of the container listed on the hazardous waste label. But to require more than this prior to lab packing makes no sense as long as the containers are stored safely, as required by the current regulations. (0075)
EPA Response: The Agency disagrees with the above commenter. Students, researchers, etc. need to know whether they have generated a hazardous waste and what the hazards are associated with the container's contents. Surely colleges and universities would agree with this statement and prepare and assist students and researchers for what they might be dealing with in a laboratory setting. Regarding the identification of RCRA waste codes, generators have an obligation to start the process of identifying the applicable RCRA waste codes at the point the hazardous waste is generated, but they do not have to mark their containers with the code(s) until the waste is shipped off-site.
Comment: :: Change 47: 263.12(b): See our comment on 262.15(a)(5). We believe this labeling requirement is unnecessarily burdensome; the only information likely to be of benefit to employees and emergency responders is the appropriate DOT labeling and the legend "hazardous waste". 
o 262.17(a)(5): See our comment on 262.15(a)(5). We believe this requirement is unnecessarily burdensome and impractical. (0078)
EPA Response: The Agency agrees with the above comments. In response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.
Similarly, the Agency has simplified the marking and labeling requirements. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 

Regarding the identification of RCRA waste codes, generators have an obligation to start the process of identifying the applicable RCRA waste codes at the point the hazardous waste is generated, but they do not have to mark their containers with the code(s) until the waste is shipped off-site.
Comment: 23. Regarding modifications to container marking and labeling requirements for SQGs and LQGs - VIII.F.1., pages 57949-57950: Colorado disagrees with both aspects of this proposal as it is an extra burden for generators with no discernible benefit. Many generators already label drums of hazardous waste to indicate to employees exactly what is in the container, requiring this as a regulatory matter seems excessive. Additionally, training programs should provide facility personnel with information regarding the inherent dangers of hazardous wastes generated at a facility. Requiring additional DOT hazard class labels or OSHA Hazardous Communication Standard labels seems unnecessary. The public and/or others are not typically allowed access to accumulation areas, so labels other than "Hazardous Waste" seem unnecessary. Fire departments regularly inspect facilities that are storing hazardous waste and should already be aware of the dangers posed by the hazardous wastes handled by these facilities. (0085)
EPA Response: See response to Commenter 0074. 
Comment: Regulation 262.34
Container Labels
Generators are concerned that some containers used to collect hazardous waste are not large enough to legibly label with all of the information in the proposed rule. This may be especially true if multiple small wastes (i.e. laboratory waste) are disposed of in the same container. (0087)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Comment: The Savannah River Site (SRS) is an LQG. The site procedures on the management of hazardous waste and the labels used for containers of hazardous waste in accumulation areas call for the words "Hazardous Waste," .the EPA waste code(s), the waste category (toxic, corrosive, ignitable, or reactive), and a general description of the waste. These procedures have been in place for over twenty years. The site feels that it is a best management practice for generators to know the nature of the wastes they generate and accumulate, as well as for emergency responders to know the nature of wastes they may encounter. SRNS agrees with the container labeling proposal. (0092)
EPA Response: The Agency appreciates the support of this commenter regarding this topic.
Comment: USWAG generally supports EPA's efforts to revise the marking and labeling of containers used to transport and accumulate hazardous waste, but believes that the Agency should provide only performance-based rules for such labeling and allow generators to determine the type and method of labeling. EPA's insistence on specific labeling requirements (e.g., OSHA or DOT labels) may actually make it more difficult to comply with various requirements and make the task of alerting employees more difficult. We also believe that requiring inclusion of a hazardous waste code on units is redundant with the current hazardous waste manifest and/or shipping paper requirements on which this code must already be present and provided to TSD facilities. 80 Fed. Reg. at 57948.

EPA Response: The Agency has simplified the marking and labeling requirements. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 

Regarding the identification of RCRA waste codes, generators have an obligation to start the process of identifying the applicable RCRA waste codes at the point the hazardous waste is generated, but they do not have to mark their containers with the code(s) until the waste is shipped off-site.
Comment: For generators shipping their waste off-site, containers which constitute the outside packaging are already required to have appropriate DOT markings and labels which include all the above. Little impact is expected if that requirement is met while the material is being held pending shipment. Many if not most generators already do this.
EPA Response: The Agency agrees with this statement.

Comment: o For other than final shipping containers, labeling requirements are already prescribed by other agencies; addition of another layer will inevitably lead to conflicting interpretations. Selection of such labels for mixtures of various virgin and spent materials often requires expertise and analysis beyond the responsibility/capability of most operators.
EPA Response: As finalized, generators will be required to determine if they have generated a hazardous waste at the point of generation, and if a hazardous waste, mark the container with the words "Hazardous Waste", mark or label the container with the appropriate hazard, such as ignitable, reactive, etc. and start the process of identifying the appropriate RCRA waste codes such they can be placed on the container prior to being sent off-site for subsequent treatment. In the case of a waste that contains a mixture of various virgin and spent materials, the operator will have to have an understanding of the various chemicals in the mixture and associated hazardous properties such that they can determine if they have generated a hazardous waste and associated hazards such they can mark the container correctly. As for identifying the applicable waste codes, the operator can start that process by working with the appropriate personnel in the organization with the necessary skills and knowledge that can help the operator determine what the applicable waste codes are. 
o Any additional labeling requirement for virgin material has the potential for obscuring other useful information provided by the supplier. (0097)
EPA Response: The Agency assumes that the labeling requirements for virgin materials are independent of those for hazardous wastes. Therefore, there should not be any conflicts at all.
Comment: Requiring additional labeling from any one of several alternatives (OSHA, NFPA, etc.). Labeling requirements for chemicals are already adequately described by other agencies, adding another layer will inevitably lead to conflicting interpretations. Selection of such labels for mixtures of various virgin and spent materials requires expertise and analysis beyond the responsibility/capability of most operators.
EPA Response: The Agency agrees that the labeling requirements for chemicals, or commercial products, are already described by other agencies. Regarding mixtures of chemicals and spent materials, as finalized, generators will be required to determine if they have generated a hazardous waste at the point of generation, and if a hazardous waste, mark the container with the words "Hazardous Waste", mark or label the container with the appropriate hazard, such as ignitable, reactive, etc. and start the process of identifying the appropriate RCRA waste codes such they can be placed on the container prior to being sent off-site for subsequent treatment. In the case of a waste that contains a mixture of various virgin and spent materials, the operator will have to have an understanding of the various chemicals in the mixture and associated hazardous properties such that they can determine if they have generated a hazardous waste and associated hazards such they can mark the container correctly. As for identifying the applicable waste codes, the operator can start that process by working with the appropriate personnel in the organization with the necessary skills and knowledge that can help the operator determine what the applicable waste codes are. 

Comment: o Any additional labeling requirements for virgin material have the potential for obscuring other useful information provided by the supplier. (0097)
EPA Response: The Agency assumes that the labeling requirements for virgin materials are independent of those for hazardous wastes. Therefore, there should not be any conflicts at all.
Comment: REGFORM opposes the proposal to require multiple markings/labels on SQG and LQG containers.
This is more information than is needed. It is particularly problematic for containers that are so small that the information will not legibly fit. Only the most important information, "Hazardous Waste" should be required.

If US EPA determines that additional markings beyond "Hazardous Waste" are found to be necessary, we request that this be limited to labels that comply with DOT standards for transportation, since transported containers will ultimately require those labels. (0106)
EPA Response: The Agency has limited the marking and labeling requirements that comply with DOT standards for transportation, since transported containers will ultimately require those labels. However other options are available if so desired and identified in the regulations. 
Regarding the identification of RCRA waste codes, generators have an obligation to start the process of identifying the applicable RCRA waste codes at the point the hazardous waste is generated, but they do not have to mark their containers with the code(s) until the waste is shipped off-site.
In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Comment: A. Increased labeling requirements for hazardous waste containers.

EPA proposes to substantially increase labeling requirements for containers, believing that it "will enable persons who may come in contact with it to be aware of the hazardous contents of the container with little or no additional cost to generators." 80 Fed. Reg. at 57,949. However, the proposed requirement adds a layer of burden that duplicates existing procedures already sufficient to describe container hazards. Transportation regulations require the documentation accompanying a shipment to include waste codes and handling instructions, and the current rules require generators to properly manage their wastes, including protecting workers and others from exposure. (0107)


EPA Response: The Agency has simplified the marking and labeling requirements. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 

Regarding the identification of RCRA waste codes, generators have an obligation to start the process of identifying the applicable RCRA waste codes at the point the hazardous waste is generated, but they do not have to mark their containers with the code(s) until the waste is shipped off-site.
Comment: Significant Comment

:: The proposed rule allows SQGs and LQGs flexibility in labeling containers (see Pg. 57949). Generators may use a variety of methods to indicate the contents and their associated hazards. As this approach could introduce confusion or ambiguity during compliance investigations, TCEQ recommends specifying required standardized labeling requirements. (0112)
EPA Response: The Agency believes it is important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know as much as possible about the potential hazards of the contents in containers being accumulated, transported, and managed, whether on site and/or off site, so that the hazardous wastes are managed in an environmentally sound manner. Therefore, EPA believes SQGs and LQGs must indicate the hazards of the contents of the containers while giving them flexibility in how to comply with this new provision.
However, the Agency has simplified the marking and labeling requirements. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 
Similarly, in response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.
Regarding the identification of RCRA waste codes, generators have an obligation to start the process of identifying the applicable RCRA waste codes at the point the hazardous waste is generated, but they do not have to mark their containers with the code(s) until the waste is shipped off-site.
Comment: Labeling: EPA's proposal discusses new generator standards for labeling containers, tanks, drip pads, and containment buildings, designed to clearly identify hazards in accumulation areas and transfer facilities. While TDEC supports the concept of increasing transparency associated with hazards and simplifying hazard labeling through the use of established methods and plain English, it recommends that EPA, if possible, select a single labeling method, rather than allowing generators to select from several established methods. Selecting a single labeling method would standardize labeling of hazardous wastes across the country, creating greater continuity with regard to emergency response, particularly in cases where responders may come from bordering states, and providing regulatory bodies, generators, and other relevant entities operating in multiple states with a single method to recognize, rather than multiple potential methods. TDEC further recommends that EPA provide very explicit instructions to generators as to what will be acceptable to meet any plain English labeling requirements that are finalized. For example, a generator may interpret that any of the following would be acceptable labeling: "used solvent," "organic solvent," or "halogenated organic solvents." TDEC also recommends that EPA specify that labeling should occur at the initial point of generation.

TDEC supports the use of the U.S. Department of Transportation (DOT) hazard class labels and NFPA diamond to address this issue. DOT hazard class labels are already currently required on containers while in transport. As outlined in 49 CFR 172, DOT hazmat labels are required on specific types of packages, such as drums, totes, boxes, that are transported. The transport vehicle itself must be marked with DOT placards to warn of the hazards associated with the hazards of the materials, including hazardous wastes, being carried in a tank car, cargo tank, portable tank, bulk packages, or vehicles or containers containing non-bulk packages. NFP A diamonds are used on the exterior of buildings (including containment buildings) and tanks.. Both of these methods are readily recognized by emergency response personnel. DOT hazard class labels would also provide the hazard protection awareness for both visitors and workers of the dangers associated with a container of hazardous waste. [Footnote 13: In large industrial settings, it is normal to site entry procedures for visitors to attend a safety orientation which can include recognition and use of the NFPA signage, or any other hazardous identification programs.] The NFP A diamond would provide identification of the hazards associated with a storage area. Additionally, contingency plans for generators and training provided for workers to explain this as part of a comprehensive hazardous communication system could easily reflect use of these labeling systems. (0116)
EPA Response: The Agency believes our response to commenter 0112 also addresses TDEC's comments as well. However, the Agency desires to provide flexibility to generators in what type of label it uses while accumulating hazardous waste on-site although we recognize the benefits of using a DOT label since it will also satisfy DOT requirements once the material is sent offsite for subsequent processing.
Comment: Eastman does not oppose the change in labeling requirements proposed for containers and supports the provisions for tanks that allow the description of the contents to be maintained in a log along with the accumulation information. (0128)
EPA Response: The Agency appreciates the support of Eastman regarding this provision.
Comment: Dow Comment: EPA should not modify the marking and labeling requirements. Dow does not believe that the amount of labeling on a container, or being able to identify the hazards of the container, contributes to the sound management of hazardous waste. The requirements already defined in the other segments of the rules ensure proper design, container selection, and waste management are already sufficient to accomplish this goal, especially for containers within control of the generator. The generator already has the information about the waste and the associated hazards readily available. For wastes that remain on-site, OSHA already requires the generator keep readily available hazard information on the materials, including waste materials, in the facility. Having to mark and label each container with this information is duplicating the requirement. (0131)

EPA Response: The Agency disagrees with the above comments. The regulatory changes EPA is finalizing for marking and labeling for waste accumulation units are designed to enhance three critical areas: risk communication, emergency preparedness and prevention, and the accuracy of hazardous waste determinations. Although labeling may appear to be an inconsequential "paperwork" exercise, it is, in fact, vitally important to ensuring that waste is identified and managed properly. Without proper labeling, hazardous waste may be mismanaged as non-hazardous waste, or as the wrong type of hazardous waste, which could cause harm to human health and the environment.
The Agency also directs the commenter to its response to Commenter 0112.
Comment: In addition, Dow is concerned about the potential for these additional container labeling requirements to present a conflict with DOT shipping requirements, particularly as such conflicts are currently prohibited under 49 CFR 172.401.
EPA Response: The marking and labeling requirements finalized in this rule will not conflict with DOT requirements. 
Comment: 3. EPA should not modify the marking and labeling requirements. Dow does not believe that the amount of labeling on a container, or being able to identify the hazards of the container, contributes to the sound management of hazardous waste. The requirements already defined in the other segments of the rules ensure proper design, container selection, and waste management are already sufficient to accomplish this goal, especially for containers within control of the generator.
EPA Response: The Agency disagrees with the above comments. The regulatory changes EPA is finalizing for marking and labeling for waste accumulation units are designed to enhance three critical areas: risk communication, emergency preparedness and prevention, and the accuracy of hazardous waste determinations. Although labeling may appear to be an inconsequential "paperwork" exercise, it is, in fact, vitally important to ensuring that waste is identified and managed properly. Without proper labeling, hazardous waste may be mismanaged as non-hazardous waste, or as the wrong type of hazardous waste, which could cause harm to human health and the environment.
The Agency also directs the commenter to its response for Commenter 0112.
Comment: However, Boeing has similar concerns regarding the container labeling requirements as in Subpart L. (0133)
EPA Response: The Agency directs the commenter to its response for Commenter 0112.

Comment: The proposed additional label information will not fit on small containers used in research. Hazardous waste containers at a research institution like UofL are various sizes; some are very small. The physical dimensions of the small containers makes it difficult, if not impossible, to fit a legible label with all the proposed required language. In reviewing the preamble of the proposed rule, it appears that EPA's goal is to improve the immediate availability of hazard information for emergency responders and for the general public. The hazardous waste containers at UofL are in the control of UofL laboratory faculty, staff, or students at all times so potential public exposure is not a risk. (0139)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as labpacks, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Comment: Some containers are already labelled with manufacturer's information; this should be acceptable. It is common in research labs for expired chemical reagents in their original containers to be placed into satellite accumulation areas for disposal due to the chemicals being out of date or unneeded. These reagents typically already have the manufacturer's label affixed to the container indicating the chemical name and often the hazard as well. However, under the proposed rule the container would also be required to be labeled as hazardous waste, which seems unnecessary since the waste is already in a satellite accumulation area. UofL believes that it would be sufficient to label each container with the chemical name or the words "hazardous waste." Employees are required to receive OSHA Hazard Communication Standard (HCS) training or training under the OSHA Laboratory Standard. For individuals covered under the HCS, Safety Data Sheets (SDS) must be readily accessible and extensive information on the chemical(s) is required to be provided by the manufacturer. For those covered by a Chemical Hygiene Plan training on chemical hazards is required and in most cases the SDS is available. Under these systems employees should be familiar with the hazards of any waste and we believe requiring additional labeling is duplicative. (0139)
EPA Response: The Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 
Comment: 8. F. The labeling requirements proposed for containers is redundant with the labels required by other regulatory agencies.
a. Size of containers will limit the amount of material that can be provided. (0154)
EPA Response: It is a misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.
In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Comment: 11. I3. Same labeling issues as noted in #8. (0154)
EPA Response: The Agency believes the response to commenter 0112 responds to these comments as well. 
Comment: The proposal would require the CESQGs to comply with detailed marking and labeling requirements "in order to communicate the contents of the containers to facility personnel that can then safely manage the hazardous waste in compliance with the LQG regulations." See 80 Fed. Reg. at 57,931. However, these marking and labeling requirements would not apply to CESQG wastes sent directly to one of the facilities enumerated in the CESQG rule (e.g., permitted hazardous waste facilities, solid waste facilities authorized to receive CESQG wastes, or recycling facilities). EPA nowhere explains why the marking and labeling is necessary when the CESQG wastes are sent to an LQG facility, but not when they are sent to one of these other facilities. Moreover, one of the main reasons that a company might want to consolidate CESQG wastes is that the receiving facility would have the knowledge and experience to properly handle the wastes. This is especially true in the retail industry, where a consolidation facility (whether under control of the same company or not) would generally have more resources than individual CESQG stores and more knowledge about the proper management of individual retail items. Accordingly, the consolidation facilities would generally not be dependent on marking and labeling by the originating CESQG facilities.

To the extent that the consolidation facilities thought such marking and labeling was important, they could always require the CESQGs to provide it (either through company policy, if the consolidation facility is under common control, or through contracts, if the consolidation facility is owned/operated by a third party). EPA has simply not provided any convincing rationale for a regulatory marking/labeling requirement. (0168)


EPA Response: The Agency is requiring that a VSQG transferring waste to an LQG under the control of the same person label its containers with (1) the words "Hazardous waste" and (2) an indication of the hazards of the contents of the container (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT 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 (OSHA) Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association (NFPA) code 704). This condition is also consistent with the revisions for labeling and marking of containers found in 40 CFR parts 262, 263, and 268 and discussed in section IX.E.1 above in this preamble. 

Because the LQG must manage the hazardous waste it receives from VSQGs according to the LQG regulations, EPA has determined the same labeling and marking requirements should apply to both its own hazardous waste and hazardous waste received from a VSQG. EPA believes that it is important that employees, transporters, downstream handlers, emergency personnel, EPA, and the states know as much as possible about the potential hazards of the contents in containers that LQGs accumulate, transport, and manage.

Comment: 3. Improved Labeling Content for Accumulated Hazardous Wastes Requires SQGs and LQGs to better define the contents and associated risks of hazardous wastes accumulated in tanks, containers, drip pads, and containment buildings, as well as when hazardous waste is accumulated in satellite accumulation areas.
i. Container Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3)). Current regulation requires that all containers holding hazardous waste be labeled with the words "Hazardous Waste". The new legislation would require generators to also include words to identify the contents of the container and also labeling or marking to indicate the hazards associated with the hazardous waste.
DTSC supports the amendments to 40 CFR 262 regarding container marking and labeling. DTSC supports requiring EPA hazardous waste numbers on containers prior to transporting. (0174)
EPA Response: The Agency appreciates the support of DTSC regarding this provision.
Comment: Veolia supports EPA's proposal to require LQGs and SQGs to mark accumulation and shipping containers with words that identify the contents of the containers and an indication of the hazards of the container's contents. Examples of words that would adequately identify the contents are the names of chemicals (e.g., "acetone"), the type or class of chemical (e.g., "organic solvents"), or the DOT shipping name. We recommend that EPA make clear in the final rule that generators may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge"). A common name often distinguishes materials by describing the physical state (e.g., "process line floor sweepings"), process location (e.g., "line 3 paint solids"), or generator-specific nomenclature (e.g., trade names). A generator should have broad discretion to use words that are appropriate for its facility and employees. (0181)
EPA Response: The Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 
Comment: 21. Pages 57949 - 57950, Section VIII.F.: Utah agrees with the Agency's proposal to require an SQG and an LQG to mark and label their containers as proposed. 
33. Page 57965, Section VIII: Utah agrees with the proposals in subsections 3 and 4. 
9. We also agree that a CESQG (VSQG) should label and mark shipping containers as proposed for an SQG and an LQG for emergency/safety concerns. (0185)
EPA Response: The Agency appreciates the support of this commenter regarding this provision. 
Comment: IME does not oppose the proposed enhanced labeling requirements although the requirements do impose an additional burden on generators. That said, if additional requirements would improve hazard identification, we support giving generators options to accomplish this strengthened communication. (0188)
EPA Response: The Agency appreciates the support of this commenter regarding this provision. 
Comment: Again, while the additional labeling requirements will increase the regulatory burden of generators, we support, conceptually, regulatory requirements that are designed to accurately communicate hazards and ensure worker and emergency responder safety. As previously noted, we agree with EPA's approach in providing several options to SQGs and LQGs in meeting the proposed requirement. (0188)
EPA Response: The Agency appreciates the support of this commenter regarding this provision.
Comment: While the hazardous waste of CESQG/VSQGs is not subject to Manifest requirements, these materials can still meet the DOT definition of "hazardous material." EPA acknowledges this noting that, "DOT shipping requirements do still apply." (See 80 FR 57931 (September 25, 2015).) For clarification, DOT authority would convey to these non-manifested waste materials if they otherwise met a definition of a "hazardous material" based on globally-harmonized criteria, or if they are a shipped in a packaging meeting the RQ of a CERCLA-designated "hazardous substance." In this case, the word "waste" would not be included in the shipping description of this material on a DOT shipping paper. Any non-federal entity attempting to regulate a material as a "hazardous waste" that was not otherwise identified as a "hazardous material" under these federal standards would be at risk of a challenge under DOT's preemption authority. DOT occupies the field in determining which materials are hazardous for purposes of transportation. (See FN 10.) ], in intrastate, interstate, and foreign commerce." [Footnote 3: 49 U.S.C. 5101.] "Transportation" is defined as the "movement of property and loading, unloading, or storage incidental to the movement." [Footnote 4: 49 U.S.C. 5102. These terms are defined at 49 CFR 171.8.] DOT's authority applies even to the transport of hazardous wastes along public rights-of-way within a geographically contiguous property. [Footnote 5: 40 CFR 260.10.] (0188)

EPA Response: EPA's marking and labeling regulations will not interfere with DOT's marking and labeling regulations.
Comment: Additional marking and labeling requirements for hazardous waste containers
The current practice of labeling waste chemicals as hazardous waste, along with the chemical name and appropriate containers and handling, provides adequate information for the safe management of these waste. If additional information is required in an emergency situation, staff and student can access more detailed information through multiple databases and other resources on campus. Addition information on the container would not improve safe or enhance the management of these wastes. We encourage the EPA to reconsider this proposed requirement. (0211)
EPA Response: In response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.
Comment: :: 262.15 Satellite accumulation - The change requiring "hazardous waste," chemical contents identification words AND hazard warnings on satellite containers is a significant extra burden. Some of these containers are quart or even pint size. The proposed regulation do not allow flexibility. (0214)
EPA Response: In response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.
Comment: 57965 - Container labeling issue
:: Pre-transport labels often fall off, or become torn or faded while on a drum that is accumulating waste. In addition, the transporter picking up the drum will often re-label the containers with pre-printed labels identifying the manifest number used for the pickup. It is much less common for the transporter to fill in the label already on the drum. While additional information on accumulation drums is good, it is more important for the generator to remove misleading information from containers that are being re-used to accumulate waste. (0214)
EPA Response: The Agency agrees with the above comment.
Comment: Section VIII.I.3 (Page 57965): One State does not support the proposed marking and labeling provisions for containers in SAAs. The State is concerned this proposed requirement is too burdensome for generators and will not add any additional protection. SAAs are specific to an area and the employees in that area should be trained on the hazards associated with that waste. (0217)
EPA Response: The Agency directs the commenter to its response to Commenter 0112. We believe that response also addresses the above comments.
Comment: This State also noted EPA is requesting comment for identification of waste codes, container contents and hazards of the contents to be in line with those changes being proposed for generators and transfer facilities. In general, it may not be appropriate to include such changes in this rulemaking as this rulemaking is focused on improvement of generator rules and §268.50(a)(2) is specific to owners and operators. However, the proposed rulemaking is favorable for more adequate identification of wastes being stored at a hazardous waste TSDF. This State recommends removing the following language: "or any other marking and labeling commonly used nationwide in commerce that would alert workers and emergency responders to the nature of the hazards associated with the contents of the containers." This provision is overly broad and may cause confusion in the regulated community as well as for the regulators determining compliance.
EPA Response: The Agency directs the commenter to its response to commenter 0112. We believe that response also addresses the above comments. The agency has also deleted from regulatory text the statement cited above.
Comment: Section VIII.F (Page 57949): EPA's proposal discusses new generator standards for labeling containers, tanks, drip pads, and containment buildings, designed to clearly identify hazards in accumulation areas and transfer facilities. While one State supports the concept of increasing transparency associated with hazards and simplifying hazard labeling through the use of established methods and plain English, it recommends that EPA, if possible, select a single labeling method, rather than allowing generators to select from several established methods. Selecting a single labeling method would standardize labeling of hazardous wastes across the country, creating greater continuity with regard to emergency response, particularly in cases where responders may come from bordering States, and providing regulatory bodies, generators, and other relevant entities operating in multiple States with a single method to recognize, rather than multiple potential methods. This State also recommends that EPA provide very explicit instructions to generators as to what will be acceptable to meet any plain English labeling requirements that are finalized. For example, a generator may interpret that any of the following would be acceptable labeling: "used solvent," "organic solvent," or "halogenated organic solvents." This State also recommends that EPA specify that labeling should occur at the initial point of generation. This same State supports the use of DOT hazard class labels and the National Fire Protection Association (NFPA) diamond to address this issue. DOT hazard class labels are already currently required on containers while in transport. As outlined in 49 CFR 172, DOT hazmat labels are required on specific types of packages, such as drums, totes, boxes, that are transported. The transport vehicle itself must be marked with DOT placards to warn of the hazards associated with the hazards of the materials, including hazardous wastes, being carried in a tank car, cargo tank, portable tank, bulk packages, or vehicles or containers containing non-bulk packages. NFPA diamonds are used on the exterior of buildings (including containment buildings) and tanks. Both of these methods are readily recognized by emergency response personnel. DOT hazard class labels would also provide the hazard protection awareness for both visitors and workers of the dangers associated with a container of hazardous waste. The NFPA diamond would provide identification of the hazards associated with a storage area. Additionally, contingency plans for generators and training provided for workers to explain this as part of a comprehensive hazardous communication system could easily reflect use of these labeling systems.

Another State believes leaving the options for identifying the contents and indicating the hazards of containers, tanks, drip pads and containment buildings less prescriptive will help the generator be able to choose the methods that work best for their facility. (0217)
EPA Response: The Agency directs the commenter to its response to Commenter 0112. We believe that response also addresses the above comments.
Comment: Industrial generators urge EPA to give much more consideration before adding the marking requirements in #3, #4 and #5. Together, the markings in #1 through #5 (or in #2 and #3 for satellite areas) will provide more information than is necessary. The proposed additional information will work at cross-purposes with the DOT, OSHA and the Globally Harmonized System label requirements, and with the practices of generators and TSDFs, who are moving increasingly to bar coding. EPA's approach seems haphazard, i.e., put a lot of information on each container so that there might be something of value to employees, inspectors, emergency responders, waste handlers, generators, transporters and TSDFs. See 80 FR 57948-49. More consideration must be given to the negative aspects of providing more information: causing confusion; inconsistency with other applicable regulations; creating inefficiencies in work practices; greater risk from more container handling; etc. (0219)

EPA Response: The Agency directs the commenter to its response to Commenter 0112. We believe that response also addresses the above comments. Regarding the comment about industry moving increasingly to using bar codes, the Agency in the final rule is providing generators the option of using bar codes to identify RCRA waste codes in lieu of actually marking the containers with the applicable waste codes.
Comment: Location of Inventory Records for Tanks, Drip Pads, and Containment Buildings (40 CFR §262.16(b)(6)(ii)(D) and §262.17(a)(5)(ii)(D))

EPA proposes in 40 CFR §262.16(b)(6)(ii)(D) and §262.17(a)(5)(ii)(D) that SQGs and LQGs keep their inventory records and other records associated with tanks, drip pads and containment buildings "in close proximity to the tank, drip pad or containment building." This is not practical or common, particularly for records associated with hazardous waste tanks. Such records are typically kept in a control room or a central file location and those all often are not in close proximity to the tanks, drip pads and containment buildings. As with other records kept at a facility, EPA should allow them to be kept in a central location that makes the most sense from an operational standpoint. On an inspection, the generator would be readily able to produce those records regardless of them being kept in a central office location or next to the particular hazardous waste units. Further, keeping them near the hazardous waste units presents many more opportunities for them to be lost or damaged by the elements.(0219)
EPA Response: In response to comments, the Agency has modified the proposed rule to state that generators must keep inventory logs or records with the necessary information in close proximity to the tank, drip pad and containment building; i.e., on-site and readily available for inspections.
Comment: Vlll.l.3 Strengthening the Marking and Labeling Provisions for Containers in SAAs-We object to these more stringent marking and labeling requirements. This would be more burdensome for the generators and could create confusion in the workers handling the waste and lead to errors in the markings. The necessary information is sufficiently conveyed through the manifest and LOR documents accompanying the waste. (0220)
EPA Response: The Agency disagrees with the above comment. We direct the commenter to its response to commenter 0112 to describe the changes made between the proposed rule and final rule.
Comment: 18. Proposed labeling requirements for containers of hazardous waste  -  p. 57997
The issue of labels on containers in both central accumulation areas, and satellite U.S. accumulation areas, is of great interest to the department, our stakeholders and citizens in Missouri. Missouri recently completed amendments to our state hazardous waste regulations that would change our requirements for labeling containers in both storage areas and satellite accumulation areas. While Missouri regulations have historically been more stringent than the federal regulations on this topic, with the recent changes to our regulations, and the proposed changes in this rule, Missouri's new rules would be considered less stringent and we would have to amend our state regulations again to make them equivalent to what the EPA has proposed in this rule. The department appreciates the opportunity to revisit this important topic, as we believe is of critical importance in both the prevention of releases and in ensuring that, in the event of a release, the response to the incident is appropriate for the materials being stored. (0223)
EPA Response: The agency directs the commenter to its response to Commenter 0112 to describe the changes made between the proposed rule and final rule.
Comment: In addition to the above comments on the specifics of what information should be displayed on container labels, the department, with input from Missouri stakeholders, built some flexibility into the Missouri regulations for container labeling. Missouri suggests that the situations addressed in these Missouri-specific provisions would also prove useful to generators at the federal level. First of all, in recognition of the fact that some containers are simply too small for the required label to be affixed to the container itself and to still be legible, the Missouri regulations allow labeling to be placed in a location other than on the containers for those below a certain size (e.g., labeling the locker, rack or other device holding containers under a gallon). Second, the department recognizes that DOT labeling does not make sense for all generators, e.g. some generators utilize containers for storage that will never be shipped because the contents are treated onsite, recycled onsite or transferred to another container prior to shipment; therefore, the Missouri regulations include an alternative to DOT labeling that instead requires other words that identify the contents of the container. If the federal regulations include a labeling requirement that recognizes DOT labels as a method of compliance, it makes sense to provide similar flexibility to this requirement at the federal level although any alternative method, as discussed above, should at a minimum require the chemical name and words that describe the hazards of the contents of the container.
EPA Response: Regarding the comment associated with containers too small to affix a label,in keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Regarding the second comment, we again direct the commenter to the Agency's response to Commenter 0112. We believe that response also responds to this comment. 
Comment: 80 FR 57965, column 1 (VIII., I., 3.)
Strengthening the Marking and Labeling Provisions for Containers in SAAs
The MPCA supports the proposed revision to require additional labeling of satellite hazardous waste accumulation containers for the reasons discussed by the EPA at 80 FR 57965. As already discussed above in the MPCA's comment (VII., C., 3.), the MPCA believes these container labeling changes would result in additional and appropriate awareness for generator employees and emergency response agency personnel. Minnesota has already required satellite hazardous waste containers to be labeled with both the words `Hazardous Waste' and the name or description of the contents since 1990 [14 SR 2248; revising Minn. R. 7045.0292, Subp. 4, Item B, (2)], and has found that this requirement is not difficult or an unreasonable burden for generators of any size to perform, since they must already prepare the same information for the `standard accumulation' containers that the contents of the satellite containers will be transferred to or become when the volume limit is reached. (0232)
EPA Response: The Agency appreciates the support of MPCA regarding this provision. However, in response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.
Comment: 80 FR 57980, column 1 (XII.)
Proposed Revisions to 40 CFR Part 268 -- Land Disposal Restrictions
The MPCA supports the proposed revision to align the labeling requirements for hazardous waste containers at TSDFs with those proposed for generators for the reasons discussed by the EPA at 80 FR 57980 and discussed in the MPCA's comments above (VII., C., 3.) and (VIII., I., 3.). (0232)
EPA Response: The Agency appreciates the support of MPCA regarding this provision.
Comment: Walmart believes that the existing requirements under RCRA already provide adequate protection for the environment and are sufficient to alert relevant individuals to the relevant hazards presented, particularly for the Retail Sector and consumer products. Therefore, no proposed changes are warranted. Walmart currently uses standard hazardous waste labels and a color coded bucket system to segregate hazardous wastes and to educate our associates that manage hazardous waste consumer products. This methodology has proven effective for our retail store environment. Generators should be given the flexibility they need in their respective industries and facility types to meet RCRA requirements. Too many prescriptive or additional requirements, such as waste codes, will place an undue burden on generators, and the Retail Sector in particular. In the Retail Sector, placing the waste code on a storage container provides little tangible benefit and is extremely burdensome. (0233)
EPA Response: The Agency believes its response to commenter 0112 also responds to Walmart's comments as well regarding this provision.
Comment: Clean Harbors generally supports EPA's proposal to require LQGs and SQGs to mark containers with words that identify the contents of the containers and an indication of the hazards of the container's contents, so long as it is not unduly burdensome for the generator. Use of words that identify the contents such as the names of chemicals (e.g., "acetone"), the type or class of chemical (e.g., "organic solvents"), or the DOT shipping name would be acceptable. We recommend that EPA make clear in the final rule that generators may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge"). A common name often distinguishes materials by describing the physical state (e.g., "process line floor sweepings"), process location (e.g., "line 3 paint solids"), or generator-specific nomenclature (e.g., trade names). A generator should have broad discretion to use words that are appropriate for its facility and employees.

We also recommend that the agency's definition of "containers" excludes rail cars and cars and other transport devices. (0243)


EPA Response: The Agency believes its response to commenter 0112 also responds to Clean Harbors comments as well regarding this provision. The Agency does not include rail cars and cars and other transport devices as part of its definition of containers since we believe these units exceed the 119 gallon limit identified by DOT regulations and therefore not applicable to this rule. 
Comment: The identification of the waste (chemical constituents) and its primary hazard(s) is essential and should remain the focus of the rules. The inclusion of GHS pictograms or DOT labels as a form of hazard communication consistent with the OSHA Laboratory Standard should be recommended where possible (i.e. on larger containers). (0244)


EPA Response: The Agency has simplified the marking and labeling requirements. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 
Similarly, in response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.
Regarding the identification of RCRA waste codes, generators have an obligation to start the process of identifying the applicable RCRA waste codes at the point the hazardous waste is generated, but they do not have to mark their containers with the code(s) until the waste is shipped off-site.
Comment: The proposed rules would require that additional information be included on container labels. The containers would have to be marked with words identifying the contents, as well as an indication of the hazards present. In addition, when the containers are shipped offsite, they would have to be marked with the relevant hazardous waste codes. EPA claims that it intends the labeling requirement to "increase awareness to workers". EPA does not explain why they believe there is not adequate awareness to workers. Simplot disagrees with this premise. The current rule requires employee training, which adequately addresses the awareness with the workers. Additional labeling requirements will not benefit the current program. (0245)
EPA Response: The Agency disagrees with the above comments. In an effort to improve risk communication associated with the contents of a container's hazards, the final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost. 
Comment: Proposed Change: RCRA Labeling Improvements  -  state hazards of wastes accumulated in containers Section VIII.F.1.,pages 57949-57950
EMD Position: Support
Comment/Notes: Updates regulations  -  comes closer to CA requirements. (0250)


EPA Response: The agency appreciates the support of the Environmental Management Department (EMD), Sacramento County, California regarding this provision. 


Comment: NADA does not object to EPA's proposals to require additional container labelling information from LQG and SQG generators. NADA is unaware of any automobile or truck dealership that accumulates hazardous wastes in tanks. (0253)
EPA Response: The agency appreciates the support of NADA regarding this provision. 


Comment: D. Additional Labeling Requirements are Unnecessary and Burdensome

EPA proposes two modifications to Part 262's labeling and marking provisions: (1) SQGs and LQGs must mark the containers with words, in addition to "Hazardous Waste," that identify the contents of the containers such that a third party, such as an emergency responder or a member of the general public, may recognize; and (2) SQGs and LQGs must "mark and label their containers with an indication of the hazards of the contents of the containers." See 80 Fed. Reg. at 57,949 - 50, 57,965, 57,997 (proposing new § 262.16(b)(6) for SQGs), 57,999 - 00 (proposing new § 262.17(a)(5) for LQGs. Inmar opposes both proposed modifications as applied to consumer (including pharmaceutical) products managed by retailer and healthcare facilities. 
Cluttering up the labels of containers of consumer product wastes would not only be confusing, but also would impose a significant burden on the retail and healthcare sectors. According to EPA, the proposed new labeling requirements will impose "little or no additional cost to generators." 80 Fed. Reg. at 57,950. However, it appears that EPA did not consider the fact that retailers and reverse distributors manage millions of different SKUs each year, approximately five percent (or less) of which are hazardous waste when disposed of. EPA's assessment of the likely costs of these new labeling requirements is woefully inadequate. The Agency assumes that the only cost likely to be incurred by LQGs is a one-time, up-front cost of $650.41 associated with having a programmer spend 10 hours reformatting the labeling system. 2015 Economic Assessment at 3-15. This cost estimate is too low by orders of magnitude. Since Inmar frequently consolidates multiple consumer products into one container, multiple labels may need to be applied to a single container in order to comply with the proposed contents and hazard labeling requirements. Inmar manages, at a minimum, 250,000 unique SKUs that are hazardous wastes when disposed of. Even if only 1 in every 10 of these products required the addition of only a single label to a hazardous waste container, and even assuming EPA's estimated per-label cost of $0.46 is accurate, this would result in $11,500 just for the new labels. On top of the cost of the actual labels, Inmar also would have to spend an exorbitant amount of money to develop and maintain a labeling system. Because Inmar manages millions of unique SKUs, an employee with significant training or chemistry qualifications would have to spend hundreds of hours creating a classification system for these labels. This system would have to be reviewed and updated constantly, as Inmar's waste streams are constantly changing.


The proposed labeling requirements will impose a disproportionately high burden on the retail and healthcare sectors. Due to the poor cost-to-benefit ratio as applied to the retail and healthcare sectors, consumer product wastes should be excluded from these proposed new labeling requirements. (0260)
EPA Response: In response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 
Comment: this rule as written will inappropriately hold motor carriers responsible for properly marking hazardous waste containers even when the required information has not been properly communicated to them by a shipper.

The proposal imposes no burden by requiring motor carriers storing properly marked waste incidental to transport to retain the markings on the waste container. Nor is it particularly onerous to require carriers to properly copy the proposed required information and mark a new container after consolidating other waste containers. However, unmodified, the rule will hold motor carriers responsible for ensuring the proper labeling of the waste containers even if they arrive onsite improperly marked. (0283)

EPA Response: Generators are responsible for complying with all applicable RCRA pre-transport requirements  -  not motor carriers.

Section 5.1.1 - Labeling containers with RCRA waste code prior to shipment

Comment: Allowing "over-coding" of waste would be inconsistent with EPA's statement that hazardous waste determination must be accurate. Furthermore, as certain EPA codes may represent a waste with unique properties, allowing any over-coding may result in a misunderstanding of the characteristics of the waste. Lastly, under DOT 171.2(k), you are prohibited from communicating a hazard when that hazard is not present. Generators should not apply EPA waste codes when no evidence is available to justify the inclusion of these codes. If testing is able to demonstrate that a hazardous constituent is more likely present than not at regulated levels it would be reasonable to include waste code provided that some level of periodic testing is performed. (0068)
EPA Response: One reason for including the language explaining a generator must make an accurate waste determination to ensure the wastes are properly managed is to clarify the applicability of § 262.11 in instances in which generators choose to manage their non-hazardous wastes as hazardous wastes. Even if the waste may not be hazardous, "over managing" the waste is acceptable and meets the requirements in § 262.11 because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. The practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
Comment: Requiring hazardous waste numbers when marking of containers prior to shipping hazardous waste off site to a designated RCRA facility (proposed 40 CFR 262.32). Again, while many waste generators and/or their waste vendors currently mark containers with waste code information as a best practice, there is insufficient justification or benefit to expanding the regulations to include this as a mandatory requirement. Generators are currently required to complete manifests associated with containers that accurately identify the waste code of each container shipped off-site. EPA downplays the burden of this requirement by stating that it "should not increase burdens on generators as it reaffirms commonly used waste management practices." [Footnote 6: 80 Federal Register 57948, September 25, 2015.] The fact that a practice is common does not mean that EPA is not imposing a regulatory burden by codifying that practice in the regulations. In fact, to the extent the practice of labeling drums with waste codes prior to transport is common, it is often undertaken by waste vendors at the time of waste collection and not by generators. EPA would be shifting this from a voluntary waste vendor practice to a mandatory obligation and, therefore, a new burden on waste generators.

In addition, API is concerned about the potential for these additional container labeling requirements to present a conflict with DOT shipping requirements, particularly as such conflicts are currently prohibited under 49 CFR 172.401. (0070)


EPA Response: The objective of requiring generators to identify the RCRA waste codes prior to sending their hazardous wastes off-site is so that TSDFs can readily identify the contents of hazardous waste containers they are receiving from generators and effectively treat the wastes to meet LDRs. Yes, manifests help, but the physical marking of the container directly links manifest with the container. As we stated in the preamble to the proposed rule, the Agency believes most generators, or their designated waste handlers, already mark their containers with the applicable EPA hazardous waste numbers prior to transporting their hazardous waste off site. As part of that discussion, the Agency stated that by marking containers with EPA hazardous waste numbers, the overall burden would be decreased because the TSDF would avoid the need to identify the hazardous waste or send the waste back to the generator for proper identification.
Regarding the potential for these additional container labeling requirements to present a conflict with DOT shipping requirements, particularly as such conflicts are currently prohibited under 49 CFR 172.401, there should be no conflict at all. DOT does not involve itself with RCRA waste codes. 

Comment: §262.32(c), page 58002
EPA is proposing to require the marking of waste numbers onto containers prior to transporting the containers off site. On page 57948 the agency stated the waste number on the container would be used by the receiving TSDF for effective treatment to meet LDR requirements. I disagree with this statement. A waste number alone cannot be used to determine LDR treatment standard. A waste can be eligible for the alternative treatment standard for soil, debris or even lab packs. Furthermore, to effectively treat a waste, the subcategory, treatability group, constituents of concern and underlying hazardous constituents are oftentimes needed. With only the waste number on the container the TSDF will not be able to determine the LDR requirements that must be met. Together, the LDR paperwork and the waste profile on file with the TSDF are used to ensure proper treatment. 

Furthermore, on page 57949 the agency says waste numbers on containers decrease the burden because, "it avoids the need for a TSDF to identify the hazardous waste or send it back to the generator for proper identification." Having worked at a TSDF for many years, the waste number on a container is not used for receiving waste into the TSDF. Rather, the manifest document number (on the container), in combination with the DOT shipping description (on the container) and DOT labels (on the container), are used to identify the hazardous waste. Once a container is matched to the manifest it can then be received by the TSDF. Those containers that cannot be matched to a manifest are put to the side for investigation or possible rejection back to the generator. While the burden would be minor, there would be no benefit to making this a requirement. 

I recommend not adding §262.32(c) to the final rule. (0079)
EPA Response: In response to comments, the Agency has modified its proposal regarding the marking of RCRA waste codes on containers by adding § 262.32(c) to allow generators, transporters and TSDFs, in lieu of § 262.32(b), to use a nationally recognized electronic system, such as a bar-coding system that is part of a waste management industry's waste profiling system, to identify the applicable EPA hazardous waste numbers. A waste profiling system typically consists of bar codes, scanners, and an associated computer system. Waste management industry commenters indicated that they use bar code electronic systems, similar to commercial transport companies, to profile hazardous waste. Information often includes a description of the hazardous waste in terms of physical state, common name, hazard codes, LDR treatment standards, and DOT description. (See comments from Veolia ES Technical Solutions LLC, EPA-HQ-RCRA-2012-0121-0181; Environmental Technology Council, EPA-HQ-RCRA-2012-0121-0134; Waste Management, EPA-HQ-RCRA-2012-0121-0159) Some of these electronic systems also include the EPA hazardous waste numbers. This approach also allows for the development of future technologies to accomplish the same function as the bar-coding system. The Agency is providing this flexibility because while there is considerable movement by generators and the waste management industry in adopting the use of electronic systems that contain detailed waste profiling information, it is neither universal nor mandatory. EPA is requiring that SQGs and LQGs include EPA hazardous waste codes, either by marking their containers or through electronic means, to inform the receiving TSDF of the container's contents in order to ensure hazardous wastes are managed to meet the applicable LDR treatment standards.
The Agency believes the above changes respond to the concerns of the commenter. 
Comment: 22. Regarding requiring hazardous waste numbers be marked on containers of hazardous waste prior to shipping the hazardous waste off-site for treatment, storage or disposal  -  Section VIII.E., pages 57948-57949: Colorado agrees with this proposal since many generators already mark hazardous waste containers with the applicable hazardous waste codes. However we note that this could be overly burdensome for lab packs and other containers where many wastes are combined into one container. Perhaps an exception could be made for lab packs and other containers of this type. (0085)
EPA Response: For lab packs, which typically contain many different wastes, we are providing an exception to the requirement to include EPA hazardous waste numbers if the lab packs will be incinerated. Specifically, lab packs that will be treated using the alternative treatment standard of incineration, as allowed by § 268.42(c), do not have to be marked or labeled with the EPA hazardous waste numbers. However, lab packs that containD004 (arsenic), D005 (barium), D006 (cadmium), D007 (chromium), D008 (lead), D010 (selenium) or D011 (silver), the EPA hazardous waste number must be marked or labeled with the EPA hazardous waste numbers (or use electronic means may be used). These specific metals must be identified because § 268.42(c)(4) requires any incinerator residues from lab packs that contain any of these specific metals to undergo further treatment prior to land disposal.

Comment: We request that US EPA not adopt this proposed change.

The utility of adding an additional container labeling requirement is questioned since the container will have complete DOT labeling and marking and be accompanied by a hazardous waste manifest with at least six US EPA hazardous waste codes identified.

Also, some containers may contain wastes with over 30 different US EPA waste codes (e.g., ash from a hazardous waste incinerator). Adding numerous waste codes to a container would be of limited environmental benefit and benefit only a small number of people who are knowledgeable about hazardous waste regulations. Even those individuals would need to look up each individual code to know its meaning.

Requiring generators to add all applicable waste codes to a container will likely result in numerous DOT labeling/marking regulation violations. This DOT regulations at 49 CFR §172.401 prohibit certain labels/marking on containers. (0106)
EPA Response: The Agency disagrees with the commenter. The objective of requiring generators to identify the RCRA waste codes prior to sending their hazardous wastes off-site is so that TSDFs can readily identify the contents of hazardous waste containers they are receiving from generators and effectively treat the wastes to meet LDRs. Yes, manifests help, but the physical marking of the container directly links manifest with the container. As we stated in the preamble to the proposed rule, the Agency believes most generators, or their designated waste handlers, already mark their containers with the applicable EPA hazardous waste numbers prior to transporting their hazardous waste off site. As part of that discussion, the Agency stated that by marking containers with EPA hazardous waste numbers, the overall burden would be decreased because the TSDF would avoid the need to identify the hazardous waste or send the waste back to the generator for proper identification.
Regarding the potential for these additional container labeling requirements to present a conflict with DOT shipping requirements, particularly as such conflicts are currently prohibited under 49 CFR 172.401, there should be no conflict at all. DOT does not involve itself with RCRA waste codes. 
Comment: Last, EPA proposes to require SQGs and LQGs to mark containers with the applicable RCRA hazardous waste codes prior to transporting hazardous waste off site to a designated RCRA facility for subsequent management in order for employees, inspectors, emergency responders, and waste handlers to better understand the potential hazards associated with the contents of hazardous waste contained in a unit. [Footnote 14: 80 Fed. Reg. at 57948.] This intent behind this additional labeling requirement makes sense but may seem redundant from the perspective of the generator, and may not prove useful to emergency responders if unfamiliar with RCRA hazardous waste codes. For example, in situations where a tanker is used to transport hazardous waste, DOT placards and markings are applied to the exterior of the tanker. DOT does not utilize RCRA hazardous waste codes as markings on the tanker. In addition, the RCRA hazardous waste codes are already on the hazardous waste manifest that is accompanying the shipment. (0116)
EPA Response: The objective of requiring generators to identify the RCRA waste codes prior to sending their hazardous wastes off-site is so that TSDFs can readily identify the contents of hazardous waste containers they are receiving from generators and effectively treat the wastes to meet LDRs. Yes, manifests help, but the physical marking of the container directly links manifest with the container. As we stated in the preamble to the proposed rule, the Agency believes most generators, or their designated waste handlers, already mark their containers with the applicable EPA hazardous waste numbers prior to transporting their hazardous waste off site. As part of that discussion, the Agency stated that by marking containers with EPA hazardous waste numbers, the overall burden would be decreased because the TSDF would avoid the need to identify the hazardous waste or send the waste back to the generator for proper identification.
Regarding the potential for these additional container labeling requirements to present a conflict with DOT shipping requirements, particularly as such conflicts are currently prohibited under 49 CFR 172.401, there should be no conflict at all. DOT does not involve itself with RCRA waste codes. 

Comment: UNL requests that the Agency consider amending the proposal to mark containers with the applicable EPA hazardous waste number(s)/code(s) prior to transporting hazardous waste off site to a designated RCRA facility for subsequent management. As an alternative, containers may be marked with unique identifying numbers or bar codes, which are then cross-referenced to manifests and LDRs. This practice achieves the Agency's goal of ensuring proper notification to the TSDF without the added record-keeping burden of physically recording all RCRA codes on each container, and is consistent with current industry practice where some codes may be listed with the bar-code or other cross-reference label but not necessarily all codes. 
In fact, RCRA codes are often used in DOT shipping descriptions and emergency responders are trained to recognize hazards communicated through RCRA codes. (0121)
EPA Response: In response to comments, the Agency has modified its proposal regarding the marking of RCRA waste codes on containers by adding § 262.32(c) to allow generators, transporters and TSDFs, in lieu of § 262.32(b), to use a nationally recognized electronic system, such as a bar-coding system that is part of a waste management industry's waste profiling system, to identify the applicable EPA hazardous waste numbers. A waste profiling system typically consists of bar codes, scanners, and an associated computer system. Waste management industry commenters indicated that they use bar code electronic systems, similar to commercial transport companies, to profile hazardous waste. Information often includes a description of the hazardous waste in terms of physical state, common name, hazard codes, LDR treatment standards, and DOT description. (See comments from Veolia ES Technical Solutions LLC, EPA-HQ-RCRA-2012-0121-0181; Environmental Technology Council, EPA-HQ-RCRA-2012-0121-0134; Waste Management, EPA-HQ-RCRA-2012-0121-0159) Some of these electronic systems also include the EPA hazardous waste numbers. This approach also allows for the development of future technologies to accomplish the same function as the bar-coding system. The Agency is providing this flexibility because while there is considerable movement by generators and the waste management industry in adopting the use of electronic systems that contain detailed waste profiling information, it is neither universal nor mandatory. EPA is requiring that SQGs and LQGs include EPA hazardous waste codes, either by marking their containers or through electronic means, to inform the receiving TSDF of the container's contents in order to ensure hazardous wastes are managed to meet the applicable LDR treatment standards.
The Agency believes the above changes respond to the concerns of the commenter. 
Comment: It is infeasible to use RCRA codes or RCRA characteristics (i.e., ignitable, corrosive, reactive, toxic) for the same reason. In some cases, RCRA codes or characteristics won't be known until after a waste is generated and it can be tested or generator knowledge applied, which makes labeling with RCRA codes during accumulation infeasible. Descriptors such as "toxic" are non-specific and have different meanings, depending on the reference. It is also not clear how many descriptors would be necessary to adequately describe the hazards of waste in a container. For example, the GHS system recognizes 16 classes of physical hazards, 12 classes of health hazards, and 2 classes of environmental hazards. It is conceivable and likely that multiple classes may pertain to any given waste thereby creating a situation where an entity could be deemed as non-compliant if only one of several possible hazards were missing from the label. In the case of by-products or mixed solutions, GHS information is not likely to be available to facilitate labeling. (0121)

EPA Response: Marking containers with the applicable RCRA waste codes or using the alternative bar coding system is independent of marking/labeling containers with the hazards of the container's contents. Both requirements serve a purpose for workers, emergency responders, etc.
Comment: FR Page: 57948 - 57949
Citation: 40 CFR 262.32
Topic: Requiring Hazardous Waste Numbers When Marking of Containers Prior to Shipping Hazardous Waste Off Site to a Designated RCRA Facility (VIII.E.)
Comment: WRPS requests the addition of text to this proposed change to specify that only the first six applicable hazardous waste codes must be included with the marking. All subsequent hazardous waste codes, beyond the first six, may be identified in the Additional Information section of the manifest. (0123)
EPA Response: The Agency did not specify a maximum number of RCRA waste codes that code be placed on a container, but the Agency is not changing its existing policy that first six applicable hazardous waste codes must be included with the marking and all subsequent hazardous waste codes, beyond the first six, may be identified in the Additional Information section of the manifest. As an alternative, a generator may use a nationally recognized electronic bar coding system that may accommodate as many RCRA waste codes as necessary. 
Comment: However, the requirement to require RCRA codes on containers is duplicative and of minimal value compared to the expanded labeling, which includes a description of the hazards (NFPA, GHS etc.), description of the contents and the words "hazardous waste." EPA believes that RCRA codes are need on each container for materials sent offsite, but this is of minimal value for the following reasons:

:: The manifest already includes the RCRA codes for each line item in the shipment; 
:: The TSDFs have a profile which includes the RCRA codes for the materials to be managed; 
:: NFPA, GHS and/or HMIS labeling on each container already provides hazard information necessary to store and manage the material; 
:: Each shipment is required to include Land Disposal Restriction documentation showing each RCRA code, its applicable treatment requirements and underlying hazardous constituents; and 
:: Additional placarding with RCRA codes on containers such as tank trailers and roll-offs is truly inconsistent with DOT requirements. (0128)


EPA Response: The objective of requiring generators to identify the RCRA waste codes prior to sending their hazardous wastes off-site is so that TSDFs can readily identify the contents of hazardous waste containers they are receiving from generators and effectively treat the wastes to meet LDRs. Yes, manifests help, but the physical marking of the container directly links the manifest with the container. As we stated in the preamble to the proposed rule, the Agency believes most generators, or their designated waste handlers, already mark their containers with the applicable EPA hazardous waste numbers prior to transporting their hazardous waste off site. As part of that discussion, the Agency stated that by marking containers with EPA hazardous waste numbers, the overall burden would be decreased because the TSDF would avoid the need to identify the hazardous waste or send the waste back to the generator for proper identification.
Similarly, in response to comments, the Agency has modified its proposal regarding the marking of RCRA waste codes on containers by adding § 262.32(c) to allow generators, transporters and TSDFs, in lieu of § 262.32(b), to use a nationally recognized electronic system, such as a bar-coding system that is part of a waste management industry's waste profiling system, to identify the applicable EPA hazardous waste numbers. A waste profiling system typically consists of bar codes, scanners, and an associated computer system. Waste management industry commenters indicated that they use bar code electronic systems, similar to commercial transport companies, to profile hazardous waste. Information often includes a description of the hazardous waste in terms of physical state, common name, hazard codes, LDR treatment standards, and DOT description. (See comments from Veolia ES Technical Solutions LLC, EPA-HQ-RCRA-2012-0121-0181; Environmental Technology Council, EPA-HQ-RCRA-2012-0121-0134; Waste Management, EPA-HQ-RCRA-2012-0121-0159) Some of these electronic systems also include the EPA hazardous waste numbers. This approach also allows for the development of future technologies to accomplish the same function as the bar-coding system. The Agency is providing this flexibility because while there is considerable movement by generators and the waste management industry in adopting the use of electronic systems that contain detailed waste profiling information, it is neither universal nor mandatory. EPA is requiring that SQGs and LQGs include EPA hazardous waste codes, either by marking their containers or through electronic means, to inform the receiving TSDF of the container's contents in order to ensure hazardous wastes are managed to meet the applicable LDR treatment standards.
Also, the Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
Regarding the potential for these additional container labeling requirements to present a conflict with DOT shipping requirements, particularly as such conflicts are currently prohibited under 49 CFR 172.401, there should be no conflict at all. DOT does not involve itself with RCRA waste codes and RCRA codes will not be required on containers such as tank trailers and roll-offs. 

Comment: Dow Comment: Again, while many waste generators and/or their waste vendors currently mark containers with waste code information as a best practice, there is insufficient justification or benefit to expanding the regulations to include this as a mandatory requirement.
EPA Response: The Agency disagrees with the above comment. The objective of requiring generators to identify the RCRA waste codes prior to sending their hazardous wastes off-site is so that TSDFs can readily identify the contents of hazardous waste containers they are receiving from generators and effectively treat the wastes to meet LDRs. Yes, manifests help, but the physical marking of the container directly links manifest with the container. As we stated in the preamble to the proposed rule, the Agency believes most generators, or their designated waste handlers, already mark their containers with the applicable EPA hazardous waste numbers prior to transporting their hazardous waste off site. As part of that discussion, the Agency stated that by marking containers with EPA hazardous waste numbers, the overall burden would be decreased because the TSDF would avoid the need to identify the hazardous waste or send the waste back to the generator for proper identification.

Comment: G. ETC Opposes Requiring Generators to Mark Hazardous Waste Numbers (Codes) on Containers due to it being Unnecessary and Confusing

EPA is proposing to modify § 262.32 to require SQGs and LQGs to mark their containers with the applicable EPA hazardous waste numbers (usually referred to as waste codes) prior to shipping hazardous waste off site. 80 FR 56948. ETC believes this new requirement would greatly burden generators, and cause confusion at TSD facilities that already have clear procedures under their RCRA permits and Waste Analysis Plans for profiling hazardous wastes, with no real benefit to emergency responders who are unlikely to examine drum labels or rely on hazardous waste codes in responding to an emergency.

We understand EPA's basic assumption that including more information on containers might be helpful. However, EPA is also proposing that generators mark containers with "words that identify the contents" and "an indication of the hazards of the container's contents." 80 FR 57949. The employees of generators are much more familiar with the common names of waste materials, and it is very unlikely that they have memorized all of the RCRA hazardous waste codes and the types of wastes to which the codes apply. In addition, multiple waste codes may apply under the mixture or derived-from rules, even though many of those codes do not accurately describe the waste. Likewise, the same waste codes may apply as a result of the process of generation to wastes that are different. Thus, waste codes are more appropriate for use by experienced personnel who are trained in RCRA requirements, and are not of much use to the typical generator employee.

EPA's rationale that marking waste codes on containers will help TSDFs readily identify the contents is mistaken. TSD facilities already have detailed waste profile procedures in place and most rely instead on bar codes, scanners, and computerized systems to accurately identify individual drum contents and determine the appropriate management processes at the TSDF. Waste codes marked on containers by generators would not improve this identification system, and in fact would complicate and possibly undermine it. The TSDF waste profile process fully describes the waste in terms of physical state, common name, hazard codes, LDR applicability, and DOT description. TSDFs commonly prepare labels and shipping papers for their generator customers, so the requirement to also mark drums with waste codes does not add any useful information and simply imposes a burden and potential for mistake and confusion.

Emergency responders are also more familiar with common names and DOT markings, rather than RCRA waste codes. In an emergency event, responders are unlikely to get close enough to individual drums to safely read the waste codes, and if they can then the drums' DOT hazard class label and UN number would be used for response. In most instances, emergency responders would obtain information on the contents and characteristics of the waste directly from the generator, rather than by attempting to read and translate waste codes marked on drums.

While the ETC wants to fully support EPA's proposed improvements to the generator standards, we are certain that marking drums with waste codes is a well-intentioned but seriously impractical and unnecessary proposal. (0134)
*EPA Response: The Agency believes the response to Commenter 0128 above is also responsive to the comments raised by ETC as well.
Comment: V. ETC Comments on Revisions to 40 CFR Part 263 Transporter Standards

We understand the need for conforming changes to the transporter standards for marking and labeling of containers, but again we must oppose the proposal for transporters to add waste codes to containers at transfer facilities for the reasons stated above. 80 FR 57977. In addition, transporters should not be put in the position of marking and labeling drums which is the generator's responsibility. Transporters are, instead, required to follow DOT requirements.

EPA's stated reason is to "help the TSDF receiving the hazardous waste comply with the LDR regulations," 80 FR 57978/1, but this rationale is nonsensical. TSD facilities begin to ensure compliance with the LDR requirements at the time of contracting with the generator for treatment and disposal of the waste, and this effort continues through waste profiling, transportation and receipt of the shipment, and logging into the TSD facility's inventory of waste. Requiring the transporter to put waste codes on drums in transfer facilities is of little to no value and will only disrupt transfer facility operations.

When the transporter consolidates two containers with the same hazardous waste into a new container, or mixes two different compatible hazardous wastes in a single container, we agree that the transporter than should be responsible for marking the containers with words that describe the waste and its hazardous characteristics. The transporter should be able to use the information on the original containers or manifest from the generator for this purpose. (0134)
EPA Response: The Agency agrees with the above comments. However, to be clear, if in the process of consolidating hazardous wastes the transporter/transfer facility generates a new hazardous waste, then new marking and labeling of the container's contents is required. We believe the commenter would agree to this statement. Otherwise, there is no need for a transporter or transfer facility to mark a container with the applicable RCRA waste codes since the generator will have taken care of that requirement before the waste was shipped off-site. The Agency also understands that TSD facilities assist generators in complying with LDR requirements when they contract with the generator for treatment and disposal of the waste, and this effort continues through waste profiling, transportation and receipt of the shipment, and logging into the TSD facility's inventory of waste. 
Comment: EPA proposes to require that SQGs and LQGs mark their containers with all the applicable EPA hazardous waste codes prior to transporting the wastes offsite to a TSDF. EPA explains that this new requirement will help TSDFs more readily identify the contents of hazardous waste containers received, and effectively treat the waste to the applicable LDR standards. EPA indicated that this should reduce the burden for a TSDF by eliminating the need for the TSDF to identify the hazardous waste or send it back to the generator for proper identification. While we sincerely appreciate the Agency's concern about TSDF's ability to identify hazardous waste they receive, we are concerned that the proposal is impractical and stems from a lack of understanding of how TSDFs obtain and use hazardous waste information.

We think it is infeasible to include all waste codes applicable to some waste streams on a container label. For example, ash from a RCRA incinerator may have hundreds of applicable waste codes. Furthermore, container labels are not the primary source of information for waste management at the TSDF. Typically, generators communicate the waste codes applicable to a particular waste stream to the TSDF through a combination of electronic and paper systems. Most TSDFs require a generator to submit a waste profile for approval prior to receipt of the waste, and the profile must include all applicable waste codes. For transport to the TSDF, up to six waste codes may be included in section 13 of the Uniform Hazardous Waste Manifest. Additional waste codes may be included in section 14 or on an addendum. Further, all applicable waste codes must be included on the Land Disposal Restrictions (LDR) form that accompanies the first shipment of waste, and if the waste codes might change, a new LDR form is required with each such shipment. Both the information on the manifest and the LDR form is usually entered into a computerized waste tracking system that the TSDF uses to ensure compliance with LDR standards. Most decision makers in the TSDF will obtain information about the waste from the tracking system or directly from the LDR and manifest forms, and may never see the container label. Additionally, prior to accepting a waste shipment, a TSDF will sample and identify the waste in accordance with its Waste Analysis Plan, which is an integral part of the facility's permit. Because the proposed provision is impractical and will not reduce burden for TSDFs, we recommend the Agency eliminate this proposed requirement or require no more than six waste codes consistent with the manifest requirements. (0159)


EPA Response: The Agency believes the response to Commenter 0128 above is also responsive to the comments raised by this commenter as well.
Comment: DTSC would also support requiring hazardous waste numbers on containers within three days of placing the waste in the container, or requiring pending analysis. (0174)
EPA Response: The Agency appreciates the support of DTSC regarding this provision. Generators must start the process of identifying RCRA waste codes at the point of generation but they need not mark their containers with the applicable RCRA waste codes until sending the wastes off-site. 
Comment: Preamble Section VIII.E. CT DEEP supports EPA's proposal to require that generators mark their containers with the applicable EPA hazardous waste "code" numbers when shipping their hazardous wastes off-site. CT DEEP agrees with EPA that this will make wastes easier to identify by on-site personnel, CT DEEP inspectors, emergency responders, and the transporters and TSDFs that the containers are shipped to. However, CT DEEP is aware of certain waste streams that have very large numbers of waste codes (e.g., "lab packs"), which may make this requirement unfeasible, or may make it appropriate for some sort of alternative way of providing this information (e.g., in the case of "lab packs," by including all the waste codes in a packing slip that is attached to the container). (0178)
EPA Response: Generators with more than 6 RCRA waste codes may include the additional waste codes in the comment section of the manifest, or in lieu of that, use a nationally recognized bar coding system to include such information as part of a generator's waste profile with a TSDF. 
For lab packs, which typically contain many different wastes, we are providing an exception to the requirement to include EPA hazardous waste numbers if the lab packs will be incinerated. Specifically, lab packs that will be treated using the alternative treatment standard of incineration, as allowed by § 268.42(c), do not have to be marked or labeled with the EPA hazardous waste numbers. However, lab packs that contain D004 (arsenic), D005 (barium), D006 (cadmium), D007 (chromium), D008 (lead), D010 (selenium) or D011 (silver), the EPA hazardous waste number must be marked or labeled with the EPA hazardous waste numbers (or use electronic means may be used). These specific metals must be identified because § 268.42(c)(4) requires any incinerator residues from lab packs that contain any of these specific metals to undergo further treatment prior to land disposal.

Comment: Contrary to EPA's opinion that more information on the containers is helpful, this new requirement would not only greatly burden generators but also potentially cause confusion as TSD facilities that already have detailed procedures in their RCRA permits and Waste Analysis Plans for profiling and managing hazardous wastes that don't require the waste codes to appear on the container labels. TSD facilities rely mostly on the information read from bar codes, scanners, and computerized systems rather than having employees actually read labels to accurately identify individual drum contents and determine the appropriate management processes at the TSD. Waste codes marked on containers by generators would not substantially improve this identification system. The TSD waste profiling process fully describes the waste in terms of physical states, common name, hazard codes, waste codes and LDR applicability, and DOT description. It is not necessary that all of this information appear on a container label so long as the TSD can through referencing by a container or waste profile number derive the information. Based on Veolia's experience as a generator and TSD operator, the proposal to also mark drums with waste codes does not add any useful information and simply imposes a burden and potential for mistake and confusion.

Veolia should also point out that it is virtually impossible for a generator to display all the applicable waste codes assigned to their waste on the container label due to the extensive number of waste codes that might apply as a result of the RCRA "derived from" rules. It is not uncommon for wastestreams to have 10 or more waste codes, especially when multiple wastestreams are consolidated into tanks or containers. Alternatively, EPA would need to limit the maximum number of wastes codes that are required to appear on a container label to be 6, which would be consistent with the number of waste codes that are included on the uniform hazardous waste manifest in section 13. (0181)
EPA Response: The Agency believes the response to Commenter 0128 above is also responsive to the comments raised by this commenter as well.Also, generators with more than 6 RCRA waste codes may include the additional waste codes in the comment section of the manifest, or in lieu of that, use a nationally recognized bar coding system to include such information as part of a generator's waste profile with a TSDF. 
Comment: VIII.E. Requiring Hazardous Waste Numbers When Marking of Containers Prior to Shipping Hazardous Waste Off Site to a Designated RCRA Facility (40 CFR 262.32)
DEQ does not believe that facilities should be required to mark hazardous waste containers with EPA hazardous waste numbers. Although this increased regulation would have the potential to improve the state inspection process, DEQ is of the opinion that this requirement is excessive and there should be, at most, six EPA hazardous waste numbers per container. This would allow for the EPA hazardous waste numbers that are most representative of the wastes to be identified without requiring potentially tens of EPA hazardous waste numbers. (0182)
EPA Response: The Agency believes the response to Commenter 0128 above is also responsive to the comments raised by this commenter as well. Also, generators with more than 6 RCRA waste codes may include the additional waste codes in the comment section of the manifest, or in lieu of that, use a nationally recognized bar coding system to include such information as part of a generator's waste profile with a TSDF.
Comment: It is infeasible to use RCRA codes or RCRA characteristics (i.e., ignitable, corrosive, reactive, toxic) for the same reason. In some cases, RCRA codes or characteristics will not be known until after a waste is generated and it can be tested or generator knowledge applied, which makes labeling with RCRA codes during generation or satellite accumulation premature or infeasible. (0183)
EPA Response: The Agency believes the response to Commenter 0128 above is also responsive to the comments raised by this commenter as well. Generators must start the process of identifying RCRA waste codes at the point of generation but they need not mark their containers with the applicable RCRA waste codes until sending the wastes off-site. 
Comment: Requiring Hazardous Waste Numbers When Marking of Containers Prior to Shipping Hazardous Waste Off Site to a Designated RCRA Facility

KULC-EHS requests that the Agency consider amending the proposal to mark containers with the applicable EPA hazardous waste number(s)/code(s) prior to transporting hazardous waste off site to a designated RCRA facility for subsequent management. As an alternative, containers may be marked with unique identifying numbers or bar codes, which are then cross-referenced to manifests and LDRs. This practice achieves the Agency's goal of ensuring proper notification to the TSDF without the added record-keeping burden of physically recording all RCRA codes on each container, and is consistent with current industry practice where some codes may be listed with the bar-code or other cross-reference label but not necessarily all codes. (0183)
EPA Response: The Agency believes the response to Commenter 0128 above is also responsive to the comments raised by this commenter as well. Also, generators with more than 6 RCRA waste codes may include the additional waste codes in the comment section of the manifest, or in lieu of that, use a nationally recognized bar coding system to include such information as part of a generator's waste profile with a TSDF. 

Comment: 262.23 Marking prior to transportation
Generally support proposal. Would ask for clarification of when "prior to transport" starts. Is it at the point that container ceases to have waste added to it? Does it begin once the transporter is contacted? Can it be done at the point that container is being loaded for transport? (0196)
EPA Response: Prior to transport may include any of the three points in the waste management/pre-transport process the commenter has identified. It may also include once the waste is generated. While unclear, we believe the commenter is discussing when to place RCRA waste codes on the container.
Comment: 7) Requiring hazardous waste numbers when marking containers

It is not necessary to add this to existing labeling requirements. Containers are already labeled as "Hazardous Waste" and a description of the contents. The EPA waste number is very esoteric and is of little use to emergency responders or shippers. The hazardous waste number is already required on the manifest. In addition, given the number of small containers generated by academic institutions there is a practical limit to how much information can physical be recorded on the container or is even useful to have on the container. (0212)
EPA Response: The Agency disagrees with the above comments. We direct the commenter to our response to Commenter 0128. We believe that response also addresses what requirements we are finalizing and the reasons why.
Comment: Section VIII.E (Page 57948): The States support the proposal to require marking hazardous waste numbers on containers prior to shipping the hazardous waste off-site to a designated facility. The proposed marking adds another level of hazard communication for regulatory inspectors and emergency responders. This additional marking information also provides for quicker and more confident acceptance screening at the receiving facility. It is noted that many permitted one-year storage facilities already have this marking requirement for containers accepted into the storage unit, both from on-site as well as off-site generators and/or facilities.

One State believes the facility should mark hazardous waste containers with EPA hazardous waste numbers at the time of placement into the facility's central accumulation area. This increased regulation would improve the inspection process and the facility's understanding of what hazards are associated with the hazardous wastes the facility stores on-site. (0217)
EPA Response: We direct the commenter to our response to Commenter 0128. Regarding when to place mark containers with RCRA waste codes, generators must start the process of identifying the applicable waste codes when the wastes is first generated, but they have until just before shipping the wastes off-site to actually mark the containers with this information.
Comment: Additionally, EPA proposes to require SQGs and LQGs to mark containers with the applicable RCRA hazardous waste codes prior to transporting hazardous waste off-site to a designated RCRA facility for subsequent management in order for employees, inspectors, emergency responders, and waste handlers to better understand the potential hazards associated with the contents of hazardous waste contained in a unit. The intent behind this additional labeling requirement makes sense but may seem redundant from the perspective of the generator, and may not prove useful to emergency responders if unfamiliar with RCRA hazardous waste codes. Most States believe DOT shipping codes are not the best choice for identification of contents. "Spent solvent" or "Paint waste" are better choices, something easy to understand and terms that at facility employee would generally use. Additionally, most emergency responders do not know what the RCRA Hazardous waste codes are and what they mean. (0217)

EPA Response: We direct the commenter to our response to Commenter 0123. We believe that response is also applicable here. 
Comment: Labeling with a "waste profile number" or bar code should also be considered because of the efficiencies that results from using scanning equipment that increasingly is being used at TSDF and generator sites. Indeed, most TSDFs currently use unique drum identification systems in bar codes to track each drum once it is received. (0219)
EPA Response: The Agency agrees with this comment and has incorporated the suggestion into the final rule. 
Comment: The utility of adding hazardous waste codes to each container when it is sent off-site needs further consideration. Each container will already have complete DOT labeling and markings, and be accompanied by a hazardous waste manifest where up to six EPA hazardous waste codes must be identified. In addition, some wastestreams may have well over twenty or thirty different EPA waste numbers (e.g., ash from a hazardous waste incinerator). It seems unlikely that adding so many EPA waste code numbers to a container would be of any useful benefit. Further, as noted above, requiring an SQG/LQG to place four character long, alpha numeric, codes on a container, of arbitrary size, shape, text color, and label background color, will likely result in the SQG/LQG occasionally violating DOT labeling/marking regulations at 49 CFR §172.401, which prohibits confusing or conflicting labels. (0219)

EPA Response: We direct the commenter to our response to Commenter 0123. We believe that response is also applicable here.
Comment: Hazardous waste codes on containers do not provide usable information to the public or emergency responders. The hazardous waste codes are already identified on the shipping papers, to which emergency responders can refer. (0219)
EPA Response: We direct the commenter to our response to Commenter 0123. We believe that response is also applicable here.
Comment: VIII.E Requiring hazardous waste numbers when marking of containers prior to shipping hazardous waste off site to a designated RCRA facility-We do not support to this proposal. Requiring the hazardous waste code on the container would be burdensome and unnecessary. The receiving facility will know what it's receiving from the manifest and the Land Disposal Restriction notice. In addition, confusion could occur if there is more than one waste code and the information on the container is too cluttered, along with the other words and phrases EPA is proposing in different sections of this Proposed Rule. It is also unclear at what point EPA is requesting this information be added to the container. The phrase "prior to shipping" could technically mean the point in which the waste is first generated and containerized. (0220)
EPA Response: We direct the commenter to our response to Commenter 0128. Regarding when to mark containers with RCRA waste codes, generators must start the process of identifying the applicable waste codes when the wastes is first generated, but they have until just before shipping the wastes off-site to actually mark the containers with this information.
Comment: Page 57948 Requiring Hazardous Waste Numbers When Marking of Containers Prior to Shipping
The EPA is proposing to require SQGs and LQGs to mark their containers with the hazardous waste codes prior to transporting their hazardous waste off site. The EPA needs to define "prior to transporting." What is the time frame for "prior to transport"? Minutes, hours or days? Marking of containers with the applicable hazardous waste codes prior to shipping off site provides no additional protection to the environment or to waste personnel. (0230)
EPA Response: We direct the commenter to our response to Commenter 0128. Regarding when to mark containers with RCRA waste codes, generators must start the process of identifying the applicable waste codes when the wastes is first generated, but they have until just before shipping the wastes off-site to actually mark the containers with this information.
Comment: 80 FR 57948, column 3 (VIII., E.)
Requiring Hazardous Waste Numbers When Marking of Containers Prior to Shipping Hazardous Waste Off Site to a Designated RCRA Facility
The MPCA supports the proposed requirement for SQGs/LQGs to label hazardous waste containers with the `EPA hazardous waste numbers' of the wastes they contain prior to shipment off-site. However, as discussed in the MPCA's comment above (VII., C., 3.), the MPCA believes there may be an additional question not discussed at 80 FR 57948-57949: is EPA's intent for all EPA hazardous waste codes known or potentially present in the container to be included on the label, or only a limited number of those, in parallel to the Uniform Hazardous Waste requirement "...most representative of the properties of the waste..." [40 CFR 262 Appendix, Item 13; 70 FR 10788]? While in most instances the MPCA has observed that only a relatively few hazardous waste codes will apply to the waste in a container, just as discussed in the Uniform Hazardous Waste Manifest Final Rule Preamble, on occasion many more waste codes may apply to a container, such as lab packs. (0232)


EPA Response: With the manifest, generators with more than 6 RCRA waste codes may include the additional waste codes in the comment section of the manifest. For the purposes of container marking and labeling, generators also must include all the applicable RCRA waste codes. For container labeling, generators have the option of using a nationally recognized electronic system such as bar coding to capture the hazardous waste codes, in lieu of marking their containers with the EPA waste codes. 

Comment: EPA is proposing to modify § 262.32 to require SQGs and LQGs to mark their containers with the applicable EPA hazardous waste numbers (usually referred to as waste codes) prior to shipping hazardous waste off site. Clean Harbors believes this new requirement would greatly burden generators, and cause confusion at TSD facilities that already have clear procedures under their RCRA permits and Waste Analysis Plans for profiling hazardous wastes, with no real benefit to emergency responders who are unlikely to examine drum labels or rely on hazardous waste codes in responding to an emergency.

We understand EPA's basic assumption that including more information on containers might be helpful. We disagree with this assumption. The employees of generators are much more familiar with the common names of waste materials, and it is very unlikely that they have memorized all of the RCRA hazardous waste codes and the types of wastes to which the codes apply. In fact, it is our experience the RCRA codes are not meaningful or helpful to generator employees. In addition, multiple waste codes often apply under the mixture or derived-from rules, even though many of those codes do not accurately describe the waste. Likewise, the same waste codes may apply as a result of the process of generation, even though the actual wastes are not the same. Thus, waste codes are more appropriate for use by experienced personnel who are highly trained in RCRA requirements, and are not of much use to the typical generator employee.

In addition, EPA's rationale that marking waste codes on containers will help TSDFs readily identify the contents is mistaken. TSD facilities already have detailed waste profile procedures in place and rely instead on bar codes, scanners, and computerized systems to accurately identify individual drum contents. Waste codes marked on containers by generators would not improve this identification system, and in fact could possibly complicate and undermine it. The TSDF waste profile process fully describes the waste in terms of physical state, common name, hazard codes, LDR applicability, and DOT description. TSDFs commonly prepare labels and shipping papers for their generator customers, so the requirement to also mark drums with waste codes does not add any useful information and simply imposes a burden and potential for mistake and confusion.

Emergency responders are also more familiar with common names and DOT markings, rather than RCRA waste codes. In an emergency event, responders are unlikely to get close enough to individual drums to safely read the waste codes, and if they can then the drums' DOT hazard class label and UN number would be used for response. In the vast majority of instances, emergency responders would obtain information on the contents and characteristics of the waste directly from the generator, or through the TSD facility it the container was located at the TSD facility, rather than by attempting to read and translate waste codes marked on drums. (0243)

EPA Response: The Agency appreciates the comments of Clean Harbors. We direct Clean Harbors to our response to Commenter 0128. We believe that response is also applicable to Clean Harbor's concerns.
Comment: We have concerns with value and accuracy in the application of RCRA waste codes on accumulation containers in the satellite accumulation area (SAA). (0244)
EPA Response: As finalized, generators must start the process of identifying RCRA waste codes at the point of waste generation. However, placement of these codes on containers is not necessary until the containers are in pre-transport mode being readied for shipment off-site to a RCRA TSDF. 
Comment: Page 57948-49: 
E. Requiring Hazardous Waste Numbers When Marking of Containers Prior to Shipping Hazardous Waste Off Site to a Designated RCRA Facility (40 CFR 262.32)

DC supports this change. (0248)
EPA Response: The Agency appreciates the support of the DC Government regarding this provision. 
Comment: The requirements for including the words "Hazardous Waste," the identification of the contents; an indication of the hazard; and the date of beginning accumulation are sufficient to allow captive facilities to properly manage their wastes. Adding a waste code to containers managed on-site does not improve their ability to properly manage that waste.

CRWI believes that including waste codes on container labels are only needed when those containers are transported off-site to a third party. We believe that when waste codes are included on a container label, the number of codes should have the same restrictions as are on the uniform manifest form (restricted to six waste codes). Any remaining applicable codes can be included on the LDR Notification or Certification form which is required to be submitted to the destination facility at least initially and whenever the characteristics of the waste changes. For management at captive facilities, the words "hazardous waste," the identification of the contents, an indication of the hazard, and the date of beginning accumulation are sufficient. (0255)
EPA Response: The Agency directs this commenter to Commenter 0128. We believe that response is also applicable to this commenter as well. 
Comment: MU does not support this change as proposed. It is not uncommon for lab packs or waste bulked from laboratories to contain 20 or more codes. Currently the manifest only requires management of the six most applicable EPA hazardous waste numbers. If all hazardous waste codes are truly needed on the transportation container, how has the universal manifest system for transportation operated safely with only the six most applicable for years? MU would support this change if it were limited to the first six codes that are listed on the Uniform Hazardous Waste Manifest but not requiring a duplication of the full list being provided through other mandatory paperwork. (0256)
EPA Response: With the manifest, generators with more than 6 RCRA waste codes may include the additional waste codes in the comment section of the manifest. For the purposes of container marking and labeling, generators also must include all the applicable RCRA waste codes. For container labeling, generators have the option of using a nationally recognized electronic system such as bar coding to capture the hazardous waste codes, in lieu of marking their containers with the EPA waste codes. 

Comment: Remove Requirements For Hazardous Waste Numbers On Containers

Heritage does not support any requirements imposed on generators, transporters, or transfer facilities for marking hazardous waste numbers on containers. Further, EPA's rationale for a perceived need for additional container marking is incorrect.

Two scenarios/timelines are generally applicable to labeling containers; initially when waste is generated, and again when waste is being prepared for shipment. Often these initial and final labeling events use the same labels, so that a container is "shipment ready" upon initial generation. Heritage also recognizes that certain hazardous wastes are completely managed onsite, but this is a small percentage of generated hazardous wastes.

In Heritage's experience, a generator's most valuable reference for a given hazardous waste's identity is the common name of the material, using terminology that is familiar to the generator's employees that are handling the waste. Additionally, the generation of multiple wastes from a given process, which may carry identical hazardous waste numbers, is also quite common. A common name, in contrast to hazardous waste numbers, often distinguishes materials by a combination of physical state (e.g., process X floor sweepings, process X sludges), process location (e.g., line X paint solids), or generator-specific nomenclature (e.g., trade names). Therefore, the addition of hazardous waste numbers to containers in these scenarios adds no additional context to improve or enhance management of these wastes.

The next two most valuable container label elements include DOT information and off-site waste treatment facility (TSDF) waste approval references. Generators shipping materials off-site for disposal, which again represents the majority of managed containers, must undergo an approval process for the selected TSDF consistent with the TSDF's Waste Analysis Plan. This process occurs well in advance of shipment, and also occurs very early in the waste generation process. Comprehensive information about the waste is collected in this approval process. The end result is a fully described waste in terms of physical state, common name, hazard codes, LDR applicability, DOT description and label requirements. In fact, TSDFs commonly supply generators with labels, and prepare/configure manifests for off-site shipment. TSDFs do not need to "readily identify the contents of hazardous waste containers they are receiving from generators" (80 FR 57948) since they know exactly what the waste contains, and have supplied the container labels. Again, the physical addition of printed hazardous waste numbers to the containers adds no additional context to improve or enhance management of these wastes since those details are already known by the parties involved in the process.

Apart from generator and TSDF employees, the other two major stakeholders in the container management labeling process are regulatory officials and emergency responders. While conducting a site inspection, a regulatory official would simply ask generator personnel if there were any issues regarding a container that required clarification. This question and answer scenario will most often lead to a paperwork review (e.g., manifests, waste determination, TSDF approval documents), which again minimizes the importance of what is actually marked on the container. Emergency responders, on the other hand, are typically much more familiar with container DOT markings than RCRA markings. Assuming that an emergency responder can actually get close enough to a container to safely read the container label during an incident, the container's DOT hazard class label and UN number preceding the proper shipping name would be used as a secondary emergency response mechanism. The primary emergency response mechanism would be questioning the generator regarding the contents and characteristics of the waste. As with all the above situations, marking all the hazardous waste numbers on a container offers no significant enhancements for managing the containers.

Finally, there is a physical aspect that makes EPA's proposed labeling requirement impractical. There are more than 500 EPA hazardous waste numbers. A complex generator waste can easily be assigned dozens of EPA hazardous waste numbers. Applicable hazardous waste numbers from TSDF-generated wastes can number in the 100s due to implications of the mixture and derived-from rule requirements. Acquiring printers, configuring label content, finding label stock, and actually applying what would need to be super-sized labels to containers will be highly impractical if not impossible in day to day management scenarios.

In summary, this proposed requirement offers no benefits for the management of hazardous waste containers, and is contrary to EPA's past and future efforts to offer burden reduction initiatives to the regulated community. (0259)
EPA Response: The Agency directs the commenter to our response to Commenter 0128. We believe that response is also applicable to the concerns raised by this commenter. 
Comment: In this section, EPA is proposing to require SQGs and LQGs to mark their containers with EPA hazardous waste numbers/codes prior to transporting their hazardous waste offsite for management. SQGs and LQGs would have to define (via marking and labeling) contents and hazards present. [Footnote 19: 80 Fed. Reg. at 57949.] EPA asserts that this provision should not increase burden on generators as it "reaffirms commonly used waste management practices." HSC 2012 exempts (1910.1200 (b)(6)(i)) hazardous waste- when that waste is subject to regulations issued by EPA. Therefore, EPA's assumption that its proposal would not increase the regulatory burden is incorrect because most chemical manufacturers would not be labeling their waste according to HCS 2012. ACA maintains that since this is not a required practice, this would increase the regulatory burden on companies that do not require their facilities to do this, nor does this proposal have any benefits to the environment.

ACA is concerned with requiring SQGs and LQGs to mark their containers with EPA hazardous waste numbers, as some of its members' sites use preprinted labels provided by waste vendors that have the codes already marked on the label. This would be an additional burden to other sites that don't mark waste codes on the labels without any benefits, especially since waste codes are already required to be entered on manifests. In addition, since the SAA is required to be located at or near the point of generation, employees using or around the containers would normally be working with the materials contained within, so additional labeling would not be useful. Thus, they would already understand the hazards associated with this material. ACA is also concerned that labeling containers in satellite areas is somewhat premature in that the contents and hazards of the waste may change over time as additional waste is added to the container, the generator would potentially have to change the label over time, or use multiple containers. (0262)
EPA Response: The Agency directs the commenter to our response to Commenter 0128. We believe that response is also applicable to the concerns raised by this commenter. 
Comment: - 262.32(c): adds a new requirement for marking the EPA hazardous waste codes on shipments. This information is already on the manifests. Requiring this on the containers when they already are subject to DOT labeling requirements is unnecessary and is yet another new way that a generator can inadvertently be pushed into getting a RCRA permit as a punishment for a noncompliance with this requirement; (0263)
EPA Response: The Agency disagrees with the above comment and directs them to our response to Commenter 0128.We believe that response is also applicable to the concerns raised by this commenter. 

Section 5.1.2 - Labelling containers with "Hazardous Waste" and other words to identify the contents


Comment: This would mean that some class 9 material with generic names only is allowed as long as the EPA hazardous waste number is included. This would be inconsistent with EPA's stated desire to require marking that provides "an indication of the hazards of the contents of the container..." 262.14 (a)(4)(viii)(B)(3). This is an example where the DOT shipping name ending in N.O.S. may not provide indication as to the contents of the waste.
Contents should be identified regardless of the mode used to achieve this objective. (0068)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well. 

Comment: Requiring both the words "Hazardous Waste" AND other words describing the contents. If used in the Webster's Dictionary sense of the word "hazardous" may have some utility in alerting people to the presence of a possible danger. If used in a regulatory sense it provides little useful information and presupposes that a waste determination has been made. (0097)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well. 
Comment: Also, while chemical names and classes of chemicals are meaningful to some with specialized training in chemistry, they provide little additional information (and therefore protection) to first responders or shop personnel who generate the waste. "Hazardous Waste" marking is sufficient. (0106)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well. 
Comment: 5. Section VIII. Proposed Revisions to 40 CFR Part 262 -- Standards Applicable to Generators of Hazardous Waste - Modifications to Management of Containers, Tanks, Drip Pads, and Containment Buildings ( and (3) and 40 CFR 262.34(a)(1))
NJDEP supports SQGs and LQGs accumulating hazardous waste in containers mark their containers with both the words ``Hazardous Waste'' and other words that identify the contents of the containers and an indication of the hazards of the contents of the containers. (0108)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: Requiring the words "Hazardous Waste" will create confusion for generators, inspectors, emergency response personnel, and others because the only feasible option in SAAs typical of university laboratories will be to advise SAA staff to label all waste containers as hazardous waste. (0121)

EPA Response: The Agency disagrees with this comment. This requirement has existed for over thirty years and is a clear method of making workers, emergency responders, etc. of the containers contents. 
Comment: FR Page: 57949  -  57950
Citation: 40 CFR 262.16(b)(6)
40 CFR 262.16(a)(5)
40 CFR 262.34
Topic: Modifications to Management of Containers, Tanks, Drip Pads, and Containment Buildings (VIII.F.1)
Comment: WRPS and BNI are not in favor of this proposed change. Rather, BNI and WRPS are in favor of a change to list the HW and Major Risk on the container and not require a full listing of the contents. 
BNI-WTP is not in favor of the proposed change. BNI-WTP agree additional marking on waste accumulation containers are useful at all levels of waste management and emergency response. The proposed change requires three markings/labels: (1) HW, AND (2) contents identification, AND (3) hazard/risk. This may be a little overkill. Suggest requiring at least two of the three: (1) HW AND (2) contents identification OR hazard/risk label (but not both). For accumulation, the container contents and hazard or risk generally provide the same information (e.g., acid and corrosive). This alternative is similar to the existing State of Washington rule (WAC 173-303-200(1)(d)). (0123)
EPA Response: The Agency has modified its proposed rule. In the final rule SQGs and LQGs will not be required to mark the contents of their containers, although we strongly recommend generators maintain records identifying the contents of the containers as a best management practice. However, SQGs and LQGs will continue to mark or label their containers with the words "Hazardous Waste." They also must mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
The Agency also directs the commenter to 40 CFR 262.32 to understand the requirements for marking their containers with the applicable RCRA waste codes. 
Comment: WRPS is not in favor of the proposed change regarding marking accumulated hazardous waste containers with the words "Hazardous Waste" and other words that identify the contents of the containers for a third party as it would require time and money expenditure to develop and implement a consistent approach for this additional marking and labeling requirement.
WRPS requests the addition of text to the proposed change regarding marking accumulated hazardous waste containers with the words "Hazardous Waste" and other words that identify the contents of the containers for a third party to exempt small-scale satellite accumulation of laboratory waste or to allow for a labeling alternative that makes reference to the process that generated such laboratory waste. Laboratories often generate chemically-complex analytical residues as hazardous waste that may consist of tens of different chemicals. Labeling the names of all these chemicals on a container of waste at a laboratory scale is not practical due to label space constraints. Similarly, labeling laboratory waste with the type of class of chemical is not as straightforward as it might be for a common industrial process. Analytical residues are often complex, multifaceted, mixtures that can be cumbersome to place into a chemical category that would provide meaningful information to an emergency responder. Using the proper DOT shipping name for small containers of SAA laboratory bench waste is also not practical because these items will eventually be lab-packed into shipping containers and the DOT shipping name will depend on the contents. Assigning shipping names to items that will ultimately be lab-packed would be extremely labor intensive. 
WRPS requests the addition of text to the proposed change regarding labeling containers to indicate the hazards of contained waste to require that only the HW and major risk of the contained waste be addressed on the label. (0123)
EPA Response: The Agency believes the response to this commenter's previous comment also responds to this comment as well. 
Comment: The agency is proposing fairly significant, if uncomplicated, changes to labeling requirements for hazardous waste containers and tanks. Current regulations require only that SQGs and LQGs label hazardous waste containers and tanks as "Hazardous Waste." The accumulation start date and other shipping information must also be labeled in preparation for off-site transportation. 

EPA is proposing that additional information be included on hazardous waste containers. Specifically, "the [a]gency is proposing that SQGs and LQGs accumulating hazardous waste in containers mark their containers with both the words `Hazardous Waste' and other words that identify the contents of the containers that a third party, such as an emergency responder, co-worker unfamiliar with the material, or even the general public may recognize." 

The labeling options proposed for generators include, "other words that identify the contents of the container [such as] the name of the chemical(s), such as `acetone' or `methylene dichloride'; or the type or class of chemical, such as `organic solvents' or `halogenated organic solvents.' Another option for complying with this provision is to use the proper shipping name and technical name markings used to comply with DOT requirements at 49 CFR part 172 subpart D." [Emphasis added].

IME does not oppose the proposed enhanced labeling requirements although the requirements do impose an additional burden on generators. That said, if additional requirements would improve hazard identification, we support giving generators options to accomplish this strengthened communication. In particular, we support the option of allowing generators to use labeling/marking consistent with DOT requirements. According to the proposal, generators "may choose [among other things] to use an appropriate DOT proper shipping name found on the hazardous materials table at 49 CFR 172.101 to identify the contents of the container while it is accumulating onsite." EPA is correct in observing that this option provides a means for the generator to "fulfill EPA and DOT requirements simultaneously . . . ." 

The agency also is "requesting comment on examples of when the DOT shipping name would not meet EPA's intent of `identifying the contents of the container' and suggestions for addressing this situation. EPA notes that additional pre-transport requirements, other than the DOT shipping name, apply when shipping hazardous waste off-site. We are not proposing to change EPA's existing requirements for pre-transport requirements that are currently found in §§ 262.30 through 262.33." (0126)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well. 
Comment: Since a DOT marking option is included in both in the first and second labeling requirements, and the name of the chemical/chemical class provides little additional information to most observers, we suggest that the first proposed labeling requirement be eliminated in the final rule, and only the second labeling requirement be retained. This approach provides the hazard warning that is desired, and eliminates an unwieldy rule text that will confuse readers who must carefully parse the multiple or's and and's to determine what the requirement is. (0133)


EPA Response: The Agency agrees with Boeing. The Agency believes the response discussed at the beginning of this section also responds to this commenter as well. 
Comment: H. ETC Supports Improved Marking and Labeling of Containers, Tanks, Drip Pads, and Containment Buildings

ETC supports EPA's proposal to require LQGs and SQGs to mark containers with words that identify the contents of the containers and an indication of the hazards of the container's contents. 80 FR 57949. Examples of words that identify the contents are the names of chemicals (e.g., "acetone"), the type or class of chemical (e.g., "organic solvents"), or the DOT shipping name.

We recommend that EPA make clear in the final rule that generators may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge"). A common name often distinguishes materials by describing the physical state (e.g., "process line floor sweepings"), process location (e.g., "line 3 paint solids"), or generator-specific nomenclature (e.g., trade names). A generator should have broad discretion to use words that are appropriate for its facility and employees. (0134)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well. 
Comment: Instead of supporting the objectives of the storage prohibition, it sounds like you are merely mimicking the rationale provided for generators which doesn't justify the revision to 40 CFR 268.50. (0156)


EPA Response: The Agency disagrees with the commenter. With the new requirements, the Agency is trying to promote consistency in container marking and labeling throughout the cradle to grave management of hazardous waste. Dating of the container for supporting the objectives of the storage prohibition is already required and will remain.
Comment: Labeling of Containers and Tanks

The Agency is proposing modifications to strengthen the labeling and marking requirements for SQGs and LQGs by requiring them to label containers with additional information for first responders or subsequent handlers beyond the wording "Hazardous Waste." EPA suggests a variety of information such as chemical name, technical name, or Department of Transportation (DOT) shipping name, along with requiring an indication of the waste's characteristic hazards. While the DOT information for most hazardous materials will satisfy this requirement, WM TSDFs often receive lab packs, which do not require technical names in conjunction with the DOT shipping name. Instead, generators affix a packing slip to the container with information about the contents. We believe this should meet the purpose of the new requirements, but suggest the Agency offer a clarification. (0159)
EPA Response: The Agency agrees, and in keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container.(See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Comment: Preamble Section VIII.F.1. CT DEEP supports EPA's proposal to require that generators mark their containers with, in addition to the currently required words "Hazardous Waste," a description of the contents of the container and information identifying the potential hazards of the waste. CT DEEP agrees with EPA that this additional marking will enhance the safety of on-site personnel, CT DEEP inspectors, emergency responders, and the transporters and TSDFs that the containers are shipped to. CT DEEP notes that the requirement to mark containers with a description of the contents is already a requirement in Connecticut's hazardous waste regulations and has proven very successful in improving the identification of waste containers. (0178)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well. 
Comment: In particular, we support the option [Footnote 19: The use of DOT information would be one option available to generators and would not be mandatory.] of allowing generators to use labeling/marking consistent with DOT requirements. According to the proposal, generators "may choose [among other things] to use an appropriate DOT proper shipping name found on the hazardous materials table at 49 CFR 172.101 to identify the contents of the container while it is accumulating onsite." EPA is correct in observing that this option provides a means for the generator to "fulfill EPA and DOT requirements simultaneously . . . ." [Footnote 20: A similar proposal applies to satellite accumulation areas.] (0188)


EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: The agency also is "requesting comment on examples of when the DOT shipping name would not meet EPA's intent of `identifying the contents of the container' and suggestions for addressing this situation. EPA notes that additional pre-transport requirements, other than the DOT shipping name, apply when shipping hazardous waste off-site. We are not proposing to change EPA's existing requirements for pre-transport requirements that are currently found in §§ 262.30 through 262.33." (0188)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: We urge EPA to consider this option rather than the proposed requirement:

(5) A generator must mark its container with the following:

(i) The words "Hazardous Waste," and

(ii) Other words that identify the contents of the containers (examples may include, but are not limited to the name of the chemical(s), such as "acetone" or "methylene dichloride"; or the type or class of chemical, such as "organic solvents" or "halogenated organic solvents" or, as applicable, the proper shipping name and technical name markings used to comply with Department of Transportation requirements at 49 CFR part 172 subpart D)[DELETE TEXT: ; and].

[DELETE TEXT: 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); a hazard class label consistent with the Department of Transportation requirements at 49 CFR part 172 subpart E (label consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1920.2000; a chemical hazard label consistent with the National Fire Protection Association code 704; or a hazard pictogram consistent with the United Nations' Globally Harmonized System; or any other making or labeling commonly used nationwide in commerce that identifies the nature of the hazards associated with the contents of the waste accumulation unit).] (0190)
EPA Response: The Agency has taken a different approach.See Agency comment at introduction to this section.
Comment: Topic: Proposed regulation at §262 Subpart C: Pre-Transport Requirements Applicable to Small and Large Quantity Generators -§262.15(a)(5)(iii); §262.16(b)(6) and §262.17(a)(5) Marking.

Comment: The proposed rule requires SQGs and LQGs to mark containers with: 1) the words "Hazardous Waste"; and 2) other words that identify the contents of the containers; and 3) an indication of the hazards of the contents. SD agrees with maintaining the requirement to mark the words "Hazardous Waste" and believes including a descriptive word(s) regarding the contents is acceptable. The state is not in favor of adding the third marking requirement to include a hazard notation. (0195)
EPA Response: The Agency has taken a different approach. See Agency comment at introduction to this section.
Comment: One State believes the change to the marking requirements for SAA containers to include the use of the words "hazardous waste" is commendable. The State believes the existing requirement at §262.34(c)(1)(ii) for the use of the words "hazardous waste" or other words that identify the contents has resulted in confusion for generators, inconsistent communication of container contents for emergency responders and regulatory inspectors, and potential for noncompliance for generators once the container moves to a central accumulation area. Consistent marking across all accumulation area containers is encouraged. (0217)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: Section VIII.F.1 (Page 57949): EPA is proposing that generators mark their containers of hazardous waste with the words "Hazardous Waste" and with other words that identify the contents of the containers (emphasis added). Most States support this proposal. (0217)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: Pages 57949-50: 
F. Modifications to Management of Containers, Tanks, Drip Pads, and Containment Buildings (40 CFR 262.34(a)(2) and(3) and 40 CFR 262.34(a)(1))
1. Container Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3))

DC strongly supports requiring the Generator to mark containers of Hazardous Waste with words that "a third party, such as an emergency responder, co-worker unfamiliar with the material, or even the general public may recognize" and also mark the hazards associated with the contents. We feel this information will be invaluable to emergency responders and may help allay concerns from members of the general public. We don't believe that this will be a significant additional burden on the Generator. We expect it will reduce errors at the time of shipping. (0248)


EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: 2. EPA is requesting comment on examples of when the Department of Transportation (DOT) shipping name would not meet EPA's intent of "identifying the contents of the container" and suggestions for addressing this situation. 80 FR 57,931.

CRWI believes that the proper DOT name even with N.O.S. (not otherwise specified) is adequate. DOT allows exceptions to the N.O.S. rule so that not every waste container is required to have the technical names provided (e.g., lab packs). In addition, Large Quantity Generators (LQGs) set up a profile with the facility where the waste is being sent. This profile also helps identify the contents of the container. (0255)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: EPA's proposed requirement that generators add additional information to the label of waste consumer products to identify their contents is unnecessary. Pursuant to strict packaging and labeling laws for pharmaceuticals and other consumer goods, these products are already labeled with their contents and/or ingredients. See e.g., 21 U.S.C. § 343, 352, 362 (FDA labeling requirements for food, drugs and devices, and cosmetics under the Federal Food, Drug, and Cosmetic Act); 15 U.S.C. § 1451 et seq. (the Fair Packaging and Labeling Act); 15 U.S.C. § 1261 et seq. (labeling requirements for products containing hazardous substances under the Federal Hazardous Substances Act). Thus, there is no need for another label identifying the contents of the package. Additionally, given the huge variety of different consumer products and numerous and diverse industry members, it would be extremely difficult to develop and use common, consistent terminology. Finally, retailers and reverse distributors often combine different compatible consumer products into a single container. Developing a term or phrase that would adequately and accurately describe all of the different items in the container would be challenging and, as a result, confusing to those reading the labels. (0260)


EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: - 262.17(a)(6) adds significant additional labeling requirements in addition to "Hazardous Waste." When DOT labeling is already required for waste shipments, USEPA need not impose essentially redundant new requirements on generators that provide yet more ways to receive the TSD-requirements punishment if they have any noncompliance; (0263)

EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: 40 CFR 262.17 (ii) (5)(B) please consider clarifying labeling requirements to allow a trade name to be used to indicate the chemical constituents on the waste label as long as this is the most descriptive method to identify the waste and there is not a more accurate technical name as listed in the NIOSH pocket guide to chemical hazards or other similar guide. (0280)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.
Comment: Also, the proposal discusses the use of technical name as required 49 CFR 172.301(b) for shipping name ending in N.O.S. DOT " lab pack" 49 CFR 173.12 does not, but Virginia Tech believes Emergency Response Guidebook and hazmat UN IDs provides enough information to allow for a safe hazmat incident response. (0284)
EPA Response: See Agency comment at introduction to this section. The Agency believes that comment is responsive to the above comments as well.

Section 5.1.3 - Labelling containers with an indication of the hazards of the contents
 
Comment: UNL is supportive of the proposed conditions as written by the Agency, with the exception of requiring an indication of the hazards of the contents (proposed 262.14 (a)(4)(viii)(B)(3)). UNL also takes exception to this labeling requirement for all generator categories and waste locations (e.g., satellite or central accumulation areas) because this additional information is unnecessary and redundant. (0121)
EPA Response: The Agency disagrees with the commenter. The proposed change to have generators identify the hazards of the containers contents is designed to alert workers, emergency responders, and others to the potential hazards posed by the contents of a container. Identifying the hazard increases awareness to workers and others who might come into contact with the hazardous waste container and reduces potential risks to human health and the environment from container mismanagement. 
EPA reasoned that the pre-transport requirements of part 262 subpart C already require hazardous waste generators to comply with the DOT labeling/marking requirements of 49 CFR part 172. By requiring generators to include information on container labels while on site, the Agency proposed that generators perform a task that is already required when preparing the container prior to transporting the hazardous waste off site for subsequent waste management. Because, in most cases the hazardous waste will be shipped off site and thus be subject to DOT regulations, we proposed that SQGs and LQGs could use the DOT hazard class labels to comply with the new labeling and marking regulation for containers in SAAs. However, we proposed several alternatives to using DOT hazard labels (as noted above) from which generators could choose to indicate the hazards of the container.

Comment: It is infeasible to use RCRA codes or RCRA characteristics (i.e., ignitable, corrosive, reactive, toxic) for the same reason. In some cases, RCRA codes or characteristics won't be known until after a waste is generated and it can be tested or generator knowledge applied, which makes labeling with RCRA codes during accumulation infeasible. Descriptors such as "toxic" are non-specific and have different meanings, depending on the reference. It is also not clear how many descriptors would be necessary to adequately describe the hazards of waste in a container. For example, the GHS system recognizes 16 classes of physical hazards, 12 classes of health hazards, and 2 classes of environmental hazards. It is conceivable and likely that multiple classes may pertain to any given waste thereby creating a situation where an entity could be deemed as non-compliant if only one of several possible hazards were missing from the label. In the case of by-products or mixed solutions, GHS information is not likely to be available to facilitate labeling. (0121)

EPA Response: Again, we disagree with this commenter. We believe we have answered the second part of this comment with our comment above. Regarding the comment about the use of RCRA waste codes as being infeasible, we agree that in some instances RCRA waste codes or characteristics will not be known until sometime after the waste has been generated, but generators must still start the waste identification at the point of generation. Only when the waste is ready to be shipped off-site must the RCRA waste codes be placed on the container or alternatively, incorporated into an electronic bar coding system if that is the normal course of business. 
Comment: EPA is also proposing to enhance the labeling of containers in CAAs to include a hazard indication. Specifically, the NPRM states as follows:

The second modification we are proposing for labeling containers in central accumulation areas is to add a provision that SQGs and LQGs mark and label their containers with an indication of the hazards of the contents of the containers. SQGs and LQGs will have flexibility in how to comply with this new provision. That is, generators can indicate the hazards of the contents of the container using any of several established methods, including, but not limited to an EPA hazardous waste characteristic(s) (ignitable, corrosive, reactive or toxic); a hazard class label consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling); a label consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard label consistent with NFPA code 704; or a hazard pictogram consistent with the United Nations' Global Harmonized System (GHS). Generators also may use any other marking or labeling commonly used nationwide in commerce that would alert workers and emergency responders to the nature of the hazards associated with the contents of the containers.

Again, while the additional labeling requirements will increase the regulatory burden of generators, we support, conceptually, regulatory requirements that are designed to accurately communicate hazards and ensure worker and emergency responder safety. As previously noted, we agree with EPA's approach in providing several options to SQGs and LQGs in meeting the proposed requirement. (0126)
EPA Response: The Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 

Comment: 4) DOT marking and labeling should be an option, not a requirement, for wastes that are not shipped over public right of ways to off-site locations. The generator should be able to choose between DOT, OHSA, GHS, or other marking and labeling standards for conveying the characteristics of the stored waste. (0131)


EPA Response: The Agency agrees with this comment and provides for such flexibility in the final rule. 
Comment: 3. Container Labeling Requirements for All Generators and Transfer Facilities. §262.14(a)(4)(viii)(B); §262.15(a)(5); §262.16(b)(6); §262.17(a)(5); §262.232(a)(4)(i) and (b)(4)(i); §263.12(b).

Recognizing that the words "Hazardous Waste" during pre-transport storage may not provide sufficient information for first responders and site personnel, some states have required additional container marking requirements. For example, in Missouri's newly revised hazardous waste rules, containers in pre-transport storage must either label the container in accordance with DOT hazmat shipping labels or with a label indicating that the waste is classified as Ignitable, Toxic, Corrosive, and/or Reactive. The latter option was developed after an intensive stakeholder process that determined that the DOT Proper Shipping Name can be unstable, because it may change several times as additional compatible wastes are added to a container (particularly for lab packs). Because of this, DOT marking is not an efficient way to convey (DOT-correct) hazard information for some waste containers.

The EPA proposal addresses the same hazard communication concern as the Missouri rule, but complicates the labeling requirement by requiring 1) DOT markings or the name of the chemical/chemical class and 2) an indication of the hazard, including, but not limited to Ignitable, Corrosive, Reactive, Toxic; or DOT markings; or OSHA Hazard Communication label; or NFPA 704 markings; or a Globally Harmonized System pictogram; or other commonly used marking that identifies the hazard. While the second labeling requirement is quite flexible, it is paired with the first labeling scheme, which suffers the following shortcomings. DOT markings, particularly Proper Shipping Name, may have to be changed several times during the storage period if additional compatible wastes are added. Furthermore, the name of the chemical or chemical class may be meaningful to persons well trained in chemistry, but provides little additional information to many first responders or to facility personnel who know the waste by its trade name or function. (0133)
EPA Response: The Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 

Comment: H. ETC Supports Improved Marking and Labeling of Containers, Tanks, Drip Pads, and Containment Buildings

ETC supports EPA's proposal to require LQGs and SQGs to mark containers with words that identify the contents of the containers and an indication of the hazards of the container's contents. 80 FR 57949. Examples of words that identify the contents are the names of chemicals (e.g., "acetone"), the type or class of chemical (e.g., "organic solvents"), or the DOT shipping name.

We recommend that EPA make clear in the final rule that generators may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge"). A common name often distinguishes materials by describing the physical state (e.g., "process line floor sweepings"), process location (e.g., "line 3 paint solids"), or generator-specific nomenclature (e.g., trade names). A generator should have broad discretion to use words that are appropriate for its facility and employees. (0134)
EPA Response: The Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. Therefore, generators, if they so choose, may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge"). 
Comment: In particular, the requirement to mark containers with an indication of the hazards of the contents will require that the person marking the container (student, staff, vendor, or EHS personnel) verify the precise hazards of each container and determine the most appropriate marking(s). It is not uncommon for waste contents to have multiple hazards. Also, given the frequent change in the population of students and staff, the training to meet this requirement will be difficult, if not onerous, to deliver and costly to implement every year. (0166)

EPA Response: The Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
Similarly, the Agency struggles to understand why every student or staff is not trained on the potential hazards they may encounter with the chemicals they use and wastes they generate in the laboratory. The Agency has to believe this training is already occurring as a basic safety measure. 
Comment: We recommend that EPA consider alternative, less burdensome methods (such as door' signs) to achieve the objective of informing employees, emergency personnel, and inspectors of hazards posed by individual waste containers at the point of generation. Please consider the following alternatives:

:: When a container is labeled with its contents, employees, transporters, downstream handlers, emergency personnel, and inspectors can easily use any number of smartphone apps to look up the information most relevant to them. Online information will be far more valuable to the user than the hazard wording chosen by the person marking the container.

:: In many years of working with emergency responders, it is our experience that marking the hazards of each container is confusing, overwhelming and of little practical use to them. It is much more important that they have general information about the room or area's hazards. Universities convey this information via door signs.

:: Once hazardous wastes are bulked or lab packed (e.g., in the CAA, during transportation, at the TSDF, etc.), Department of Transportation hazard labeling is required on the outer container. (0166)
EPA Response: For the purposes of RCRA, EPA does not believe that door signs are an appropriate method for conveying the hazards posed by hazardous waste in containers in a laboratory because a door sign will not be able to accompany the waste during its cradle to grave management. However, door signs could be used in addition to labeling the containers of hazardous waste.
Regarding the second bullet, identifying the hazards on a very small container, in keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as labpacks, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container.(See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Comment: KULC-EHS is supportive of the proposed conditions as written by the Agency, with the exception of requiring an indication of the hazards of the contents (proposed 262.14 (a)(4)(viii)(B)(3)). KULC-EHS also takes exception to this labeling requirement for all generator categories and waste locations (e.g., satellite or central accumulation areas) because this additional information is unnecessary and redundant. (0183)
EPA Response: The Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
The Agency believes workers in satellite accumulation and central accumulation areas need to be aware of the hazards they are dealing with on a daily basis. Therefore, the Agency disagrees with the comment that this information is unnecessary and redundant. 
Comment: It is also not clear how many descriptors would be necessary to adequately describe the hazards of waste in a container. For example, the GHS system recognizes 16 classes of physical hazards, 12 classes of health hazards, and 2 classes of environmental hazards. It is conceivable and likely that multiple classes may pertain to any given waste thereby creating a situation where an entity could be deemed as non-compliant if only one of several possible hazards were missing from the label. In the case of by-products or mixed solutions, GHS information is not likely to be available to facilitate labeling. (0183)
EPA Response: In response, the Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 

Comment: Although the intent to require labeling with additional hazard information can be beneficial, the number of potential options may create additional confusion for regulators, the regulated community and emergency responders. Providing a standardized list of hazards will eliminate confusion for all parties. For example, the standardized list could require including one or more of the following words on the label; Ignitable, Corrosive, Reactive, Toxic, Water Reactive, Shock Sensitive, Spontaneously Combustible and Explosive. (0187)

EPA Response: The Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 
However, as a matter of practicality, it would benefit many generators to consider the use of DOT hazard communication, since such a method would not only satisfy EPA's requirement, but it may also satisfy DOT requirements when the wastes are shipped off site to a RCRA-designated facility, such as an interim status or permitted TSDF. It is important to note that if generators choose to identify the hazards of the contents of their containers using the DOT, OSHA or NFPA labeling methods, those methods must be used appropriately. Furthermore, if a method other than DOT hazard communication is used while the waste is accumulating on site, when the waste is shipped off site, generators and transporters must ensure that those markings and labels are located away from and do not obscure DOT marking and labeling.
Similarly, a number of commenters also had the misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.
Comment: The second modification we are proposing for labeling containers in central accumulation areas is to add a provision that SQGs and LQGs mark and label their containers with an indication of the hazards of the contents of the containers. SQGs and LQGs will have flexibility in how to comply with this new provision. That is, generators can indicate the hazards of the contents of the container using any of several established methods, including, but not limited to an EPA hazardous waste characteristic(s) (ignitable, corrosive, reactive or toxic); a hazard class label consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling); a label consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard label consistent with NFPA code 704; or a hazard pictogram consistent with the United Nations' Global Harmonized System (GHS). Generators also may use any other marking or labeling commonly used nationwide in commerce that would alert workers and emergency responders to the nature of the hazards associated with the contents of the containers. (0188)

EPA Response: The Agency believes this is not a comment but a statement from the preamble of the proposed rule.
Comment: We urge EPA to consider this option rather than the proposed requirement:

(5) A generator must mark its container with the following:

(i) The words "Hazardous Waste," and

(ii) Other words that identify the contents of the containers (examples may include, but are not limited to the name of the chemical(s), such as "acetone" or "methylene dichloride"; or the type or class of chemical, such as "organic solvents" or "halogenated organic solvents" or, as applicable, the proper shipping name and technical name markings used to comply with Department of Transportation requirements at 49 CFR part 172 subpart D)[DELETE TEXT: ; and].

[DELETE TEXT: 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); a hazard class label consistent with the Department of Transportation requirements at 49 CFR part 172 subpart E (label consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1920.2000; a chemical hazard label consistent with the National Fire Protection Association code 704; or a hazard pictogram consistent with the United Nations' Globally Harmonized System; or any other making or labeling commonly used nationwide in commerce that identifies the nature of the hazards associated with the contents of the waste accumulation unit).] (0190)
EPA Response: The Agency disagrees and has taken a different approach in order to improve the risk communications associated with the generation and accumulation of hazardous wastes on-site. SQGs and LQGs will continue to mark or label their containers with the words "Hazardous Waste", the date waste first started to be accumulated in a CAA and an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
However, as a matter of practicality, it would benefit many generators to consider the use of DOT hazard communication, since such a method would not only satisfy EPA's requirement, but it may also satisfy DOT requirements when the wastes are shipped off site to a RCRA-designated facility, such as an interim status or permitted TSDF. It is important to note that if generators choose to identify the hazards of the contents of their containers using the DOT, OSHA or NFPA labeling methods, those methods must be used appropriately. Furthermore, if a method other than DOT hazard communication is used while the waste is accumulating on site, when the waste is shipped off site, generators and transporters must ensure that those markings and labels are located away from and do not obscure DOT marking and labeling.
Similarly, a number of commenters also had the misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.

Comment: From an enforcement standpoint, although hazardous waste inspectors must understand and distinguish use of the hazardous waste characteristics of ignitability, corrosivity, reactivity, toxicity and acute toxicity, the same is not true regarding appropriate hazard class notations established by the Department of Transportation, the Occupational Safety and Health Administration, National Fire Protection Association, the United Nations' Globally Harmonized System or other non-EPA agency designations. Misapplication of a hazard class represents a potential violation of the hazardous waste rules. If EPA retains this requirement, SD advocates limiting the hazard labeling requirement to terms defined by and associated with hazardous wastes as codified under the hazardous waste regulations (i.e. acute hazardous waste; toxic; ignitable, reactive, corrosive). From a practical standpoint, the words "Hazardous Waste" on a yellow (or white) label is a highly visible information mark for an emergency responder to see upon entering a site, especially if multiple drums need to be assessed in a matter of seconds. Adding a third mark does not seem practical. (0195)
EPA Response: The Agency disagrees with this commenter. Without knowing why the waste is hazardous, anyone potentially exposed to the waste will not know the potential hazards of the waste. Workers, emergency responders, etc. need to be aware of the hazards they are dealing with or may come in contact with.
Comment: One State believes the change to the marking requirements for SAA containers to include the use of the words "hazardous waste" is commendable. The State believes the existing requirement at §262.34(c)(1)(ii) for the use of the words "hazardous waste" or other words that identify the contents has resulted in confusion for generators, inconsistent communication of container contents for emergency responders and regulatory inspectors, and potential for noncompliance for generators once the container moves to a central accumulation area. Consistent marking across all accumulation area containers is encouraged. (0217)
EPA Response: The Agency appreciates the comments of the state above. The Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Some commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. Therefore, generators, if they so choose, may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge"). 
Comment: The department supports additional labeling of containers and tanks to identify the hazards of the contents. Additional information about the chemical would help to prevent potential mixing of incompatible wastes and associated fires and other exposures. However, in regard to hazard labeling in (6)(C), on page 57997 of the proposed rule, the department believes that too many options can lead to confusion and a greater chance of accidents. Considering that the goal is for facility managers and emergency responders to quickly and accurately identify a container's contents and hazards, it seems that allowing OSHA, NFPA, GHS or "any other marking or labeling used in commerce" as the rule proposes, would be less familiar and useful to hazardous waste managers, inspectors and responders. OSHA, NFPA and GHS convey hazards primarily by use of symbols, colors and numbers, which would require additional training of hazardous waste managers and more interpretation to ascertain the hazards. We also recognized that OSHA has aligned its labels with GHS but, in the proposed rule they are listed separately. Although DOT labels also convey hazards by symbols, colors and numbers, they are preferred as being more familiar to hazardous waste managers since they are required for hazardous waste transportation. For storage, it seems that the DOT label, with additional words as proposed, would be a good combination. We recognize that the OSHA/GHS was included as a new standard, roughly equivalent to DOT, and for this reason we could support this addition; but, we are less assured that NFPA or "any other marking or labeling used in commerce" would achieve the goals.

While OSHA or NFPA information may be useful to emergency responders, it is less likely to assist facility managers in making decisions on container management to prevent other storage violations, or in identifying the waste for eventual shipment. The department acknowledges that there is a separate requirement for including words that identify the contents of the container that could alleviate some of these concerns, but the deficiencies in the amount of information conveyed by these other types of labels may not be adequately addressed even with these additional words. Also, because this hazardous waste will in most cases be transported on public highways and because DOT shipping requirements will still apply, we recommend required use of appropriate DOT labels or at the least, the chemical name along with the hazards of the container during onsite storage. (0223)


EPA Response: The Agency is in pretty much agreement with this commenter. First, the Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 
Second, EPA reasoned that the pre-transport requirements of part 262 subpart C already require hazardous waste generators to comply with the DOT labeling/marking requirements of 49 CFR part 172. By requiring generators to include information on container labels while on site, the Agency proposed that generators perform a task that is already required when preparing the container prior to transporting the hazardous waste off site for subsequent waste management. Because, in most cases the hazardous waste will be shipped off site and thus be subject to DOT regulations, we proposed that SQGs and LQGs could use the DOT hazard class labels to comply with the new labeling and marking regulation for containers in SAAs. However, we proposed several alternatives to using DOT hazard labels (as noted above) from which generators could choose to indicate the hazards of the container.

Comment: In particular, the requirement to mark containers with an indication of the hazards of the contents will require that the person marking the container (student, staff, vendor, or EHS personnel) verify the precise hazards of each container and determine the most appropriate marking(s). It is not uncommon for waste contents to have multiple hazards. (0228)
EPA Response: The Agency believes it is the responsibility of the generator to ensure its workers, students, researchers, etc. are aware of the potential hazards they are dealing with in the workplace or laboratory. To the extent the waste has multiple hazards, the workers etc, should be made aware of them for their own protection. 
The Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 
However, as a matter of practicality, it would benefit many generators to consider the use of DOT hazard communication, since such a method would not only satisfy EPA's requirement, but it may also satisfy DOT requirements when the wastes are shipped off site to a RCRA-designated facility, such as an interim status or permitted TSDF. It is important to note that if generators choose to identify the hazards of the contents of their containers using the DOT, OSHA or NFPA labeling methods, those methods must be used appropriately. Furthermore, if a method other than DOT hazard communication is used while the waste is accumulating on site, when the waste is shipped off site, generators and transporters must ensure that those markings and labels are located away from and do not obscure DOT marking and labeling.
Similarly, a number of commenters also had the misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.

Comment: We recommend that EPA consider alternative, less burdensome methods (such as door signs) to achieve the objective of informing employees, emergency personnel, and inspectors of hazards posed by individual waste containers at the point of generation. Please consider the following alternatives:

:: 'When a container is labeled with its contents, employees, transporters, downstream handlers, emergency personnel, and inspectors can easily use any number of sources to look up the information most relevant to them. Online source information will be far more valuable to the user than the hazard wording chosen by the person marking the container.

:: In many years of working with emergency responders, it is our experience that marking the hazards of each container is confusing, overwhelming and of little practical use to them. It is much more important that they have general information about the room or area's hazards. Universities convey this information via door signs.

:: Once hazardous wastes are bulked or lab-packed (e.g., in the CAA, during transportation, at the TSDF, etc.), Department of Transportation hazard labeling is required on the outer container. (0228)
EPA Response: For the purposes of RCRA, EPA does not believe that door signs are an appropriate method for conveying the hazards posed by hazardous waste in containers in a laboratory because a door sign will not be able to accompany the waste during its cradle to grave management. However, door signs could be used in addition to labeling the containers of hazardous waste.
Comment: The NSC agrees that indicating the hazard contents of containers is important to protect the health and safety of facility workers, emergency responders, and others from potential hazards posed by its contents. However, we feel that EPA should provide more guidance and clarification in strengthening the marking and labeling of containers in SAAs (satellite accumulation areas). 

The rule states, "Other words that identify the contents of the containers (examples may include, but are not limited to the name of the chemical(s), such as ``acetone'' or ``methylene dichloride''; or the type or class of chemical, such as ``organic solvents'' or ``halogenated organic solvents'' or, as applicable, the proper shipping name and technical name markings used to comply with Department of Transportation requirements at 49 CFR part 172 subpart D);"

It would be less confusing, especially for emergency responders, if EPA selected one method for indicating a waste's hazard content, instead of allowing the facility to choose from several possible methods. At the very least, EPA should develop a plain language guidance document, an FAQ, or a small business compliance guide on hazardous waste labeling to help facilities label their waste to be in compliance with the proposed standards. In addition, some workers who come in contact with hazardous waste may not speak English. EPA should clarify what facilities with non-English speaking employees should do to ensure proper handling and worker safety. (0235)
EPA Response: The Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. Therefore, generators, if they so choose, may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge").
Comment: Management of containers, tanks, drip pads and containment buildings

EPA is proposing to require generators to label waste storage containers at central accumulation areas with an indication of the containers' hazardous contents. This proposal also applies to containers at a Satellite Accumulation Area. In addition to this label, EPA is also proposing that containers be marked with the words "Hazardous Waste." According to the proposal, this signage will enable persons coming into contact with the container to understand its possible hazards. Between these two methods for identifying a container with hazardous wastes, marking containers with "Hazardous Waste" is sufficient to effectively communicate the container's hazard, as the information depicted in the hazard labels is not universally understood. The City urges EPA to consider revising the proposal to require that containers with hazardous waste be marked only with the words "Hazardous Waste." (0257)
EPA Response: The Agency disagrees with this commenter. Without knowing why the waste is hazardous, anyone potentially exposed to the waste will not know the potential hazards of the waste. Workers, emergency responders, etc. need to be aware of the hazards they are dealing with or may come in contact with.
Comment: The proposed requirement that generators add hazard information to the labels of consumer product waste is also unnecessary. According to EPA, the proposed modifications "would help increase awareness in the waste management chain, which may in turn prevent improper treatment, transportation, and disposal of hazardous waste." 2015 Economic Assessment at 4-20. However, DOT already regulates consumer products to ensure that, when shipped, these materials do not pose an unreasonable risk to health, safety, and property. The DOT regulations themselves are targeted at ensuring that hazards are clearly and consistently communicated via DOT classification, proper shipping names, marking, labeling, and shipping papers. DOT has already evaluated the risks associated with the management of consumer products and has found its requirements sufficient for communicating hazards to third parties. If the DOT requirements are sufficient for third parties, then they are also sufficient for the reverse distributors, retailers and healthcare facilities that manage these consumer products every day. If EPA insists on incorporating new labeling requirements into its RCRA regulations, it should make clear that labels complying with applicable DOT labeling requirements are sufficient. (0260)

EPA Response: The regulation is clear that generators' compliancewith applicable DOT labeling requirements is sufficient.
Comment: In addition, ACA opposes the additional labeling requirements for LQGs and SQGs, particularly the requirements for LQGs and SQGs to address hazards on their labels when many of the "options" that these generators can choose, including pictograms, would have the potential to cause confusion and conflict with other federally mandated warnings. Companies would incur substantial additional costs and be open to possible enforcement action unless they revaluate and/or change labels, make determinations for how to indicate hazards of the contents of the containers, and now have added daily and weekly recordkeeping for inspections. Additionally, many facilities already have the hazardous waste yellow label and DOT hazard label on their containers at satellite areas, so many of these new requirements are unnecessary. ACA believes these added requirements will burden SQGs and LQGs, and will simply add paperwork without commensurate benefits to health or the environment since these generators are already required to perform inspections.

ACA is concerned that additional labeling requirements -- in particular, indications of the hazards of the containers contents using "any of several established methods" could conflict with DOT and GHS labeling requirements, setting the generator up for additional DOT and OSHA violations. Labeling under HCS 2012 and the GHS is based on a classification system. Adding multiple (potentially unclassified) mixtures into a container could result in a change in a classification which would result in labeling changes. Further, the classifications for mixtures under the GHS is extremely complicated and requires the use of "bridging principles." These calculations are difficult and time consuming. Therefore, ACA objects to EPA allowing manufacturers to rely on HCS 2012 labels to provide hazard information to hazardous waste transporters.

The GHS building blocks are developed by a subcommittee of experts at the United Nations. Currently the subcommittee is considering an amendment to the GHS regarding the use of pictograms that are not a part of a complete label. Although the proposal has not been completed, the subcommittee of experts generally agrees that it would be considered inappropriate you only use GHS pictograms without the complete hazard communication language. Therefore, ACA objects to allowing manufactures from using GHS pictograms has method to convey hazard information to hazardous waste transporters.

If EPA decides to continue with increased labeling requirements, at the very least the Agency should meet with OSHA, DOT and other stakeholders to ensure that the standards do not conflict or cause confusion. (0262)
EPA Response: The Agency disagrees with the above problems this rule will cause, particularly if a generator is already complying with the applicable DOT regulations. All the Agency is asking the generator to do is mark their containers with the applicable DOT marking or label (as one option) when accumulating hazardous wastes on-site to make workers, emergency responders, etc. aware of the potential hazards they are in close proximity to. The Agency is also providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 

However, as a matter of practicality, it would benefit many generators to consider the use of DOT hazard communication, since such a method would not only satisfy EPA's requirement, but it may also satisfy DOT requirements when the wastes are shipped off site to a RCRA-designated facility, such as an interim status or permitted TSDF. It is important to note that if generators choose to identify the hazards of the contents of their containers using the DOT, OSHA or NFPA labeling methods, those methods must be used appropriately. Furthermore, if a method other than DOT hazard communication is used while the waste is accumulating on site, when the waste is shipped off site, generators and transporters must ensure that those markings and labels are located away from and do not obscure DOT marking and labeling.
Similarly, a number of commenters also had the misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.

Comment: Also, as we mentioned before, ACA is concerned that additional labeling requirements to indicate the hazards of the contents of the container, and citing DOT, GHS, and NFPA labels. Adding these new labels could conflict with other federal labeling requirements, setting the generator up for additional violations. ACA once again recommends not adding additional labeling requirements, or in the alternative, requiring that EPA consult with stakeholders and relevant federal agencies before finalizing any regulations with additional labeling requirements. (0262)EPA Response: The Agency disagrees with the above comments. There is no conflict with other federal labeling requirements. The Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). All the Agency is asking the generator to do is mark their containers with the applicable DOT marking or label (as one option) when accumulating hazardous wastes on-site to make workers, emergency responders, etc. aware of the potential hazards they are in close proximity to.

Section 5.1.4 - Other


Comment: Since most hazardous waste generators ship their waste off site for treatment and disposal/recycling, the proposed new labeling requirements may create the negative unintended consequence of SQG/LQG occasionally violating strict DOT labeling and marking regulations. (0106)

EPA Response: The Agency disagrees with this comment. If a generator is using a particular DOT label or marking when shipping their hazardous wastes off-site, the Agency sees no problem in being able to use the same label when accumulating hazardous wastes on-site to make workers, emergency responders, etc. aware of the potential hazards of the wastes. Those hazards should be the same whether accumulated on-site or shipped off-site.
Comment: It is possible a SQG/LQG would place a label on a container and then remove or cover the label before offering the container for transport. But this is labor intensive, since most labels are designed to permanently stick to containers in all kinds of weather conditions. If a generator fails to remove a prohibited label or forgets to cover it up it would violate DOT regulations. (0106)

EPA Response: The Agency does not understand this comment. If a generator is using a particular DOT label or marking when shipping their hazardous wastes off-site, the Agency sees no problem in being able to use the same label when accumulating hazardous wastes on-site to make workers, emergency responders, etc. aware of the potential hazards of the wastes. Those hazards should be the same whether accumulated on-site or shipped off-site. The Agency does not understand why the generator would remove one label and replace it with a new one representing the same hazards. 
Comment: Subpart K, section 262.206(a)(I)(ii) provides an alternative method that would achieve the goals of the revision in a manner much less burdensome and much more likely to be accurate by allowing generators to label the containers with "sufficient information to alert emergency responders to the hazards or the contents of the container." Drake urges EPA to adopt a similar standard under 262.15(a)(5). (0136)

EPA Response: In response to comments, the Agency is providing flexibility in how a generator may mark its containers with the applicable RCRA hazard. The final regulationrequires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). All the Agency is asking the generator to do is mark their containers with the applicable DOT marking or label (as one option) when accumulating hazardous wastes on-site to make workers, emergency responders, etc. aware of the potential hazards they are in close proximity to. 
The Agency also has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. Therefore, generators, if they so choose, may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge").
Comment: Additionally, Heritage requests that these same date marking allowances be extended to containers. The same electronic recordkeeping systems available for tanks are also available for containers, with the same high degree of reliability as compared to manual systems. Heritage also believes that such recordkeeping systems may be even more commonly in use for containers than tanks simply based on the ratio of containers to tanks in the general marketplace. Accommodating date marking flexibility for containers would offer generators even more recordkeeping burden relief than for tanks simply based on the quantity of containers managed by generators. Heritage also notes that within the RCRA program, unlike DOT provisions, tanks and containers primarily differ from one another only with respect to mobility rather than size. In other words, RCRA tanks are stationary/fixed and containers are mobile. For example, the same 5,000 gallon vessel could just as easily be considered a RCRA tank or container following the addition or subtraction of wheels, a floor anchoring system, or fixed piping connections. When considering all these factors, there is not sufficient justification for EPA to restrict the proposed date marking options only to tanks. Finally, if container marking provisions are modified at 40 CFR 262, Heritage requests that EPA implement corresponding changes within the Land Disposal Restrictions requirements at 40 CFR 268.50. (0259)

EPA Response: Generators will be able to use electronic recordkeeping/bar coding systems in the final rule in identifying RCRA waste codes and other information profiling the hazardous wastes. Regarding the last comment concerning corresponding changes within the Land Disposal Restrictions requirements at 40 CFR 268.50 have been made as well.

Section 5.2 - Marking and labeling tanks, drip pads, containment buildings

Comment: A physical marking on the tank should be one of the allowed methods since marking a tank is no more burdensome than marking a container. Using a marking that contains multiple rows reserved for start dates and pickup dates works well in the cases that waste is removed via vacuum and the container is reused for accumulation.
Marking of some hazardous waste tanks is more challenging in particular for tanks involved in a continuous flow process. In this case, using other modes of identification is more suitable than a physical label. (0068)
EPA Response: The Agency agrees with this commenter and has finalized the marking and labeling requirements for tanks to accommodate differences between containers and this type of accumulation unit.
Comment: 25. Regarding modifications to drip pad and containment building marking and labeling for LQGs and SQGs  -  Section VIII. F.3. pages 57951-57952 Colorado does not agree with the extra labeling requirements because it seems an extra burden for generators with little environmental benefit as discussed under container labeling requirements. (0085)

EPA Response: In response to comments, the Agency has modified the labeling requirements for hazardous wastes accumulated on drip pads. A summary is provided at the beginning of this section.
Comment: The EPA is proposing that drip pans for catching spills be labeled and inspected as if they were a tank. Labeling a drip pan as if it did contain hazardous waste even if it does not would provide confusing information. (0089)
EPA Response: In response to comments, the Agency has modified the labeling requirements for hazardous wastes accumulated on drip pads. A summary is provided at the beginning of this section.
Comment: We also support the proposed changes for marking and labeling of tanks, drip pads and containment buildings with "Hazardous Waste" and the accumulation start date so as not to exceed 90 days. 80 FR 57950-53. (0134)


EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of this section. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.
Comment: TWC explains its concerns with labeling drip pads with the words "Hazardous Waste" in Comment B.
B. Requiring Drip Pads to Be Labeled with the Words "Hazardous Waste"

EPA proposes to require that generators label their drip pads "with the words `Hazardous Waste' in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc." See §§ 262.16(b)(6)(ii)(A) (SQGs), 262.17(a)(5)(ii)(A) (LQGs). TWC opposes this proposal because we believe that current labeling standards are sufficient and that this additional labeling provision would be burdensome without providing any additional meaningful benefits.

First, no danger exists of unaware individuals entering a drip pad. Only trained employees are authorized near the drip pad. Generators accumulating hazardous waste on drip pads already are required to have procedures in place to minimize tracking of hazardous waste off the drip pad. See § 265.443(j). The quantity of waste on the drip pad is small, as the pad must be constructed to freely drain to a collection system. Drip pads vary in size and the number of entry points, and this proposed regulation does not provide clear direction on the quantity and size of the "Hazardous Waste" label(s). Furthermore, labeling the entire drip pad as "Hazardous Waste" is inaccurate because not all of the materials on the drip pad are hazardous waste, such as the poles and lumber being treated on the drip pad. Finally, the drums stored on the drip pad that contain hazardous waste and the drum storage area are already labeled. Emergency responders are provided the facility contingency plan identifying the hazardous waste areas.

For these reasons, TWC believes that the current drip pad standards are sufficient. This proposal demonstrates a situation in which EPA, in its effort to make unit-specific regulations more uniform, failed to take into account the unique nature of drip pads as hazardous waste accumulation units. [Footnote 9: EPA shows that uniformity was its goal with this provision when it states, "[B]ecause the risks for accumulating hazardous wastes on drip pads and containment buildings are similar to those accumulating in tanks, and for purposes of consistency and uniformity with the marking and labeling provisions for tanks, the Agency is proposing the same marking and labeling regulatory framework for hazardous wastes accumulated on drip pads and in containment building that it is proposing for tanks." See 80 Fed. Reg. 57,951, col. 2.] The proposed drip pad labeling requirement is burdensome and unclear and would provide no additional benefit. (0164)


EPA Response: In response to these comments, the Agency has modified the proposed rule for hazardous wastes accumulated on drip pads. A summary is provided at the beginning of this section.
Comment: Preamble Section VIII.F.3. CT DEEP supports EPA's proposed clarification of the marking and labeling requirements for LQGs that store hazardous waste on drip pads or in containment buildings. Drip pads are typically used by companies engaged in wood preserving (of which we have only one in Connecticut). Containment buildings are typically used for the management of remediation waste (e.g., contaminated soil), and we have traditionally not seen many of these storage units in Connecticut  -  and those that we have seen have been durational in nature (i.e., operated only for a period of time while they were necessary to complete a remediation project). (0178)

EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of this section. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.
Comment: In this section, EPA also proposes to require SQGs to comply with the same marking and labeling requirements as LQGs for their drip pads and containment buildings. CT DEEP does not support this part of the proposal, since we do not believe it is even appropriate for SQGs to use these types of units. These types of storage units are complicated and require a fairly high level of knowledge and expertise to properly construct and operate.

In fact, SQGs are actually prohibited from storing hazardous waste in drip pads and containment buildings in Connecticut's current hazardous waste regulations for these reasons. See also comment 25 below. (0178)
EPA Response: The Agency disagrees with the above comments. While these type units are complicated, the requirements apply to any SQG that wants to accumulate hazardous wastes in these units in subparts W and DD, respectively. If they desire to do so, its their responsibility to comply with these requirements.
Comment: EPA should understand that it is important to exclude from this enhanced container labeling requirement certain bulk transport containers such as cargo tanks, rail cars, and portable tanks. Similarly, ETC recommends revising the requirements for 40 CFR Part 268.50(a)(2)(i) to allow for any container to optionally comply with 40 CFR Part 268.50(a)(2)(ii) at a TSD. (0181)

EPA Response: Regarding certain bulk transport containers, at 40 CFR 262.32(b), the Agency states, "Before transporting hazardous waste or offering hazardous waste for transportation off site, a generator must mark each container of 119 gallons or less used in such transportation with the following words and information in accordance with the requirements of 49 CFR 172.304:." Therefore, certain bulk transport containers are excluded from the enhanced container labeling requirements. 

As for allowing any containers to optionally comply with 40 CFR § 268.50(a)(2)(ii) at a TSD facility, EPA does not think it is appropriate for TSDs to mark containers as they would tanks, as key pieces of information would be lacking, including the words "Hazardous Waste," waste codes, and an indication of the hazards of the contents.

Comment: Veolia is also supportive of the proposed changes for marking and labeling of tanks, drip pads and containment buildings with "Hazardous Waste" and the accumulation start date so as not to exceed 90 days. (0181)
EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of this section. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.
Comment: 262.34(a)(3) Marking and 262.34(d)(3) Inspection documentation
Support these proposed rules. Local (Santa Clara County, CA) ordinance already requires this level of marking and inspection documentation, and has for 35 years. (0196)


EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of this section. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.
Comment: Section VIII.F.3 (Page 57951): The States that provided comments do not support labeling Drip Pads with the words "Hazardous Waste" in a conspicuous place easily visible. Typically, the treatment solution is used multiple times before it becomes a waste. However, the States do support using inventory logs or records to identify the contents of the drip pad. (0217)

EPA Response: In response to comments, the Agency has modified the marking and labeling requirements for drip pads. The Agency is not finalizing the provision that would require SQGs and LQGs to mark drip pads with the words "Hazardous Waste" in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc. As stated by one commenter, labeling the entire drip pad with the words "Hazardous Waste" is inaccurate because not all of the materials on the drip pad are hazardous waste, such as the poles and lumber being treated on the drip pad. Finally, the drums stored on the drip pad or drum storage area that contain hazardous waste and the drum storage area would already be labeled with those words. 
Comment: Clean Harbors generally supports EPA's proposal to require LQGs and SQGs to mark containers with words that identify the contents of the containers and an indication of the hazards of the container's contents, so long as it is not unduly burdensome for the generator. Use of words that identify the contents such as the names of chemicals (e.g., "acetone"), the type or class of chemical (e.g., "organic solvents"), or the DOT shipping name would be acceptable. We recommend that EPA make clear in the final rule that generators may use the common name of the waste that is familiar to the generator's employees (e.g., "electroplating sludge"). A common name often distinguishes materials by describing the physical state (e.g., "process line floor sweepings"), process location (e.g., "line 3 paint solids"), or generator-specific nomenclature (e.g., trade names). A generator should have broad discretion to use words that are appropriate for its facility and employees.

We also recommend that the agency's definition of "containers" excludes rail cars and cars and other transport devices. (0243)


EPA Response: In response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents
Regarding certain bulk transport containers, at 40 CFR 262.32(b), the Agency states, "Before transporting hazardous waste or offering hazardous waste for transportation off site, a generator must mark each container of 119 gallons or less used in such transportation with the following words and information in accordance with the requirements of 49 CFR 172.304:." Therefore, certain bulk transport containers, such as rail cars and other transport devices are excluded from the enhanced container labeling requirements. 

Section 5.2.1 - Requiring accumulation start date in logs or records for tanks

Comment: 24. Regarding tank labeling requirements for LQGs and SQGs  -  Section VIII.F.2., pages 57950-57951: Colorado agrees with the proposal to use inventory logs, monitoring equipment, or other records indicating the accumulation start date to show a generator's compliance with the accumulation time limits for hazardous waste tanks. Colorado already allows tank logs to ensure the accumulation time limit is not exceeded and the proposed regulatory language seems to allow enough flexibility for facilities to establish their own tracking and recording methods for ensuring that they have not exceeded accumulation time limits. (0085)
EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments, we have modified the proposed rule which we believe will be more practical and achieves the objectives of improving risk communication in the management of hazardous wastes. Further, the Agency believes the final rule's tank marking and labeling requirements reflect industry practices. 
Comment: Regulations 262.16 and 262.17
Tank Labels and Logs
The proposed rule requires additional monitoring and inventory logs. This additional information/requirement is not practical for all waste collection situations. For instance, some 90-day accumulation tanks operate under continuous flow and many operate in a manner where different wastes are "batched" to the tank frequently. At a batch chemical plant, compatible waste may be sent from several different processes to one tank many times during a day. Keeping a log and description of the waste each time it is sent to a 90-day tank would be extremely burdensome. (0087)
EPA Response: In response to comments, the Agency has modified the proposed rule to reflect existing operations and practices and to reflect the concerns of this commenter. 
Comment: A. Documentation of the first date of accumulation facilitates compliance.

EPA proposes to clarify the requirement that facilities document accumulation start dates. 80 Fed. Reg. at 57,950-57,951. The current rule specifies that containers are marked with the "date upon which each period of accumulation begins," but it is less clear regarding tanks and drip pads. The additional clarity proposed will promote compliance by eliminating differences in management of containers, tanks, and other units. (0107)
EPA Response: In response to comments, the Agency has modified its proposal to clarify the date upon which each period of accumulation begins. A summary of these requirements is discussed at the beginning of Section 5. 
Comment: Eastman does not oppose the change in labeling requirements proposed for containers and supports the provisions for tanks that allow the description of the contents to be maintained in a log along with the accumulation information. (0128)
EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of this section. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes
Comment: ii. Tank Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3). Current regulation requires that all tanks be labeled with the words "Hazardous Waste". The new regulation would allow generators to use inventory logs, monitoring equipment or records to determine the 90 and 180 day accumulation dates, as well as in helping to determine the contents and the associated hazards of the hazardous waste in the tank.
DTSC supports the amendments to 40 CFR 262 regarding tank marking and labeling and inventorying. DTSC supports the clarifications regarding additional inspections. (0174)
EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of this section. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes. 
Comment: Preamble Section VIII.F.2. CT DEEP supports EPA's proposal to require SQGs and LQGs that accumulate waste in tanks to document the amount of time that waste has been accumulated by marking the date of original accumulation on the tank itself, or by recording this information in inventory logs, tank level monitoring equipment, or tank inspection logs. However, CT DEEP requests clarification from EPA regarding how to assess compliance with the accumulation time requirements for SQGs and LQGs that store waste in tanks that receive hazardous waste from continuous flow processes (in other words, how to determine compliance with the accumulation limit requirement when waste may enter and leave the tank at different times, without the tank ever being completely emptied). CT DEEP also suggests that EPA consider creating a definition of an "empty tank" just as it has defined "empty containers." (0178)

EPA Response: In response to this commenter and others, the Agency has addressed the concern of continuous flow processes in both preamble and regulatory text in the final rule. A summary is discussed above at the beginning of Section 5.
Comment: 22. Page 57951, Section VIII.F.3.: Utah agrees that drip pads and containment buildings also need proper records to determine accumulation times. (0185)
EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of Section 5. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes. 
Comment: 23. Page 57952, Section VIII.F.3.: Utah agrees that the generators need to use inventory logs or records to show accumulation times. (0185)
EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of Section 5. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.
Comment: Regarding identifying waste placed in tanks, the state agrees with the proposed regulation allowing SQGs and LQGs to use inventory logs, monitoring equipment, or records indicating start accumulation dates. (0195)

EPA Response: The Agency appreciates the support of this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of Section 5. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.
Comment: Regarding the proposed requirement that generators storing waste in tanks implement a system to verify the date that waste first entered the tank and that records of such information be immediately available to an inspector, implementation of this requirement will impose undue burden on the generators. Specifically, tanks used for <90-day storage of hazardous waste are already required to be labeled as hazardous waste, and the date could easily be affixed to the already in place label. This is the same process as currently applies to containers, and generators are entrusted under the current rules to date containers when waste first enters the container. It seems unnecessary to require an additional and higher standard, such as logs, inventory, etc., for tanks being used for essentially the same function as containers. (0205)
EPA Response: The Agency has modified the marking and labeling of tanks in the final rule to take into account existing operating practices. These modifications address the above concerns.
Comment: In addition, some hazardous waste storage tanks function essentially as flow-through tanks, where waste is added and removed on a daily or weekly basis. For such tanks, the requirement to date when the waste first enters the tank is problematic, since waste is entering and being removed from the tank regularly or continuously. Facilities where such tank storage is in place manage the tank contents via an understanding of tank turnover rate to demonstrate routine removal of all contents without the need to document the date of first waste entry into the tank. The net effect of such a system is that waste never remains in the tank for more than 90 days, and in reality, is typically in the tank for only a few days at the most. Requiring use of logs, inventories or level sensors burden generators with added recordkeeping, documentation and potentially capital costs when simply marking a date on a label consistent with other procedures already in place for containers, or use of current records demonstrating regular waste removal, will accomplish the same result. (0205)
EPA Response: In response to this commenter and others, the Agency has addressed the concern of continuous flow processes in both preamble and regulatory text in the final rule. A summary is discussed above at the beginning of Section 5.
Comment: 57950 - Exceeding time limits could be a violation of a condition for an exemption from permitting
:: Input sought on recordkeeping requirements for tanks accumulating hazardous waste to demonstrate it has not been storing waste for more than the allowable time frames.
:: Request that EPA changes specifically address situations where the tank is not RCRA empty because of solids settled at the bottom, and the tank construction can allow several feet of solids to accumulate. Current rules only require the tank to be emptied using "normal procedures." These tanks do not have to be RCRA empty, and inventory records can show active throughput well over the tank capacity. (0214)
EPA Response: The commenter raises a good point. The Agency believes that generators will periodically shut down their tanks in order to clean out bottom residues. Without performing this cleanout of residue buildup, the tank will have less volume over time to store/accumulate the wastes leading the generator to possibly purchase a new tank when there is no need to do so.
Comment: Section VIII.F.2 (Page 57951): Based on knowledge and experience, generators that accumulate hazardous waste in tanks do not change the type of waste placed in the tanks. Therefore, most States feel it is sufficient for generators to mark their tanks with the words "Hazardous Waste." It is not believed that adding a description to the tank adds any additional protection. Most States support using inventory logs, monitoring equipment, or records to identify that date upon which each period of accumulation begins. In practice, this seems to work well. (0217)

EPA Response: We agree with this commenter. However, in response to comments we have modified the proposed rule as described in the beginning of Section 5. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.
Comment: DC feels that requiring proof of accumulation start date via dating the vessel or via a log would be sufficient. (0248)
EPA Response: The Agency agrees with this commenter regarding these provisions. However, in response to comments we have modified the proposed rule as described in the beginning of Section 5. We believe the final rule is more practical and achieves the objectives of improving risk communication in the management of hazardous wastes.

Comment: ACA believes that this proposal could be infeasible for a system that is directly connected or if material is continuously being added to the storage tank. ACA argues that requiring logs to identify each addition of hazardous waste into a tank are not necessary since there are other more economical ways to prove that material is being stored for less than the allotted time. Generators could prove compliance by using the volume shipped, date, or tank volume. (0262)


EPA Response: In response to this commenter and others, the Agency has addressed the concern of continuous flow processes in both preamble and regulatory text in the final rule. A summary is discussed above at the beginning of Section 5.We believe these changes should address this commenter's concerns. 


Section 5.2.2 - Requiring contents of a tank and hazards in logs or records for tanks

Comment: It should also be recognized that chemical reactions occur when hazardous waste is mixed in collection tanks. Molecules A & B sent independently to a tank may interact with other chemicals in the tank to produce molecules C, D, & E. It is not practical for large batch plants that collect liquid waste in tanks to keep a dynamic log of waste inputs and tank contents (reaction products). (0087)
EPA Response: 40 CFR 262.34 (a) states that a generator may accumulate hazardous waste on-site for 90 days or less without a permit or without having interim status provided it meets specified conditions. At issue is how that is accomplished with generators using a batch process. As part of this e final rule the Agency changed the dating requirement for tanks at SQGs and LQGs so that instead of using logs, monitoring equipment or records to identify when the 180- or 90-day accumulation period begins, generators must use logs, monitoring equipment or other records to demonstrate that hazardous waste is either emptied or removed from the tank within 180 or 90 days, with the final regulations now addressing both batch and continuous flow processes. While the Agency discussed both types of processes in the preamble to the proposed rule, the regulatory text in the proposed rule failed to address continuous flow processes. SQGs and LQGs with batch process tanks must demonstrate that their tanks are emptied every 180 or 90 days, respectively. However, the Agency recognizes that when hazardous waste is accumulated in tanks with continuous flow processes it may not be possible for SQGs and LQGs to demonstrate that a tank is emptied every 180 or 90 days, respectively, from when the hazardous waste first entered the tank. Therefore, generators with tanks with a continuous flow process have flexibility in how to demonstrate that hazardous waste has been turned over (as opposed to emptied) in a tank. For a continuous flow process, this demonstration involves a generator identifying the estimated daily input or inflow of hazardous wastes into the tank, the estimated outflow from the tank, and the capacity of the tank to estimate how many days the hazardous waste will reside in the tank before exiting. This procedure should satisfy the concerns of this commenter.
Comment: B. Allowing the use of inventory logs and other existing records to satisfy the documentation requirement provides appropriate flexibility and reduces the burden on generators.

The proposed rule offers generators the flexibility to use inventory logs and other routinely kept operations records to satisfy the documentation requirement. Rather than impose a new burden on generators, the proposed rule acknowledges procedures that many generators already have in place.
Thus, it provides common sense flexibility to address a gap in the existing rule. (0107)
EPA Response: The Agency appreciates the above comments.
Comment: In Comment C, TWC explains why a new provision requiring hazardous waste generators to log the contents of drip pads and associated hazards is unnecessary.
C. Requiring Generators Who Accumulate Hazardous Waste on Drip Pads to Use Inventory Logs, Monitoring Equipment, or Records to Identify Drip Pad Contents and Associated Hazards

The proposed rule would require generators operating drip pads to "use inventory logs, monitoring equipment, or records to identify the contents of the tank, drip pad or containment building and its associated hazards." §§ 262.16(b)(6)(ii)(B) (SQGs), 262.17(a)(5)(ii)(B) (LQGs). TWC opposes this provision because it is duplicative and unnecessary.

The identity and nature of the hazardous waste on the drip pad is consistent, barring a conversion to a different preservative. The quantity of waste on a drip pad is typically very small, as the drip pad must be sloped to freely drain to an associated sump or collection system. This sump or collection system is generally part of the facility's RCRA - exempt wastewater treatment unit. Therefore, there is no need to maintain inventory logs or similar records. Indeed, it is impractical to attempt this as the typical drip pad may contain only a few shovels full of waste spread over the entire area, and it is not possible to accurately quantify the amount of this material. Typically, the material is quantified when it is removed from the drip pad and placed in a satellite accumulation container as required by the existing rules.

Furthermore, identification of hazardous wastes and associated dangers is accomplished through existing tools, such as the Occupational Health and Safety Administration's (OSHA) Hazard Communication Standard (HCS) and associated safety data sheets for hazardous chemicals, [Footnote 10: See 29 C.F.R. §§ 1910.1200(g) and (h).] Emergency Planning and Community Right to Know Act (EPCRA) requirements for conducting emergency response planning and maintaining and submitting safety data sheets to local responders, [Footnote 11: See 40 C.F.R. part 370.] and the hazardous waste contingency plan for LQGs. [Footnote 12: As the regulations currently stand, this provision is located at 40 C.F.R § 262.34(a)(4) (requiring LQGs to comply with the contingency plan and emergency procedures requirements in 40 C.F.R. part 265 subpart D).] The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) [Footnote 13: See 7 U.S.C. § 136 et seq.] requires that extensive information on the wood preservatives themselves, including associated hazards, is made available. These provisions ensure that employees and emergency responders have the information and training necessary to operate safely around a drip pad under both normal and emergency conditions.

In effect, this proposed provision would require information that already exists to be maintained in an additional location, thereby increasing recordkeeping burdens while providing no measurable safety improvements.

Comments A, B, and C explain why the three marking and labeling provisions in §§ 262.16(b)(6)(ii) and 262.17(a)(5)(ii) should not be applied to drip pads accumulating hazardous waste. The drip pad is a unique hazardous waste accumulation unit and should not be subject to the same standards as other units simply for the sake of regulatory uniformity. Therefore, TWC respectfully requests that EPA remove all references to drip pads in §§ 262.16(b)(6) and 262.17(a)(5) to ensure that drip pads are not subject to these provisions. [Footnote 14: Specifically, TWC requests that "drip pad" be removed from the following provisions for SQGs: §§ 262.16(b)(6), 262.16(b)(6)(ii), 262.16(b)(6)(ii)(A), 262.16(b)(6)(ii)(B), and 262.16(b)(6)(ii)(D). TWC requests that "drip pad" be removed from the following provisions for LQGs: §§ 262.17(a)(5), 262.17(a)(5)(ii), 262.17(a)(5)(ii)(A), 262.17(a)(5)(ii)(B), and 262.17(a)(5)(ii)(D).] (0164)
EPA Response: The Agency agrees with the above comments. Therefore, the Agency has reverted back to the previous regulations in addressing the above comments. 
A generator with drip pads must comply with subpart W of 40 CFR part 265, and, consistent with existing regulations, must remove all hazardous wastes from the drip pad and associated collection system within every 90 days. Once the hazardous wastes was removed from a drip pad, LQGs would have up to 90 days and SQGs up to 180 days to accumulate the hazardous wastes without a permit or interim status. SQGs and LQGs would also have to maintain the following records at the facility by use of inventory logs, monitoring equipment, or any other effective means: records that describe the procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and records that document each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal. 
These records would need to be kept on site and readily available for inspections. Ideally these records would be in close proximity to where hazardous waste is being accumulated after removal from the drip pad, such as in a control room, or other central location at the facility. 
In addition, consistent with guidance previously issued by the Agency for wood treaters, that if hazardous waste is placed in a satellite accumulations area, the waste can remain there until the drum is full. Once the drum is full, it must be dated and moved to the hazardous waste storage area. Thereafter, the 90 or 180 day accumulation clock for LQGs and SQGs, respectively, begins.
In the process of trying to consolidate the waste accumulating provisions for tanks, drip pads and containment buildings in the proposed rule, the Agency failed to properly take notice that drip pads are very different in operation than tanks and containment buildings. The unique nature of drip pads was addressed through several earlier rulemakings. For example, on December 6, 1990, EPA promulgated several new hazardous waste listings specific to the wood preserving industry, along with unit-specific hazardous waste standards for drip pads (`subpart W') and corresponding generator accumulation provisions for persons generating hazardous waste and managing the waste on drip pads (55 FR 50450). As part of that rulemaking, EPA established a standard by which generators must remove all hazardous wastes from their drip pad at least once every 90 days, while still allowing for additional time to accumulate the hazardous waste (e.g., in tanks or containers) depending on their generator status. This latter issue was clarified in subsequent guidance, but is being further clarified in this final rule. Therefore, for both LQGs and SQGs, hazardous wastes must be removed from the drip pad and associated collection system at least once every 90 days, and the Agency is retaining the regulatory text previously found at § 262.34 (a)(1)(iii). By incorporating this provision, the Agency will also address the requirements that generators describe the procedures to demonstrate that all wastes have been removed from the drip pad and associated collection system at least once every 90 days.

Comment: ii. Tank Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3). Current regulation requires that all tanks be labeled with the words "Hazardous Waste". The new regulation would allow generators to use inventory logs, monitoring equipment or records to determine the 90 and 180 day accumulation dates, as well as in helping to determine the contents and the associated hazards of the hazardous waste in the tank.

DTSC supports the amendments to 40 CFR 262 regarding tank marking and labeling and inventorying. DTSC supports the clarifications regarding additional inspections. (0174)
EPA Response: The Agency appreciates the above comments.
Comment: We also concur with the proposed language regarding identifying, marking and labeling wastes stored in a containment building or on a drip pad, with the exception of requiring an indication of the waste hazards, as commented above. (0195)
EPA Response: The Agency has modified the marking and labeling requirements such that the identification of waste hazards is not required. 
Comment: EPA is proposing revisions to the marking and labeling waste accumulation units (e.g., container, tank, drip pad, or containment building) in order for employees, inspectors, emergency responders, and waste handlers to better understand the potential hazards associated with the contents of hazardous waste contained in a unit  -  Most generators and transporters already mark and label their containers with the applicable EPA hazardous waste numbers and the hazards of the container. Requiring that applicable EPA hazardous waste numbers and hazards be marked and labeled on the containers decreases overall burden because it avoids the need for a designated facility to identify the hazardous waste or send it back to the generator for proper identification. EPA states that this proposed provision should not increase the burden on generators and transporters as it reaffirms commonly used waste management practices.

The proposed marking and labeling of accumulation units is already a common practice and the proposal will have a limited impact on Wisconsin's facilities. As an efficiency measure, WDNR suggests that for these markings and the labels to be effective at a generator's site, they need to be visible to a person who is passing by the container. Therefore, require that all container markings and labels be clearly visible and legible to a person who is observing a container in a satellite accumulation area or a central accumulation area. (0206)
EPA Response: The Agency did not specifically require container markings and labels to be clearly visible and legible. However, the Agency believes this is a best management practice that all generators should already be doing. 
Comment: Logs identifying each addition of hazardous wastes into a tank are unnecessary and should not be required. (See Comment #25). (0219)
EPA Response: The Agency is not requiring generators toidentify each addition of hazardous wastes into a tank. However, generators must use inventory logs, monitoring equipment, or other records to demonstrate that hazardous waste has been emptied within 180 days of first entering the tank if using a batch process, or in the case of a tank with a continuous flow process, demonstrate that estimated volumes of hazardous waste entering the tank daily exit the tank within 180 days of first entering; and keep inventory logs or records with the above information on site and readily available for inspection.

Comment: Pages 57950-51: 
2. Tank Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3))

DC believes that it is not unreasonable to require facilities to mark the contents on tanks. (0248)
EPA Response: The Agency is not requiring facilities to mark the contents on tanks but relying on DOT marking and labeling requirements, a one example, to identify the hazards of the tank's contents.
Comment: Pages 57951-52: 
3. Drip Pad and Containment Building Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3)) 76

DC feels that containment buildings should be labeled on the building, but the accumulation start date could be marked on the building or tracked via a log.

DC has no experience with drip pads used for storage.


EPA Response: In the final regulations, the generator must label its containment buildings with the words "Hazardous Waste" in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, or other persons on site and also in a conspicuous place provide 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704).

Section 5.2.3 - Suggestions for alternative methods/standards

Comment: To improve information about the contents of tanks, particularly those in which the contents frequently changes, EPA proposes that SQGs and LQGs use inventory logs or records to identify the contents of a tank and its associated hazards, and make that information immediately accessible should the need arise. We agree that generator personnel and emergency responders need to have immediate access to information about hazards posed by a tank's contents; however, rather than inventory logs or records, we suggest the Agency consider the use of changeable placards for tanks or storage areas where the content designation changes. In an emergency, it is helpful to have such information visible from a safe distance. (0159)

EPA Response: In the final rule, generators will not need to identify the contents of a tank as much as (A) Mark or label its tanks with the words "Hazardous Waste;" and (B) Mark or label its tanks with 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704). Use of changeable placards is a method to indicate the hazards of the tank's contents. 

Comment: :: 262.32 - Recommend modifying 262.32(b) to apply to all containers of 550 gallons or 2.75 cubic yard capacity or less. (0214)
EPA Response: 40 CFR 262.32 (b) is finalized as follows: "Before transporting hazardous waste or offering hazardous waste for transportation off site, a generator must mark each container of 119 gallons or less used in such transportation with the following words and information in accordance with the requirements of 49 CFR 172.304:". This is consistent with existing DOT regulations. 

Comment: Suggestion to Address Concerns With This Proposal: Northeastern suggests EPA drop the proposed additional labelling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. In lieu of dropping the proposed additional labelling requirements, Northeastern requests that EPA exempt containers smaller than 55 gallons from the proposed additional labelling requirement. This would reduce the burden on research facilities like Northeastern, but allow emergency response personnel an added layer of information in cases where the containers are large enough to pose a serious hazard. (0249)
EPA Response: The Agency does not agree with this comment. The Agency has modified the proposed rule in response to other comments and not included the requirement that generators mark their containers and tanks with the contents of the waste accumulation unit. 
It is a misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.
In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as labpacks, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: Extend Proposed Date Tracking Provisions For Tanks To Containers

Heritage fully supports EPA's proposal to accommodate alternative date tracking mechanisms as compared to the existing requirements to physically write hazardous waste accumulation dates on tanks. Digital recordkeeping systems, in particular inventory-focused barcode applications and tank level sensor controls, are both affordable and in widespread use throughout the generator community.

Also, since many of these systems are highly automated, they often will be more accurate than physically marking a tank with a date. Heritage also agrees with EPA's following comment; "Generators may also use any other methods that clearly demonstrate the date hazardous waste first entered the tank." (80 FR 57950). This statement accommodates alternative methodologies, future electronic recordkeeping innovations, and overall will reduce generators' recordkeeping burden. (0259)

EPA Response: In response to comments, the Agency has modified the marking of RCRA waste codes at 40 CFR 262.32 to allow a generator to use a nationally recognized electronic system, such as bar coding, to identify the EPA Hazardous Waste Number(s). As part of this system, other information valuable to a TSDF in profiling a hazardous waste. Also as part of the final rule, a generator may use inventory logs, monitoring equipment, or other records to demonstrate that hazardous waste has been emptied within 180 days of first entering the tank if using a batch process, or in the case of a tank with a continuous flow process, demonstrate that estimated volumes of hazardous waste entering the tank daily exit the tank within 180 days of first entering. 

Section 5.2.4 - Other

Comment: EPA should not require container labels with the proposed multiple categories of information, but rather should convene all stakeholders to identify the best approach for labeling containers. (See Comment #22). (0219)
EPA Response: The Agency disagrees with this comment. In response to other comments, the Agency has reduced its marking and labeling requirements and also provided flexibility in how it accomplishes this requirement. We direct the commenter to the summary at the beginning of Section 5.2.

Section 5.3 - Specific handler concerns

Comment: §262.15(a)(5)(ii) and (iii), page 57995
EPA is proposing to require additional wording on containers of hazardous waste while the wastes are being managed in satellite accumulation areas. While this seems reasonable when managing large containers (e.g., 5 gallon drums) as satellite containers, this can become significantly burdensome when managing small containers (e.g., 1 oz bottle). From §262.15(a)(5)(ii) and (iii), the information required to be marked on the container oftentimes will not fit on a small container of hazardous waste. Currently our facility has a 4 oz container of waste PVC cement (D001 and D035) in a satellite accumulation area. This small container does not have enough blank space for the generator to satisfy the proposed marking requirements of §262.15(a)(5)(ii) and (iii). To add the proposed information to the container we would need to write over the current product markings, ingredients and/or hazard information with a black felt tip marker. It's generally not recommended that original product information be obscured. Furthermore, the original product information on the PVC cement container satisfies the proposed marking requirements.

Here are three suggestions.

1. Add wording to this section that exempts a container from (ii) and (iii) if the hazardous waste is in its original product container and the ingredient and hazard information on the product container accurately reflects the waste product in the container.

OR

2. Change the wording of §262.15(a)(5), saying "A generator must ensure the container is marked with the following:". By asking the generator to ensure the information of (i), (ii) and (iii) is on the container, the generator would only be obligated to add information not already on the container. This is much better than requiring the generator to mark the container with all the information, which 1.) is probably already on the product container and 2.) can make the outside of the container difficult to read.

OR

3. It would be beneficial for the agency to clearly state that for small containers of hazardous waste; it is acceptable to attach a tag containing all the required information. For example, for a small vial of hazardous waste, a tag with the required markings can be taped or tied to the vial. 
(Commenter 0079)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as labpacks, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. Similarly, if a hazardous waste is in a container that already has the appropriate marking and labeling (e.g., the hazardous waste is an unused commercial chemical product that is in its original container with an intact label), the existing marking and labeling would be sufficient. The generator would not need to duplicate the marking and labeling, assuming the original label contains the information necessary to comply with the marking and labeling requirements. 

Comment: 3. Regarding the proposed labeling requirements for SAA containers, Colorado has the same comment that we have for central accumulation area containers, that is extra labeling beyond that which is already required seems unnecessary. The public and/or others are not typically allowed access to accumulation areas, so labels other than "Hazardous Waste" seem unnecessary. (Commenter 0085)
EPA Response: The Agency disagrees that the extra labeling for SAA containers is unnecessary. While the words "Hazardous Waste" on containers provide some measure of information regarding the contents, this information fails to describe the specific hazards of the contents and what risk these wastes could pose to human health and the environment. 
Comment: Changing the labeling requirements defeats the purpose of satellite accumulation. Waste container labels are only of interest to waste managers; there is no need to include any safety information since it is readily available on virgin product containers in the same area the waste is generated. (Commenter 0099)
EPA Response: EPA disagrees. In many cases safety information will not be readily available on virgin product containers in the same area the waste is generated. And even in cases where the safety information is readily available, there could be multiple virgin products nearby with no way for an employees or emergency responders to know which one is in any specific hazardous waste.
Comment: Changing the labeling requirements defeats the purpose of satellite accumulation. Waste container labels are only of interest to waste managers; (Commenter 0101)
EPA Response: EPA disagrees. EPA believes it is important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know as much as possible about the potential hazards of the contents in containers being accumulated, transported, and managed, whether on site and/or off site, so that the hazardous wastes are managed in an environmentally sound manner.


Comment: With so many small containers of a wide variety of materials, this rule would be burdensome to university research and teaching areas. It would require the laboratory worker (student, faculty, or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings.

The intent of the proposed rule appears to be two-fold: ensure the contents are listed to aid in waste determination and provide information that could be useful to emergency responders. Subpart K, section 262.206(a)(I)(ii) provides a method to achieve these goals in a manner much less burdensome and much more likely to be accurate by allowing generators to label the containers with "sufficient information to alert emergency responders to the hazards or the contents of the container." We urge EPA to consider this option rather than the proposed requirement. (Commenter 0110)
EPA Response: EPA disagrees with the commenter, and continues to believe that this requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: However, UNL opposes the Agency's proposal to require marking of containers in SAAs with the words "Hazardous Waste."
Likewise, UNL opposes the Agency's proposal to require labeling of containers in SAAs with an "indication of the hazardous of the contents of the container." Several of the labeling examples in the preamble are infeasible or may lead to greater confusion. It is infeasible to expect SAA staff to be knowledgeable of 49 CFR 172. Like RCRA, the DOT regulations are complex and require a significant degree of training and competency. In general, SAA staff cannot be expected to be competent in DOT regulations, and it is not feasible for EHS staff to provide this type of information preemptive to the waste actually being generated.
We suggest that a more appropriate approach is to require labeling of SAA waste containers with sufficient information to allow for a waste determination which would necessarily include the proper chemical name(s) and an indication that the material is used/spent/or not otherwise intended for further use. Proper chemical names will allow emergency responders and others to access information necessary on potential hazards in the event of an emergency, although we would like to point out that by design the amount of waste that can accumulate in a SAA is very limited making a large scale emergency unlikely. (Commenter 0121)
EPA Response: EPA disagrees with the commenter, and continues to believe that this requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: FR Page: 57965
Citation: 40 CFR 262.15
40 CFR 262.34
Topic: Revisions to Satellite Accumulation Area Regulations for SQGs and LQGs (VIII.I.3.)
Comment: WRPS and BNI are not in favor of this proposed change. Rather, BNI and WRPS are in favor of a change to list the HW and Major Risk on the container and not require a full listing of the contents. 
BNI-WTP is not in favor of the proposed change. BNI-WTP agree additional marking on waste accumulation containers are useful at all levels of waste management and emergency response. The proposed change requires three markings/labels: (1) HW, AND (2) contents identification, AND (3) hazard/risk. This may be a little overkill. Suggest requiring at least two of the three: (1) HW AND (2) contents identification OR hazard/risk label (but not both). For accumulation, the container contents and hazard or risk generally provide the same information (e.g., acid and corrosive). This alternative is similar to the existing State of Washington rule (WAC 173-303-200(1)(d)). (0123)
EPA Response: EPA agrees and we have simplified the marking and labeling for containers in SAAs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. The final regulations for marking and labeling of containers in SAAs require SQGs and LQGs to mark containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 

Comment: WRPS is not in favor of the proposed change regarding marking accumulated hazardous waste containers with the words "Hazardous Waste" and other words that identify the contents of the containers for a third party, as it would require time and money expenditure to develop and implement a consistent approach for this additional marking and labeling requirement.

WRPS requests the addition of text to the proposed change in I.3, regarding marking accumulated hazardous waste containers with the words "Hazardous Waste" and other words that identify the contents of the containers for a third party, to exempt small-scale satellite accumulation of laboratory waste or to allow for a labeling alternative that makes reference to the process that generated such laboratory waste. Laboratories often generate chemically-complex analytical residues as hazardous waste that may consist of tens of different chemicals. Labeling the names of all these chemicals on a container of waste at a laboratory scale is not practical due to label space constraints. Similarly, labeling laboratory waste with the type of class of chemical is not as straightforward as it might be for a common industrial process. Analytical residues are often complex, multifaceted, mixtures that can be cumbersome to place into a chemical category that would provide meaningful information to an emergency responder. Using the proper DOT shipping name for small containers of SAA laboratory bench waste is also not practical because these items will eventually be lab-packed into shipping containers and the DOT shipping name will depend on the contents. Assigning shipping names to items that will ultimately be lab-packed would be extremely labor intensive. 
WRPS requests the addition of text to the proposed change regarding labeling containers to indicate the hazards of contained waste, to require that only the HW and major risk of the contained waste be addressed on the label. (0123)
EPA Response: EPA agrees and we have simplified the marking and labeling for containers in SAAs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. The final regulations for marking and labeling of containers in SAAs require SQGs and LQGs to mark containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 


Comment: FR Page: 57980
Citation: 40 CFR 268.50
Topic: Proposed Revisions to 40 CFR Part 268  -  Land Disposal Restrictions (XII.)
Comment: WRPS and BNI are not in favor of this proposed change. Rather, BNI and WRPS are in favor of a change to list the HW and Major Risk on the container and not require a full listing of the contents. 

BNI-WTP is not in favor of the proposed change. BNI-WTP agree additional marking on waste accumulation containers are useful at all levels of waste management and emergency response. The proposed change requires three markings/labels: (1) HW, AND (2) contents identification, AND (3) hazard/risk. This may be a little overkill. Suggest requiring at least two of the three: (1) HW AND (2) contents identification OR hazard/risk label (but not both). For accumulation, the container contents and hazard or risk generally provide the same information (e.g., acid and corrosive). This alternative is similar to the existing State of Washington rule (WAC 173-303-200(1)(d)).

WRPS is not in favor of the proposed change regarding marking accumulated hazardous waste containers with the words "Hazardous Waste" and other words that identify the contents of the containers for a third party, as it would require time and money expenditure to develop and implement a consistent approach for this additional marking and labeling requirement.
WRPS requests the addition of text to the proposed change regarding marking accumulated hazardous waste containers with the words "Hazardous Waste" and other words that identify the contents of the containers for a third party, to exempt small-scale satellite accumulation of laboratory waste or to allow for a labeling alternative that makes reference to the process that generated such laboratory waste. Laboratories often generate chemically-complex analytical residues as hazardous waste that may consist of tens of different chemicals. Labeling the names of all these chemicals on a container of waste at a laboratory scale is not practical due to label space constraints. Similarly, labeling laboratory waste with the type of class of chemical is not as straightforward as it might be for a common industrial process. Analytical residues are often complex, multifaceted, mixtures that can be cumbersome to place into a chemical category that would provide meaningful information to an emergency responder. Using the proper DOT shipping name for small containers of SAA laboratory bench waste is also not practical because these items will eventually be lab-packed into shipping containers and the DOT shipping name will depend on the contents. Assigning shipping names to items that will ultimately be lab-packed would be extremely labor intensive.

WRPS requests the addition of text to the proposed change regarding labeling containers to indicate the hazards of contained waste, to require that only the HW and major risk of the contained waste be addressed on the label. (Commenter 0123)
EPA Response: EPA agrees and we have simplified the marking and labeling for LDR storage prohibition purposes for containers at TSDFs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. The final regulations for marking and labeling of containers in SAAs require SQGs and LQGs to mark containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704). 


Comment: UofL requests EPA remove the proposed new requirement to label all hazardous waste containers in satellite accumulation areas with the words "hazardous waste", a description of the waste, and an indication of the hazard from the proposed addition of 40 CFR 262.15(a)(5). 
In addition, UofL requests EPA remove the proposed new requirement for large quantity generators of hazardous waste to label all hazardous waste containers with the words "hazardous waste", a description of the waste, and an indication of the hazard from the proposed addition of 40 CFR 262.17(a)(5). These additional labelling requirements are duplicative of other regulatory programs and difficult to implement as proposed. (Commenter 0139)
EPA Response: EPA disagrees with the commenter and continues to believe that this requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: Preamble Section VIII.I. This section pertains to numerous changes that EPA is proposing with respect to satellite accumulation areas. These are storage areas that are located at or near the process generating the waste and that are under the control of the operator of the process generating the waste. These storage areas are subject to fewer requirements than central accumulation areas since they are closely associated with the process, and are the point at which wastes initially accumulate until they are transferred to the central accumulation area. CT DEEP generally concurs with the proposed changes, except as noted below:

a.) CT DEEP concurs with EPA's proposal to add new requirements for the management of incompatible wastes in satellite accumulation areas operated by SQGs and LQGs. CT DEEP notes that Connecticut's hazardous waste regulations have required this for many years, and this requirement has proven helpful in preventing dangerous reactions due to co-storage of incompatible waste in satellite accumulation areas. CT DEEP would also encourage EPA to add a requirement that satellite accumulation areas be required to comply with the requirements of 40 CFR 265.31 (regarding maintenance and operation of facility to prevent fires, explosions, and releases), and 265.173(b) (regarding management of containers to prevent them from rupturing or leaking). Connecticut's hazardous waste regulations have included these requirements for more than ten years and CT DEEP believes that these requirements are important to ensure that generators operate satellite accumulation areas safely. (Commenter 0178)
EPA Response: EPA agrees and in the final rule EPA has clarified that the preparedness, prevention and emergency procedures for SQGs (262.16(b)(8) and (b)(9)) and LQGs (part 262 Subpart M) must include any SAAs that are on-site. These new sections in the generator regulations include the requirement regarding maintenance and operation of facility to prevent fires, explosions, and releases, which was adapted from 40 CFR 265.31.
As for including a requirement for SAAs to comply with 265.173(b), regarding management of containers to prevent them from rupturing or leaking, although we did not include this specific requirement, we agree that it is appropriate to manage containers to prevent them from rupturing or leaking as a best management practice. And we have included provisions for how to manage containers if they do begin to leak. 
Comment: Requiring that drums in Satellite Accumulation Areas be marked with an indication of the hazards of the container's contents would be burdensome to staff because the hazard class is not always known until the drum is full and the contents are sampled. The Port Authority feels that it is sufficient to mark the drums in Satellite Accumulation Areas with (1) the words "Hazardous Waste," and (2) other words that identify the contents of the containers. (Commenter 0179)
EPA Response: It is a misperception that we are requiring the use of DOT hazard class labels on containers during on-site accumulation. In actuality, the Agency is providing flexibility to generators in how they identify the hazards of the hazardous waste in the container, and using DOT hazard communication such as hazard class labels (or placards, if appropriate) is one option for complying with this requirement.
EPA now believes that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. Nevertheless, while the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified. 
Comment: However, KULC-EHS opposes the Agency's proposal to require marking of containers in SAAs with the words "Hazardous Waste." The verbiage "Hazardous Waste" is not a descriptor that provides an scientific or safety warning/recognition. More appropriate are descriptors like "Spent Acetone" or "Waste Corrosive Liquid". The words "Hazardous Waste" should only be applied once the proper waste determination has been completed and it is determined these are materials RCRA regulated as Hazardous Waste. Even then, they serve no indicator other that it is regulated under 40 CFR 260-265. 
Requiring the words "Hazardous Waste" will create confusion, paranoia and often times mislabeling of items when not required. The only way achieve the current proposed rule in SAAs typical of university laboratories will be to advise SAA staff to label all waste containers as hazardous waste. This would be contrary to the Agency's position that waste determinations be accurate and means many items that are not truly hazardous waste are designated as such prematurely. (Commenter 0183)
EPA Response: EPA disagrees with commenter and continues to believe that this requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: Likewise, KULC-EHS opposes the Agency's proposal to require labeling of containers in SAAs with an "indication of the hazardous of the contents of the container." Several of the labeling examples in the preamble are infeasible or may lead to greater confusion. It is infeasible to expect SAA staff to be knowledgeable of 49 CFR 172. Like RCRA, the DOT regulations are complex and require a significant degree of training and competency. In general, SAA staff cannot be expected to be competent in DOT regulations, and it is not feasible for EHS staff to provide this type of information preemptive to the waste actually being generated. (0183)
EPA Response: EPA disagrees with the commenter and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment. It is a misperception that we are requiring the use of DOT hazard class labels on containers during on-site accumulation. In actuality, the Agency is providing flexibility to generators in how they identify the hazards of the hazardous waste in the container, and using DOT hazard communication such as hazard class labels (or placards, if appropriate) is one option for complying with this requirement.
Comment: We suggest that a more appropriate approach is to require labeling of SAA waste containers with sufficient information to allow for a waste determination which would necessarily include the proper chemical name(s) and an indication that the material is used/spent/or not otherwise intended for further use. Proper chemical names will allow EHS staff and others (i.e., emergency responders) to access information necessary on potential hazards in the event of an emergency, although we would like to point out that by design the amount of waste that can accumulate in a SAA is very limited making a large scale emergency unlikely. Many institutions have devised their own internal container labels that address this. Allowing them to continue this as a "performance based" issue is in the best interest of all/ (Commenter 0183)
Instead, the Agency has simplified the marking and labeling requirements for hazardous wastes accumulated in containers in a SAA and CAA to read: (5) A generator must mark or label its container with the following: (i) The words "Hazardous Waste," and (ii) 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704). 
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: Lab students, faculty and staff have general awareness that their waste is hazardous and know the general contents (i.e. methanol, chlorinated solvents, etc.). However, as previously mentioned, the requirement to indicate the precise hazards would be burdensome. (0190)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: EPA's proposed rule will impose a slight impact for those Wisconsin's facilities that use SAA, because of the additional labeling and marking requirements. Most Wisconsin facilities are already complying with these labeling and marking requirements. (Commenter 0206)
EPA Response: EPA is encouraged to hear that most Wisconsin facilities are already complying with the proposed labeling and marking requirements and that the rule's impact will be minimal.

Comment: 2. Strengthening the marking and labeling provisions for containers in SAAs.

The proposed labeling requirements defeats the purpose of SAAs. To meet the proposed labeling requirements for a mixture of waste chemicals requires expertise and analysis beyond the responsibility and/or capability of most SAA operators. (Commenter 0230)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: 1. EPA should not impose additional labeling requirements on satellite accumulation areas.

The proposed changes to the labeling requirements for satellite accumulation areas are overly burdensome and lack proper justification. See 80 Fed. Reg. 57,965. Because of the temporary nature of waste held in satellite accumulations areas, the labeling requirements are less stringent, and the program has been well served by the distinction between satellite accumulation and other areas for many years. 
EPA's proposal would require generators to label waste containers at satellite accumulation areas with the specific contents of the containers, in addition to existing labels. 80 Fed. Reg. 57,965. This would impose entirely new compliance obligations. The new requirements are made no less burdensome by the suggestion that generators use DOT or OSHA labels. To effectively implement this program, companies would be required to organize and train additional staff with access to satellite accumulation areas and to impose additional inspections on those areas merely related to labeling.

The proposal does not provide any empirical data or analysis of the efficacy of existing systems, or examples of how additional labels have or would have prevented risks from satellite accumulation areas. EPA has stated that it "believes these proposed changes will alert workers, emergency responders, and others to the potential hazards posed by contents." However, it is improper to base the significant additional labelling, organizing, training and inspection burdens that would result from the proposal on belief or supposition. [Footnote 3: For example, it is unlikely that employees or first responders who are not trained in DOT labeling requirements would understand the meaning of DOT labels or be better prepared to address the contents of a container because of such labels.] This is especially true where, as here, the history of the program suggests that current labeling practices are sufficient.

Additionally, this requirement may cause confusion and compliance concerns for other programs. For example, the use of DOT labels on containers in satellite accumulation areas poses a risk that those containers would be confused for DOT compliant shipping containers, which have a number of requirements that do not apply to containers used in satellite accumulation areas. Similar confusion could arise from using OSHA labels. These concerns could only be avoided by requiring extensive and expensive training on various labeling requirements that may not otherwise apply to staff responsible for satellite accumulation areas.

In short, EPA should not impose the same requirements for longer term storage areas on satellite accumulation areas, and the existing labeling conventions for satellite accumulation areas should be left unchanged. (Commenter 0241)
EPA Response: EPA agrees and we have simplified the marking and labeling for LDR storage prohibition purposes for containers at TSDFs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. The final regulations for marking and labeling of containers in SAAs require SQGs and LQGs to mark containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
However, it is a misperception that we are requiring the use of DOT hazard class labels on containers during on-site accumulation. In actuality, the Agency is providing flexibility to generators in how they identify the hazards of the hazardous waste in the container, and using DOT hazard communication such as hazard class labels (or placards, if appropriate) is one option for complying with this requirement.
Comment: MU does not support the mandatory requirement to label containers in SAA with both "Hazardous Waste" and "other words that identify the contents of the containers." MU also does not support the mandatory addition of a label that indicates the hazard. EPA provides no rationale for this change other than the assumption that the container in SAA will also be the container ultimately shipped and thus require such a label eventually. This assumption is incorrect in many situations, particularly in laboratories. Additionally, small discarded chemical containers (i.e., materials in the original container) already make compliance with the current standard difficult as additional labeling may obscure important information provided by the manufacturer on the bottle that may assist in lab packing that container once it arrives at the CAA. (Commenter 0256)

EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: 262.15 Satellite accumulation area regulations for small and large quantity generators.

The proposed requirements in paragraph (a)(5) changes the marking of containers in satellite accumulation areas to require both the words "Hazardous Waste" and the identity of the contents. Furthermore, the proposed rule includes an additional labeling requirement to indicate the hazards of the contents. With so many small containers of a wide variety of materials, this rule would be burdensome to university research and teaching areas. It would require the laboratory worker (student, faculty, or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings.

The intent of the proposed rule appears to be two-fold: ensure the contents are listed to aid in waste determination and provide information that could be useful to emergency responders. Subpart K, section 262.206(a)(I)(ii) provides a method to achieve these goals in a manner much less burdensome and much more likely to be accurate by allowing generators to label the containers with "sufficient information to alert emergency responders to the hazards or the contents of the container." We urge EPA to consider this option rather than the proposed requirement. (Commenter 0258)


EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: Instead the waste container should be labeled with sufficient information to communicate the hazards to coworkers and emergency responders and to facilitate waste characterization for disposal within the central accumulation area and prior to shipment. The final disposal characterization including waste codes, packaging in appropriate shipping containers, and labeling for transportation to the disposal facility should be completed by a trained professional (similar to the process described in subpart K under 40 CFR 262.210) and within the 90/180 storage timeline allowed under 40 CFR 262.17. (Commenter 0280)
EPA Response: EPA agrees and we have simplified the marking and labeling for LDR storage prohibition purposes for containers at TSDFs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. The final regulations for marking and labeling of containers in SAAs require SQGs and LQGs to mark containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding); a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
EPA also agrees that a trained professional should be the one that marks and labels containers of hazardous waste. Accordingly, the final rule requires the pre-transport requirements, such as the addition of hazardous waste codes and appropriate shipping containers/labeling only immediately before a hazardous waste is shipped off-site. 
Comment: Furthermore, the proposed rule includes an additional labeling requirement to indicate the hazards of the contents. With so many small containers of a wide variety of materials, this rule would be burdensome to university research and teaching areas. It would require the laboratory worker (student, faculty, or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings. (Commenter 0135)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. EPA encourages colleges and universities (and associated eligible academic entities) to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: With so many small containers of a wide variety of materials, this rule would be burdensome to research and teaching focuses of academic institutions. It would require the laboratory worker (student, faculty, or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings. (Commenter 0136)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: The proposed requirements changes the marking of containers in satellite accumulation areas to require both the words "Hazardous Waste" and the identity of the contents. Furthermore, the proposed rule includes an additional labeling requirement to indicate the hazards of the contents. With so many small containers of a wide variety of materials, this rule would be burdensome to university research and teaching areas. It would require the laboratory worker (student, faculty, or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings. (Commenter 0142)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: The proposed requirements in paragraph (a)(5) changes the marking of containers in satellite accumulation areas to require both the words "Hazardous Waste" and the identity of the contents. Furthermore, the proposed rule includes an additional labeling requirement to indicate the hazards of the contents. This rule would be particularly burdensome to university research and teaching areas because these areas house many small containers of a wide variety of materials. It would require the laboratory worker (student, faculty or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings. Such an approach will present a limited, if not inverse value, in a laboratory setting, and in many cases is a duplication of requirements. (Commenter0218)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: §262.15 Satellite accumulation area regulations for small and large quantity generators.

The proposed requirements in paragraph (a)(5) changes the marking of containers in satellite accumulation areas to require both the words "Hazardous Waste" and the identity of the contents. Furthermore, the proposed rule includes an additional labeling requirement to indicate the hazards of the contents. With so many small containers of a wide variety of materials, this rule would be burdensome to university research and teaching areas. It would require the laboratory worker (student, faculty, or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings.

The intent of the proposed rule appears to be two-fold: ensure the contents are listed to aid in waste determination and provide information that could be useful to emergency responders. Subpart K, section 262.206(a)(I)(ii) provides a method to achieve these goals in a manner much less burdensome and much more likely to be accurate by allowing generators to label the containers with "sufficient information to alert emergency responders to the hazards or the contents of the container." We urge EPA to consider this option rather than the proposed requirement. (Commenter 0226)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: Although EPA's goal appears laudable, we believe that this additional labeling requirement goes beyond what is reasonable and practical in a university shop, clinic, laboratory, etc. Implementing this requirement will be burdensome because universities manage so many small containers of hazardous waste. (Commenter 0229)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: Comment: The proposed requirement in 40 CFR 262.15 (a)(5)(iii) to mark each waste container with the hazards of the contents determination for every waste container in each satellite accumulation area [in addition to the words "Hazardous waste" pursuant to 40 CFR 262.15 (a)(5)(i) and other words that identify the contents of the waste container pursuant to 40 CFR 262.15 (a)(5)(ii)] presents similar challenges as discussed above regarding proposed 40CFR62.11 on waste determinations. We support the comments of CSHEMA regarding the difficulties of labeling a variety of materials in small containers in laboratories and the complexity of end users at point of generation being able to verify the precise hazards of waste materials, particularly mixtures. We support CSHEMA's comments to consider the more practical approach currently enumerated in Subpart K. (Commenter 0231)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.

Comment: 3) Strengthening the marking and labeling provisions for containers in SAAs.
EPA's proposed additional labeling requirements add an unnecessary burden on the regulated community that is already required to label hazardous chemicals per Occupational Safety and Health Administration (OSHA) requirements. 

In reviewing the preamble of the proposed rule, it appears that EPA's goal is to improve the immediate availability of hazard information for emergency responders and for the general public. The hazardous waste containers at UVA are in the control of UVA faculty, staff, or students at all times so potential public exposure is not a risk. UVA's EHS and the Charlottesville fire department both have a highly trained hazardous materials response teams, skilled at handling laboratory emergencies. Neither of these groups would benefit from the burdensome additional labelling requirement.

UVA suggests EPA drop the proposed additional labelling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. In lieu of dropping the proposed additional labelling requirements, UVA requests that EPA exempt containers smaller than 55 gallons from the proposed additional labelling requirement. This would reduce the burden on research facilities like UVA, but allow emergency response personnel an added layer of information in cases where the containers are large enough to pose a serious hazard. (Commenter 0242)
EPA Response: It is a misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.
EPA disagrees that emergency responders would not benefit from additional labeling. In fact, emergency responders expressed a preference for identifying the hazards of the contents over identifying the contents in the container. In large part, this expressed preference helped EPA decide to retain the requirement to identify the hazards of the contents and eliminate the requirement to identify the contents of the container.
Finally, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.

Comment: The proposed requirements in paragraph (a)(5) changes the marking of containers in satellite accumulation areas to require both the words ?Hazardous Waste? and the identity of the contents. Furthermore, the proposed rule includes an additional labeling requirement to indicate the hazards of the contents. With so many small containers of a wide variety of materials, this rule would be burdensome to university research and teaching areas. It would require the laboratory worker (student, faculty, or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings. 
The intent of the proposed rule appears to be two-fold: ensure the contents are listed to aid in waste determination and provide information that could be useful to emergency responders. Subpart K, section 262.206(a)(I)(ii) provides a method to achieve these goals in a manner much less burdensome and much more likely to be accurate by allowing generators to label the containers with ?sufficient information to alert emergency responders to the hazards or the contents of the container.? We urge EPA to consider this option rather than the proposed requirement. (Commenter 0282)
EPA Response: EPA disagrees with the commenter, and continues to believe that the requirement is appropriate. Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: The proposed requirements in paragraph (a)(5) changes the marking of containers in satellite accumulation areas to require both the words "Hazardous Waste" and the identity of the contents. Furthermore, the proposed rule includes an additional labeling requirement to indicate the hazards of the contents. With so many small containers of a wide variety of materials, this rule would be burdensome to university research and teaching areas. It would require the laboratory worker (student, faculty or staff) to verify the precise hazards of the waste material (which is often a mixture of several chemicals) and choose the appropriate markings.

The intent of the proposed rule appears to be two-fold: ensure the contents are listed to aid in waste determination and provide information that could be useful to emergency responders. Subpart K, section 262.206(a)(I)(ii) provides a method to achieve these goals in a manner much less burdensome and much more likely to be accurate by allowing generators to label the containers with "sufficient information to alert emergency responders to the hazards or the contents of the container." I urge EPA to consider this option rather than the proposed requirement. (Commenter 0091)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as labpacks, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.
Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: There are some containers where it is not even possible to include the additional labeling requirements due to small size. Lab packs are small containers of hazardous waste in overpacked drums. It would be impractical, if not impossible, to require this information on each small container of material within the overpack. In addition, because of the potential mix of chemicals in the lab pack, it would be difficult to assign a specific identifying name to the overpack container. (Commenter 0131)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.
Comment: Mandate additional labeling for containers of hazardous waste, which will likely exceed space available on the many small vials and containers. (Commenter 0155)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.

Comment: Although EPA's goal appears laudable, we believe that this additional labeling requirement goes beyond what is reasonable and practical in a university shop, clinic, laboratory, etc. Implementing this requirement will be burdensome because universities manage so many small containers of hazardous waste. (Commenter 0166)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.
Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: #4b. The proposed additional label information will not fit on small containers used in research. Hazardous waste containers at a research institution like Purdue are various sizes; some are very small. The physical dimensions of the small containers makes it difficult, if not impossible, to fit a legible label with all the proposed required language. In reviewing the preamble of the proposed rule, it appears that EPA's goal is to improve the immediate availability of hazard information for emergency responders and for the general public. The hazardous waste containers at Purdue are in the control of Purdue faculty, staff, or students at all times so potential public exposure is not a risk. Purdue's fire department has a highly trained hazardous materials response team, skilled at handling laboratory emergencies. Neither of these groups would benefit from the burdensome additional labelling requirement.
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container.(See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.

Comment #4c. Some containers are already labelled with manufacturer's information; this should be acceptable. It is common in research labs for expired chemical reagents in their original containers to be placed into satellite accumulation areas for disposal due to the chemicals being out of date or unneeded. These reagents typically already have the manufacturer's label affixed to the container indicating the chemical name and often the hazard as well. However, under the proposed rule the container would also be required to be labeled as hazardous waste, which seems unnecessary since the waste is already in a satellite accumulation area. Purdue believes that it would be sufficient to label each container with the chemical name or the words "hazardous waste." Employees are required to receive OSHA Hazard Communication Standard (HCS) training or training under the OSHA Laboratory Standard. For individuals covered under the HCS, Safety Data Sheets (SDS) must be readily accessible and extensive information on the chemical(s) is required to be provided by the manufacturer. For those covered by a Chemical Hygiene Plan training on chemical hazards is required and in most cases the SDS is available. Under these systems employees should be familiar with the hazards of any waste and we believe requiring additional labeling is duplicative. (Commenter 0208)
EPA Response: If a hazardous waste is in a container that already has the appropriate marking and labeling (e.g., the hazardous waste is an unused commercial chemical product that is in its original container with an intact label), the existing marking and labeling would be sufficient. The generator would not need to duplicate the marking and labeling, assuming the original label contains the information necessary to comply with the marking and labeling requirements. 
Moreover, EPA encourages colleges and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: However, we do not support the requirement for this degree of labelling for materials in satellite accumulation areas, particularly in laboratory settings with laboratory scale materials.


Proposed Revision to 40 CFR Part 262 - Revisions to Satellite Accumulation Area
Regulations for SQGs and LQGs (40 CFR 262.34(c))
Strengthening the Marking and Labeling Provision for Containers in SAAs

BI appreciates EPA's effort to enhance labeling requirements in order to better identify the hazards and increase awareness to workers and others who might come into contact with hazardous waste containers.

BI generates RCRA regulated wastes from many research and development laboratories. In these laboratories, many small containers are generated as waste. These wastes would commonly become "lab packs" at shipment. The proposed modification to the marking and labeling requirements for Satellite Accumulation Areas (SAA) would require:
(1) The words "Hazardous Waste";
(2) Other words that identify the contents of the containers; and
(3) An indication of the hazards of the contents of the container.

BI supports parts 1 and 2 of the proposed modification. BI requests that EPA revisit part 3 of the proposed requirement with respect to SAAs that are located in research and development laboratories. Laboratory operations utilize small quantities of materials in small containers. The small size of bottles and vials will make additional labeling difficult. The large number of small containers that may need additional labeling would be burdensome (i.e. any bottles generated in the laboratory that are not in original manufacturers bottles). Most of these bottles will be shipped for treatment in a "lab pack" that would only require labeling on the outer container. BI believes that following the labelling requirements in items (1) & (2) above will meet EPA's intention to better identify the hazards and increase awareness to workers and others who might come into contact with hazardous waste containers in the laboratory setting. (Commenter 0236)
EPA Response: EPA disagrees with the commenter and believes that marking and labeling is critical at the point of generation where the wastes are initially generated. Although labeling may appear to be an inconsequential "paperwork" exercise, it is, in fact, vitally important to ensuring that waste is identified and managed properly. Without proper labeling, hazardous waste may be mismanaged as non-hazardous waste, or as the wrong type of hazardous waste, which could cause harm to human health and the environment.
In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.

Comment: Additionally, some hazardous waste containers at a research institution like UVA are very small. The physical dimensions of small containers makes it difficult, if not impossible, to fit a legible label with all the proposed required language. (Commenter 0242)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.

Comment: EPA is proposing a new requirement to label all hazardous waste containers in satellite accumulation areas with the words "hazardous waste", a description of the waste, and an indication of the hazard from the proposed addition of 40 CFR 262.15(a)(5) and 40 CFR 262.17(a)(5). These additional labelling requirements are duplicative of other regulatory programs and difficult to implement as proposed. Detailed comments follow: 

The proposed additional labelling requirements duplicate exist regulatory programs: EPA's proposed additional labeling requirements add an unnecessary burden on the regulated community that is already required to label hazardous chemicals per Occupational Safety and Health Administration (OSHA) requirements. 

The proposed additional label information will not fit on small containers used in research. Hazardous waste containers at a research institution range in size from milliliter to liter/gallon size. The physical dimensions of the small containers makes it difficult, if not impossible, to fit a legible label with all the proposed required language. In reviewing the preamble of the proposed rule, it appears that EPA's goal is to improve the immediate availability of hazard information for emergency responders and for the general public. The hazardous waste containers at Northeastern are in the control of Northeastern faculty, staff, or students at all times so potential public exposure is not a risk. The Boston Fire Department has a highly trained hazardous materials response team, skilled at handling laboratory emergencies. Neither of these groups would benefit from the burdensome additional labelling requirement. 

Some containers are already labelled with manufacturer's information; this should be acceptable. It is common in research labs for expired chemical reagents in their original containers to be placed into satellite accumulation areas for disposal due to the chemicals being out of date or unneeded. These reagents typically already have the manufacturer's label affixed to the container indicating the chemical name and often the hazard as well. However, under the proposed rule the container would also be required to be labeled as hazardous waste, which seems unnecessary since the waste is already in a satellite accumulation area. Northeastern believes that it would be sufficient to label each container with the chemical name or the words "hazardous waste." Employees are required to receive OSHA Hazard Communication Standard (HCS) training or training under the OSHA Laboratory Standard. For individuals covered under the HCS, Safety Data Sheets (SDS) must be readily accessible and extensive information on the chemical(s) is required to be provided by the manufacturer. For those covered by a Chemical Hygiene Plan training on chemical hazards is required and in most cases the SDS is available. Under these systems employees should be familiar with the hazards of any waste and we believe requiring additional labeling is duplicative. (Commenter 0249)
EPA Response: It is a misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.

In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as labpacks, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.
If a hazardous waste is in a container that already has the appropriate marking and labeling (e.g., the hazardous waste is an unused commercial chemical product that is in its original container with an intact label), the existing marking and labeling would be sufficient. The generator would not need to duplicate the marking and labeling, assuming the original label contains the information necessary to comply with the marking and labeling requirements. 

Comment: In §262.15(a)(5), EPA's proposed labeling and marking requirements present difficulty in the SAA setting. Marking a container with a "hazardous waste" label along with (for instance) the U.S. Department of Transportation (DOT) proper shipping name would likely take place using EPA's existing "hazardous waste" pre-transport markings [Footnote 6: 40 CFR 262.32.], which are widely commercially available and already in the possession of most generators. These labels are typically 6 inches square. DOT labels are 4 inches square. This labeling combination is fine for 55-gallon drums, but problematic if the generator chooses to accumulate waste in smaller containers, e.g. one-gallon jugs. In addition, EPA has not indicated that simply marking containers with the words "hazardous waste" has resulted in safety or environmental issues; the preamble simply states that "...these proposed changes will alert workers, emergency responders, and others to the potential hazards posed by [the containers'] contents." This philosophy is largely unsubstantiated, as the workers near SAAs are already familiar with the processes generating wastes and the content of containers. Emergency responders are unlikely to approach containers to identify them during an emergency; instead, information available from the facility is used and conservative assumptions applied. We are not sure what "others" are likely to be alerted by EPA's expanded approach. What we know from our experience in Washington State (which has a requirement to mark SAA containers with the major risk(s) of the waste) is that these requirements engender a litany of alleged violations based on field interpretation by inspectors. Washington's Department of Ecology states that "[i]nadequate labeling is THE most common violation found during compliance inspections." [Footnote 7: Ecology, "Focus on Dangerous Waste Management: Risk Labels Required for Dangerous Waste Containers", Publication Number 12-04-016, June 2013.] [emphasis in original] Since Washington State's risk labeling regulations have been unchanged since 1984, the fact that the regulated community is still not clear what is required bodes ill for EPA's attempt to embrace the concept. Unless EPA has identified a specific need for this requirement, and wishes to shift its enforcement resources to assuring the proper, detailed labeling of containers in SAAs, we recommend that this requirement be simplified to simply require the words "hazardous waste" (as in the existing rule) with the use of the DOT label (when a waste is DOT-regulated) or the label's words (e.g. "corrosive") as a potential added marking.

o 262.16(b)(6). See our comment on 262.15(a)(5). We believe this requirement is unnecessarily burdensome and impractical. (0078)
EPA Response: The Agency has simplified the marking and labeling requirements for hazardous wastes accumulated in containers in a SAA to read: (5) A generator must mark or label its container with the following: (i) The words "Hazardous Waste," and (ii) 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704). We believe these changes are responsive to this commenter. 

Comment: 268.50(a)(2)(I): See comment on 262.15(a)(5). We believe this labeling requirement is unnecessarily burdensome. (0078)
EPA Response: See preceding response to comment.
Comment: 47. Regarding proposed revisions to Part 268  -  LDR  -  Section XII., page 57980: Colorado disagrees with this proposal for increased labeling and marking requirements for the same reasons stated above. (0085)
EPA Response: In response to comments, the Agency has simplified and reduced the marking and labeling requirements for TSDFs as follows:(i) Each container is clearly marked to identify its contents and with:(A) The words "Hazardous Waste;" (B) The applicable EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C and D of part 261 of this chapter; or use a nationally recognized electronic system, such as bar coding, to identify the EPA hazardous waste number(s).(C) 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704) and (D) The date each period of accumulation begins. 


Comment: In 262.232 of the proposed rule, the labeling requirements for episodic waste do not allow time to evaluate the waste. When waste is accumulated during a clean out, it is commonly lab packed by a contractor who is an expert in chemical compatibility and RCRA regulations. It is not unusual to find waste during a cleanout event that is not labeled or otherwise identifiable. In cases like this it will be difficult to label the containers with the contents and hazard at the moment it is determined to be a waste. (0096)
EPA Response: The generator is responsible for making an accurate hazardous waste determination at the point of generation. At that point, if the waste is hazardous the generator must identify and mark the container with its hazards using one of the specified options and initiate the process of identifying the RCRA waste codes and mark the container with those codes in compliance with 40 CFR 262.32 (b). We believe these changes are responsive to this commenter. 

Comment: 14. Section X. Proposed Revisions to 40 CFR Part 263 -- Standards Applicable to Transporters of Hazardous Waste
NJDEP supports changing the marking and labeling requirements for transporters handling hazardous waste at transfer facilities to be consistent with the proposed changes for marking and labeling conditions for containers for SQGs, for LQGs, and in SAAs. (0108)
EPA Response: The Agency has simplified and reduced the requirements for transporters of hazardous wastes, as follows:(b) When consolidating the contents of two or more containers with the same hazardous waste into a new container, or when combining and consolidating two different hazardous wastes that are compatible with each other, the transporter must mark its containers of 119 gallons or less with the following information:(1) The words "Hazardous Waste;" (2) The applicable EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C and D of part 261 of this chapter, or in compliance with § 262.32(c). 
Comment: 45. Regarding proposed revisions to Part 263 standards applicable to transporters of hazardous waste  -  Section X., pages 57977-57978: Colorado disagrees with the proposed increased labeling and marking requirements for the same reasons stated above, Colorado believes these additional labeling requirements are unnecessary. (Commenter 0085)
EPA Response: The Agency has simplified and reduced the requirements for transporters of hazardous wastes, as follows: (b) When consolidating the contents of two or more containers with the same hazardous waste into a new container, or when combining and consolidating two different hazardous wastes that are compatible with each other, the transporter must mark its containers of 119 gallons or less with the following information:(1) The words "Hazardous Waste;" (2) The applicable EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C and D of part 261 of this chapter, or in compliance with § 262.32(c). 
Comment: 15. Section XII. Proposed Revisions to 40 CFR Part 268 -- Land Disposal Restrictions
NJDEP supports regulations on marking and labeling of containers by the owner/operator of a hazardous waste TSDF in § 268.50 to be consistent with the proposed marking and labeling changes for LQGs, for SQGs, for SAAs, and for transfer facilities.120 

NJDEP also supports requiring containers be labeled with the applicable EPA hazardous waste number(s) (EPA hazardous waste codes), to help the TSDF comply with the LDR regulations. (0108)
EPA Response: In response to comments, the Agency has simplified and reduced the marking and labeling requirements for TSDFs as follows: (i) Each container is clearly marked to identify its contents and with:(A) The words "Hazardous Waste;" (B) The applicable EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C and D of part 261 of this chapter; or use a nationally recognized electronic system, such as bar coding, to identify the EPA hazardous waste number(s).(C) 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704) and (D) The date each period of accumulation begins. 

Similarly, TSDFs will need to comply with 40 CFR 262.32 should it generate a hazardous waste and ships the waste off-site for subsequent treatment and disposal. 

Comment: ETC also recommends that the agency's definition of "containers" excludes rail cars and other transport devices from EPA's enhanced labeling requirements. Similarly, ETC recommends revising the requirements for 40 CFR § 268.50(a)(2)(i) to allow for any containers to optionally comply with 40 CFR § 268.50(a)(2)(ii) at a TSD facility. (0134)

EPA Response: Regarding certain bulk transport containers, at 40 CFR 262.32(b), the Agency states, "Before transporting hazardous waste or offering hazardous waste for transportation off site, a generator must mark each container of 119 gallons or less used in such transportation with the following words and information in accordance with the requirements of 49 CFR 172.304:." Therefore, certain bulk transport containers are excluded from the enhanced container labeling requirements. 

As for allowing any containers to optionally comply with 40 CFR § 268.50(a)(2)(ii) at a TSD facility, EPA does not think it is appropriate for TSDs to mark containers as they would tanks, as key pieces of information would be lacking, including the words "Hazardous Waste," waste codes, and an indication of the hazards of the contents.

Comment: Your basis language in XII for revising the LDRs in 40 CFR 268.50 doesn't recognize that the legitimate purpose of labeling the date each period of accumulation begins is to create evidence to facilitate assigning who has the burden of proof to demonstrate that storage is solely for the statutorily authorized purposes or if not that it is prohibited per RCRA §3004(j). (0156)
EPA Response: In response to comments, the Agency has simplified and reduced the marking and labeling requirements for TSDFs as follows:(i) Each container is clearly marked to identify its contents and with:(A) The words "Hazardous Waste;" (B) The applicable EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C and D of part 261 of this chapter; or use a nationally recognized electronic system, such as bar coding, to identify the EPA hazardous waste number(s).(C) 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704) and (D) The date each period of accumulation begins.
The Agency is trying to promote consistency in container marking and labeling throughout the cradle to grave management of hazardous waste. Dating of the container for supporting the objectives of the storage prohibition is already required and will remain. 

Comment: o Container Labeling (Section 5.10.2 below). EPA's proposal to require detailed markings and labels on accumulation containers is unworkable for the retail industry, where such containers generally hold only small quantities of a variety of products, typically in the original product packagings. The Agency should allow retailers to mark/label containers more generically (as under the existing RCRA rules). (0168)
EPA Response: In keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as labpacks, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, as commenter 0079 suggested, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements. 
Similarly, if a hazardous waste is in a container that already has the appropriate marking and labeling (e.g., the hazardous waste is an unused commercial chemical product that is in its original container with an intact label), the existing marking and labeling would be sufficient. The generator would not need to duplicate the marking and labeling, assuming the original label contains the information necessary to comply with the marking and labeling requirements. 
Comment: 5.10.2 EPA's Proposal to Require Detailed Marking/Labeling of Hazardous Waste Containers Is Unnecessary and Unworkable in the Retail Sector

EPA has proposed to require hazardous waste generators to mark and label their containers not only with the words "Hazardous Waste," as under the existing regulations, but also with (a) words that identify the contents of the container, (b) an indication of the hazards of the contents, and, in some cases, (c) the applicable EPA hazardous waste codes. See generally 80 Fed. Reg. at 57,948-50. While these requirements might make sense in the context of a manufacturing facility, they are unnecessary and unworkable in the retail setting.

At retail facilities, waste containers generally contain very small quantities of a variety of products, typically in the original product packagings. For example, a 55-gallon drum could contain as many as 300 distinct items, or even more. Unless generic markings/labels are allowed (as under current law), retailers might have to mark each container with numerous waste descriptors and warnings. Multiple markings/labels of this sort would not provide any meaningful information to employees, transporters, downstream handlers, or government inspectors  -  especially since the packagings on the products inside the containers would likely give them any additional information they might need. A requirement for detailed markings/labels on the containers would only serve to create substantial new burdens on retailers, and potential new opportunities for minor technical noncompliance that could cause stores to be reclassified as TSDFs (as discussed in Section 5.3 above).

In this regard, it is instructive to note that U.S. Department of Transportation allows containers of mixed products of the sort generally handled by retailers to be marked simply as "consumer commodities" (or "waste consumer commodities," if the materials are RCRA hazardous wastes subject to manifesting). See, e.g., 49 C.F.R. §§ 173.150  -  173.155 (allowing certain limited quantity packages of hazardous materials to be designated as consumer commodities), and 173.156 (providing for reduced marking and other requirements when consumer commodities are transported from a retail outlet to a disposal facility). EPA should similarly allow retailers to use generic markings to indicate the contents and hazards of their wastes (although we question whether this really adds anything to the existing requirement to mark the containers with the words "Hazardous Waste"). Indeed, the Agency should take this approach even if it requires other generators to provide more specificity, perhaps by exempting retail facilities from the new enhanced marking/labeling requirements. (0168)


EPA Response: The Agency has simplified the marking and labeling requirements for hazardous wastes accumulated in containers in a SAA and CAA to read: (5) A generator must mark or label its container with the following: (i) The words "Hazardous Waste," and (ii) 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 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704). 
Also, in response to comments, the Agency has simplified the proposed marking and labeling for containers in SAAs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. One commenter suggested that EPA's regulations should not interfere with a practice that is often already done as a best management practice. Another commenter suggested that we allow generators to choose between identifying the contents of the container and identifying the hazards of the contents. (Department of Energy, EPA-HQ-RCRA-2012-0121-0123.) EPA considered this option, but concluded the potential for interpretation and implementation problems would remain for those generators that chose the option of identifying the contents of the container and, therefore, decided against this approach. Nevertheless, while the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.
We believe these changes are responsive to this commenter. 

Comment: 7. Restricted Wastes Marking and Labeling Requires Container Marking and Labeling for restricted wastes that are consistent with the labeling and marking requirements for generators.
DTSC supports the amendments to 40 CFR 268.50 regarding container marking and labeling. (0174)
EPA Response: The Agency appreciates the above comment.
Comment: While Veolia understands the need for conforming changes to the transporter standards for marking and labeling of containers, EPA should not require transporters to add waste codes to containers at transfer facilities for the reasons stated above. The existing procedures in place at the TSD facilities to ensure compliance with the LDR requirements beginning at the time of contracting with the generator for treatment and disposal of the waste, and continuing through waste profiling, transportation and receipt of the shipment, has been proved to be sufficient. Requiring the transporter to put waste codes on drums in transfer facilities is of little to no value and will only disrupt transfer facility operations. (0181)

EPA Response: The only time a transporter should need to add RCRA waste codes to a container is if in the process of consolidating hazardous wastes from different containers, it generated a new hazardous waste.

Comment: :: Rail Cars used to accumulate and transport HW do not have to be labeled HW in transit. Issue with residue cars that are not RCRA empty. EPA has proposed to revise the container marking and labeling standards to be consistent with the proposed labeling and marking standards for SQG and LQG containers. How are rail cars carrying regulated amounts of HW residue marked in a manner to be apparent to regulator and to railroad that receives a load of "residue" in a rail car?

EPA Response: The Agency is deferring to DOT regulations when it comes to the transportation of hazardous wastes and hazardous waste residues in rail cars. The regulator and railroad will have to use the hazardous waste manifest to determine that the rail car contains a hazardous waste residue. 

:: 263.12 - Transfer facilities include areas where loaded trailers and bulk tankers are parked, as well as rail sidings and transfer yards. In some cases, the containers are never unloaded from the initial trailer. Some sites transfer containers directly from one trailer into another trailer intended for transport to different area. Some transfer facilities are warehouse operations. These containers are all considered to be hazardous materials stored in the normal course of transportation by USDOT, and it is not clear why EPA is proposing additional markings, without differentiating between bulk and non-bulk packagings. Non-bulk packagings are already labeled with the words "hazardous waste." In addition, the DOT shipping names usually include the primary EPA waste numbers that apply to the material. (0214)

EPA Response: The Agency is differentiating between bulk and non-bulk shipping at 40 CFR 262.32. Since hazardous wastes shipped off-site must meet DOT marking and labeling requirements, there really is no change from existing practices.
Comment: 57978
:: Any change to the container labeling requirements for transfer facilities needs to take into account the different labeling and marking requirements for containers over and under 119 gallons in size. Also remember that 40 CFR 262.32 was written prior to the widespread use of IBC totes, bags and boxes for transporting waste. Recommend that 40 CFR 262.32(b) markings should be applied to all IBCs.
:: In addition, EPA needs to consider how intermediate rail transporters will add these markings to cars that are stored for less than 10 days during the normal course of transport. What kind of training will be required for staff in addition to USDOT training?
EPA Response: The Agency is taking into account the different labeling and marking requirements for containers over and under 119 gallons in size at 40 CFR 262.32 (b). The Agency is unaware of the use of IBCs, but generators and transporters need to follow all applicable DOT marking and labeling requirements when shipping a hazardous waste off-site.. 

57978
:: EPA is proposing to require that containers ...at transfer facilities be labeled prior to being transported off site. This requirement would be in violation of USDOT and USEPA requirements. USEPA requires the generators to label and mark the containers prior to transport, and transfer facilities cannot be designated facilities on the manifests. These are pre-transport functions as defined at 49 CFR 171.1(b) Transfer facilities store a material incidental to movement per 49 CFR 171.1(c)(4) Storage incidental to movement of a hazardous material. Storage of a transport vehicle, freight container, or package containing a hazardous material by any person between the time that a carrier takes physical possession of the hazardous material for the purpose of transporting it until the package containing the hazardous material has been delivered to the destination indicated on a shipping document, package marking, or other medium, or, in the case of a private motor carrier, between the time that a motor vehicle driver takes physical possession of the hazardous material for the purpose of transporting it until the driver relinquishes possession of the package at its destination and is no longer responsible for performing functions subject to the HMR with respect to that particular package.
:: Storage incidental to movement includes -- 
o Storage at the destination shown on a shipping document, including storage at a transloading facility, provided the original shipping documentation identifies the shipment as a through-shipment and identifies the final destination or destinations of the hazardous material; and
o A rail car containing a hazardous material that is stored on track that does not meet the definition of "private track or siding" in §171.8, even if the car has been delivered to the destination shown on the shipping document.
:: Storage incidental to movement does not include storage of a hazardous material at its final destination as shown on a shipping document.
:: Requiring a transporter to alter a label or marking is contrary to the provisions of 49 CFR 171.2(l), except for transporters that mix hazardous waste of different DOT shipping description by placing them in a single container. 40 CFR 263.10(c) already requires these transporters to comply with Part 262 standards, so it is not clear why an additional regulatory reference must be added to Part 263. (0214)
EPA Response: The Agency is not requiring a transporter to do anything different than what it does now unless, as part of any consolidation activities at a transfer facility, the transporter mixes wastes deriving a new hazardous wastes in which case it must make a hazardous waste determination and comply with all applicable RCRA and DOT regulations when shipping the waste off-site. 
Comment: 57980
:: 268.50 - Requiring container labels for wastes with multiple waste codes and underlying hazardous constituents is excessive, at least when dealing with bulked waste in rail cars and cargo tanks. In general, this results in waste being over classified. TSDFs are supposed to have an operating record that allows incoming waste to be tracked through treatment, storage and disposal. Further, incompatible wastes are not allowed to be stored together. TSDFs will have adequate information on the nature of the materials provided on the incoming manifests and waste profiled. Many of them apply individual bar codes to each container received, which provides for accurate tracking and recordkeeping.
:: If the TSDF is a temporary storage location, and the waste will be transferred elsewhere for ultimate treatment and disposal, removing and replacing labels and markings becomes an opportunity for error to creep in to the system. (0214)
EPA Response: Generators (and transporters as necessary) may use electronic profiling information, such as a bar coding system, in lieu of marking containers with the applicable hazardous waste codes.
Comment: Section X. (Page 57977): Containers at transfer facilities are in transit and subject to the requirements of container labeling during transport found in US DOT 49 CFR. In some States, containers tend to remain in/on the transport trailers when they are at a transfer facility, so requiring a transfer facility to label those containers in accordance with this proposed language would require extra handling of said containers, potentially resulting in mismanagement (e.g., spills and releases). Some States are concerned that the proposed labeling may pose an excessive burden on transporters operating transfer facilities that store hazardous waste containers for 10 days or less as those labels and marking may need to be removed prior to continued transport to be compliant with US DOT 49 CFR. Of particular concern would be the allowance for identifying the contents of the container different than the US DOT required marking found in 49 CFR Part 172 subpart D and risk labeling different than required in 49 CFR Part 172, subpart E. In addition, for identification of risk, one State recommends removing the following language: "Transfer facilities also may use any other marking and labeling commonly used nationwide in commerce that would alert workers and emergency responders to the nature of the hazards associated with the contents of the containers." This provision is overly broad and may cause confusion in the regulated community as well as for the regulators determining compliance with the requirements for transfer facilities.

One State supports the proposal to require transporters to mark and label containers at transfer facilities. This should not be a burden on the transporter since the generator is required to label and mark their containers prior to shipment off-site. (0217)
EPA Response: In response to comments, we have simplified and clarified the marking and labeling requirements for transporters. 40 CFR 263.12 as finalized, reads: (b) When consolidating the contents of two or more containers with the same hazardous waste into a new container, or when combining and consolidating two different hazardous wastes that are compatible with each other, the transporter must mark its containers of 119 gallons or less with the following information:
(1) The words "Hazardous Waste;"
(2) The applicable EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C and D of part 261 of this chapter, or in compliance with § 262.32(c).

Comment: Section XII (Page 57980): One State agrees with the proposed changes to §268.50 for consistency in labeling of containers by owner/operators of hazardous waste TSDFs. (0217)
EPA Response: The Agency appreciates this comment.
Comment: 15. Strengthening the Marking and Labeling Provisions for Containers in SAAs  -  p. 57964
The department agrees with these changes to better identify the hazards of the waste which will reduce both short and long term risks of managing hazardous waste for facility personnel and others. Please see additional comments on labeling in item 18 below. (0223)
EPA Response: The Agency appreciates this comment.
Comment: 80 FR 57977, column 3 (X.)
Proposed Revisions to 40 CFR Part 263 -- Standards Applicable to Transporters of Hazardous Waste
The MPCA supports the general intent of the proposed requirements for transporters of hazardous waste holding that waste at '10-Day Transfer Facilities' ensure that it is labeled as described for the reasons discussed by the EPA at 80 FR 57977-57978. However, the MPCA is concerned that the only information directly available to transporters if they encounter a container at their transfer facility that is unlabeled will be the hazardous waste manifest accompanying that container. Unlike the original generator of the hazardous waste, who if not the original offeror of the waste to the transporter was at the very least the entity commencing the transport chain, transporters should not be assumed to have any foundational knowledge about the wastes they transport nor do they have the responsibility to independently determine such (unlike generators, who by the very act of causing a waste to be created, are not only assumed to have at least some knowledge regarding the waste based on its causal process, but are also explicitly assigned complete liability for determining not only its identity but all its hazardous attributes. Thus the MPCA believes that simply requiring transporters to `label' containers is inappropriate. Instead the MCPA recommends that the proposed requirement be revised to instead prohibit transporters from accepting hazardous waste containers for transport that are not already labeled fully as required. Thus, the only labeling required of the transporters themselves would be, as noted by EPA, when it consolidates or overpacks containers such that all that would be necessary would be moving or duplicating previously existing labels onto a new container. (0232)
EPA Response: The Agency agrees with MPCA's comments for this provision and has clarified the respective marking and labeling requirements for both generators and transporters.
Comment: Page 57965:
3. Strengthening the Marking and Labeling Provisions for Containers in SAAs

DC cannot find the proposed text at 262.15(a)(1)(iv), but reviewed the proposed text at 262.15(a)(5).

DC supports the proposed requirement that containers in SAAs be marked to identify the contents and associated hazards. 
Pages 57977-78:
X. Proposed Revisions to 40 CFR Part 263 -- Standards Applicable to Transporters of Hazardous Waste

DC supports the proposed revision.
Page 57980:
XII. Proposed Revisions to 40 CFR Part 268 -- Land Disposal Restrictions

DC supports the proposed revision. (0248)

EPA Response: The Agency appreciates the support of this commenter regarding these provisions.
Comment: - 268.50 (storage of land-disposal-restricted wastes) now includes in section (a)(2)(i) new items (B) through (D) that specify the new waste-related information that must be on container labels beyond the current requirements of the section (contents identification) and the requirement in 262.34(c)(1)(ii) for "Hazardous Waste" or contents identification. Certain of the items cited (e.g. DOT hazard class labels) are required by other regulations and so need not be restated here. The existing requirements for container labeling are adequate and should not be made more cumbersome; each facet of the new requirements is yet another way that generators can inadvertently receive the severe punishment of forced coverage by the TSD regulations;
(0263)
EPA Response: In response to comments, the Agency has both modified and simplified the marking and labeling requirements for TSDFs. TSDFs should not have a problem complying with these requirements. 
Comment: :: Responsibility for ensuring that hazardous waste materials are appropriately and correctly marked should lie with the generators of hazardous waste, and not with carriers, whose primary responsibility is to ensure its safe transport via public highway; (0283)
While ATA supports the marking of hazardous waste containers, the rule should make it clear that shippers of hazardous waste are responsible for ensuring that hazardous waste containers are properly marked during transport. (0283)


EPA Response: The Agency agrees with the above comments and have so indicated in the final rule. 

Section 6 - Episodic Generation

6 General Comments
(a) Comment: A number of commenters expressed their support for allowing CESQGs and SQGs to remain in those generator categories when they experience an episodic waste generation event (63, 76, 77, 81, 88, 91, 93, 98, 99, 101, 107, 110, 113, 116, 117, 0120, 123, 126, 131, 132, 133, 135, 136, 137, 141, 145, 155, 159, 163, 164, 172, 173, 174, 178, 181, 185, 192, 196, 202, 205, 206, 212, 216, 217, 219, 220, 224, 225, 226, 231, 235, 240, 241, 243, 244, 248, 250, 253, 256, 257, 258, 260, 262, 263, 282, 285). Some of the reasons given for this support included encouraging facilities to clean-out inventories of obsolete materials; making it easier for EPA to maintain an accurate database of EPA ID numbers; reducing the amount of hazardous materials a generator keeps in stock; assisting with relocations of manufacturing processes; allowing episodic generation in retail, pharmaceutical, and/or educational sectors where wastes do not present the same risk of release to the environmental as typical industrial hazardous wastes; and promoting flexibility and efficiency without sacrificing environmental protection. (63, 99, 101, 107, 123, 133, 145). SOCMA noted that batch and specialty chemical facilities are inherently more likely to experience these types of episodic events and provided examples (192). The American Gas Association also explained why natural gas pipelines are more likely to experience episodic generation events in their compliance with pipeline inspection and integrity management requirements (213).
(a) EPA Response: EPA agrees with the commenters and is finalizing this provision with some revisions, as described in the preamble to the final rule. In general, EPA has determined that requiring a VSQG to comply with the additional SQG or LQG regulations or an SQG to comply with the LQG regulations for the month its hazardous waste exceeded the quantity limits during an irregular episodic event (planned or unplanned) is unnecessary to protect human health and the environment. By complying with the specified conditions, the generator would be able to maintain its current generator category and would not be required to comply with the more stringent site-wide regulations applicable to the higher generator category. EPA currently estimates that approximately 1,270 to 2,540 generators may take advantage of this provision once it is adopted by the authorized states.
(b) Comment: Some commenters, particularly several states and Earthjustice, did not support the proposed provision for CESQGs and SQGs to remain in those categories even when they generate higher amounts of hazardous waste due to an episodic event (85, 125, 229, 232, 264). In particular, Minnesota Pollution Control Agency (MPCA) argued that the "routine" waste generation events would more likely involve personnel not familiar with the waste and are more likely to lead to errors and mishandling or releases (232). MPCA is also concerned that the episodic generation provisions would also encourage stockpiling of unusable materials and/or delay of inventory checks (232). Hennepin County (MN) also argued that the proposed episodic generation provisions go too far and too complex. Hennepin County stated they think episodic events should be limited to those that cannot be predicted and are not anticipated to occur again. This would allow EPA to simplify the episodic generation regulations overall (229). Earthjustice opposed any allowance of episodic events. They argued allowing CESQGs and SQGs that exceed the generation levels to continue to operate at the lower levels is unlawful and runs counter to EPA's efforts to improve compliance and environmental protection (264). The RCRAInfo Site ID Expert Group did not support allowing episodic generation because uneven national adoption would result in inconsistent data nationally. They argued that episodic LQGs should not be exempt from filing a Biennial Report (BR) since this will result in an incomplete national picture of hazardous waste generation and management (125).
(b) EPA Response: EPA disagrees with those commenters that do not support this provision. EPA has determined that the provision is protective of human health and the environment, as the conditions included in the provision address management and final disposition of the hazardous waste at a RCRA-designated facility. In addition, EPA is finalizing episodic generation with some revisions to address some of the comments. For example, EPA does not believe that allowing episodic management of the hazardous waste under the RCRA regulations will result in management of the hazardous waste by employees who are inexperienced with handling that type of material or additional releases of hazardous waste to the environment. However, the notification conditions in the provision provide an additional layer of oversight for facilities that are using the episodic generation provisions and require the generator to consider its plan for safe management of the waste while completing the notification. 
EPA has simplified the provision by removing the potential for a petition to extend the duration of an event and has, instead, lengthened the allowed duration for all events from the proposed 45 days to 60 days. In addition, in the final rule, only one planned episodic event would be allowed per year, limiting the number of times a facility could plan ahead to generate more than its standard levels of hazardous waste. EPA does believe that it is appropriate for episodic events include irregular planned events, such as tank cleanouts. EPA does not believe that this will encourage regular stockpiling of these wastes, as the commenter describes, but would rather encourage scheduled cleanouts of areas that may otherwise continue to be filled indefinitely with unwanted materials.
Regarding data management of hazardous wastes, EPA has determined that the national data on hazardous waste is not comprehensive and any increased inconsistencies from allowing facilities operating under episodic generation to not complete and submit a Biennial Report will not significantly impact the quality of the data as a whole and that the potential benefits of the episodic generation provision are substantial enough to finalize the provision even in light of this comment. The conditions for the provision do require that the facilities identify themselves as using the provision, which allows for important state oversight. 
(c) Comment: The waste management industry requested EPA clarify that generators must continue to manage their waste properly and not purposefully mismanage it in a way to claim an episodic event has occurred (134, 243).
(c) EPA Response: EPA agrees with the commenter that episodic generation cannot be used as an excuse to mismanage waste and then dispose of it under an episodic event. Notification to EPA (or the authorized state) serves as a check on facility's that may be abusing this provision to get around proper management of hazardous waste. 
(d) Comment: The Retail Industry Leader s (RILA) expressed their appreciation for EPA's efforts associated with episodic generators but were concerned that the proposal fell short in several aspects. RILA discussed the "natural variability" in waste generation rates in the retail sector and urged EPA to allow retailers to determine their generator status based on average generation rates over time (168). Another retail commenter suggested that EPA allow generators, or at least, retail generators, to "reasonably" use their business knowledge to determine their generator status by averaging their yearly waste generation totals. They argue that the proposed episodic generation provisions do not fit the retail sector. They give an example of their stores averaging 2-3 generator status changes per year, usually once from CESQG to SQG and then back to CESQG again (233).
(d) EPA Response: As discussed elsewhere in this document, EPA has determined that determining generation status through averaging yearly generation months over 12 months does not meet the standard for determining generator status as mandated by the RCRA statute and would not be appropriate for this purpose. In addition, EPA has found that if a generator is operating at a higher generator status for 3 episodic events per year, those do not qualify as "episodic" and the generator actually belongs in the higher generator status. Under the final rule provisions, three episodic events of 60 days each would result in generation levels for half of the year being considered "episodic," which EPA does not consider consistent with the rationale behind the provision. Although EPA does believe that the episodic generation provision could be useful to some members of the retail industry, the provision is designed for the entire generation universe and must be evaluated in that light. 
(e) Comment: One state commented that the proposed episodic event requirements did not achieve the stated goal of providing greater program flexibility in that the requirements for CESQGs for an episodic event actually exceed the general SQG requirements in several instances, particularly notification and the 45-day time limit (214). Another state is concerned that the episodic generation provision is too cumbersome for generators to follow and comply with and too difficult for the states to monitor and enforce (217).Several commenters, while supportive of the concept of episodic generation events, stated that some of the proposed conditions were overly restrictive (241, 263). In particular, one commenter said the accumulation time limit and extension request procedures were too restrictive and argued that the Subpart K (alternative standards for managing hazardous waste at academic labs) model where a running 90-day average of waste generation volumes is used might be a better way to calculate waste generator classification (244).
(e) EPA Response: EPA's guide in structuring the episodic generation provisions was to ensure management of the hazardous waste that was protective of human health and the environment. EPA considers the final conditions for management of the hazardous waste, notification, and recordkeeping necessary to ensure safe management of hazardous waste under the episodic generation provision. EPA received significant positive comment on this provision and is finalizing it with some changes, but does not consider the conditions in the final rule to be overly cumbersome or restrictive. EPA has extended the basic duration of an episodic event to sixty days to accommodate comments regarding the usefulness of the provision to generators, but also notes that a generator would have to option to operate under episodic generation or to operate as an SQG if it believes that is a better option for management of hazardous waste. In addition, EPA has removed one of the proposed petitions to be handled by EPA or the authorized state (the extension of an episodic event), which will simplify implementation of the provision by the states. EPA has determined that it is not appropriate to generally revise the long-standing method for classifying monthly generator status in the RCRA regulations to a 90-day average from being based on the monthly generation levels, as described in the RCRA statute. 
(f) Comment: One commenter stated that the regulatory language in 262.14(e) should reference the generation or the generation and accumulation of hazardous waste in accordance with subpart L instead of just the accumulation of hazardous waste. 
(f) EPA Response: EPA agrees with the commenter and has made this revision in the final rule. 
(g) Comment: One commenter suggested that EPA revise the episodic generation provision to allow for greater accumulation of hazardous waste even if the levels of monthly generation are not higher than those limits in the definition of each generator type. (0103)
(g) EPA Response: EPA is not making this change in the final rule. EPA has determined that levels of accumulation that exceed that exceed the limits for a generator category without higher than normal levels of generation would only occur if the generator is stockpiling the hazardous waste on site rather than transporting it to a RCRA-designated facility. The purpose of this provision is to facilitate the timely transportation of hazardous waste from generators to facilities where they can be treated, recycled, or disposed, not to allow long periods of accumulation at the generator site and, therefore, EPA does not find this revision to be appropriate. 
(h) Comment: One commenter stated that they generally support the idea of episodic generation but have concerns about the provision being used by facilities storing waste illegally to potentially thwart enforcement action. The commenter stated that the proposed rules do not speak to situations where excess hazardous waste is already on site, potentially using an episodic event as a way to remove long-accumulated hazardous waste. (0108)
(h) EPA Response: EPA agrees that the episodic generation provisions should not be used in a way that prevents enforcement against a facility that has been operating as an illegal TSDF. The conditions that EPA has attached to the episodic generation provision are designed to protect against such abuse by requiring prior notification to the implementing agency of any impending planned event and notification within 72 hours of any unplanned event. In addition, the hazardous waste generated as part of the event must be labelled as episodic hazardous waste and with the date of the start of the event. These requirements are designed to prevent abuse such as the commenter described. 
(i) Comment: One commenter asked about the structure of the regulations in part 262 subpart L for episodic generators and what regulations are applicable if a generator fails to meet the requirements for episodic generation. (0178)
(i) EPA Response: The episodic generation provision is a conditional exemption that allows the generator to maintain its current regulatory category when it meets the conditions. Therefore, if the conditions are not met but the generation levels of the status in which the generator has been operating are exceeded, then the generator is not complying with those generator conditions for exemption and technically is in violation of the permitting requirements. 
(j) Comment: One commenter stated that proposed 262.16(c)(2) should be revised to include an option for SQGs that mix hazardous waste and non-hazardous waste to use Subpart L if they exceed their generation limit. (0217)
(j) EPA Response: EPA is not adding a reference to subpart L into section 262.16(c)(2). The mixture provisions have been revised in the final rule and now appear in 262.13. EPA does have a reference to part 262 subpart L in the small quantity generator regulations at 262.16(f). 
(k) Comment: One commenter stated that they believe that the episodic generation provisions should be revised to require that the episodic generator's hazardous waste requirements during the episodic event are based on the amount of hazardous waste generated in the event. For example, if a VSQG generates more than 1000 kg of hazardous waste in a month as a result of the episodic event, it would have to follow the standards in proposed § 262.232(b) rather than § 262.232(a). The commenter argued that this approach would be more protective. (0178) 
(k) EPA Response: EPA is not revising the final rule based on this comment. The commenter's suggestions would complicate the episodic generation provision and require the generators to keep track of their monthly generation of waste in the episodic event to determine which management provisions to operate under. The episodic event provisions are designed to simplify the regulations for generators going through an irregular event. EPA has determined that the provisions for management of wastes by VSQGs operating under an episodic event -- marking and labeling and managing in closed containers that are in good condition and compatible with the hazardous waste being accumulated therein and in tanks that are in good condition, are compatible with the hazardous waste accumulated therein, and that have procedures in place to prevent the overflow -- are protective for the management of hazardous waste for the limited duration of the episodic event. 

Section 6.1 - Need for provision


All comments organized to this section of the comment outline are responded to under Issue 6. 

Section 6.2 - One event per year

(a) Comment: The comments EPA received on this aspect of the proposal argued for a wide variety of options. Some commenters suggested that two events per year should be allowed (77, 107, 129, 138), some suggested allowing a petition for a third (87, 113,131, 224) and one commenter supported allowing up to three episodic events in a year provided the generator has a standing agreement with a facility to accept the waste (171). Another commenter supported allowing 2-3 events per year (192). Some of the commenters who supported two events per year noted that then facilities could plan one event per year and still take advantage of the episodic generation provisions if a second unplanned event occurred (129, 201, 240). However, many of the commenters, including several of the states, supported limiting the episodic generation provision to one event per calendar year (126). Of the commenters who supported one event per year, some argued that there should be no possibility for a second event (182, 217, 223, 248) while others argued that the proposed one event and a petition was appropriate (134, 163, 181, 217, 243) at a minimum (192). One state also suggested that the implementing agency should examine the causes of each event at each generator and determine if the episodic event could be held.
(a) EPA Response: EPA is finalizing the episodic generation provision with conditions stating that a VSQG or an SQG may exceed its generator category limits only once per calendar year without affecting its generator category, with the opportunity to petition EPA for a second event. In addition, EPA has determined that it is appropriate to allow a facility to petition for a second event in a calendar year under certain circumstances. A generator can have one planned and one unplanned event in the calendar year under these regulations. 
EPA has several reasons for finalizing the provision in this way in the final rule. First, if a VSQG or SQG exceeds its generator category limits more frequently than once per calendar year, EPA is concerned that these generators are more likely to be routinely generating greater amounts of hazardous waste and thus it is more appropriate for the generator to comply with the regulations applicable to the higher generator category, at least for the months they exceed the quantity limits for their generator category. In particular, if EPA were to allow up to three episodic events of 60 days each, that would account for approximately half of a year, which would not indicate episodic events. EPA is allowing the petition for a second event to allow for the infrequent unplanned event, such as a storm that causes releases of hazardous waste or a spill. Second, EPA believes most hazardous waste generators experience an episodic event infrequently, such as once every few years, and these events are typically planned maintenance projects. Third, the Agency is not limiting an episodic event to a single project within the generator's facility. In fact, a generator could start and complete multiple projects (e.g., a small demolition project, a tank cleanout, and removal of excess chemicals) at different dates within the 60-day time limit, so long as all projects are completed within the 60-day start and end dates identified on the notification form. Under that scenario, all hazardous waste generated would be considered part of the same episodic event.
Regarding oversight of episodic events, EPA is not finalizing a requirement that the state review and approve the first episodic event at a generator in a year, though the second event must be petitioned for and approved. States implementing the RCRA program do have the option to be more stringent and could include this in their state programs.
(b) Comment: Some commenters requested EPA clarify that the limit of one episodic event per year applies to each physical site where the waste is generated and not the entire company (93, 120, 149). One commenter also asked that EPA clarify that multiple waste streams can be generated during a single remediation, which would be considered a single episode (120).
(b) EPA Response: EPA is clarifying that the episodic generation events are per facility as generator is defined in §260.10 as "any person, by site, whose act or process produces hazardous waste identified or listed in Part 261 or whose act first causes a hazardous waste to become subject to regulation." Furthermore, EPA clarifies that different waste streams can be generated in a single episodic event.
(c) Comment: One commenter suggested that the episodic generator provisions could be administered on a rolling calendar basis, which would prevent generators from bunching episodic events and circumventing the RCRA LQG standards (240).
(c) EPA Response: EPA is limiting episodic events to one planned event in a calendar year and one unplanned event in the same calendar year. The provision requires that the generator must petition EPA or the authorized state for the second of the two events. EPA is relying on the calendar year as a time frame for the episodic events and believes that an alternate system that relies on a rolling calendar or other standard would be a complication not necessary for protecting human health and the environment under this provision. 

Section 6.3 - Petition process for second event


(a) Comment: Many commenters were in favor of two or more episodic generation events per year while others supported one event per year with the option of petitioning for a second event. One commenter specifically supported allowing generators to petition EPA or the authorized state requesting they be allowed an additional episodic event in a calendar year without having to comply with the higher generator standards (192). One commenter requested EPA provide a specific timeframe for the regulator to respond to the petition request and clarification on what actions a generator must take when a request is denied and/or is delayed by the regulatory agency (93). One state asked EPA to clarify whether a facility could request a second episodic event in a year and/or a 30-day extension to the event (217). Two states did not support the idea of allowing a petition for a second episodic event in a year (223, 248).
(a) EPA Response: While the Agency believes that most generators will experience an episodic event infrequently, we also recognize that there may be situations, often unexpected, where a hazardous waste generator may have more than one episodic event within a calendar year, such as an unexpected product recall, a major spill, or an act of nature. Therefore, the Agency is finalizing a provision to allow VSQGs and SQGs to petition EPA for permission to manage one additional planned or unplanned episodic event per year without impacting the hazardous waste generator category (provided that they do not have two of the same type of event within the same calendar year). 
EPA proposed that VSQGs and SQGs could petition EPA for permission regarding an additional episodic event per year, either planned or unplanned, potentially resulting in two planned or two unplanned events at a facility in a year. However, in response to some of the comments from states that implement the RCRA program, EPA has determined that it is most appropriate to allow only one event of each type per year and to require the generator to petition EPA for the second event and be approved. That is, if a generator holds a planned event early in the year, it can petition EPA or the authorized state for an unplanned event later in the year if needed. For instance, if the generator has already held a planned episodic event in a year, a planned second 60-day event in the course of the year could indicate that the generator should be operating at a higher generator category. However, a generator that is truly a VSQG or SQG could have an occasion where it has performed a clean out or system shut down already during the year and then an act of nature or other truly unplanned event occurs. EPA would not expect this to be a regular occurrence for generators and will depend on the implementing agencies operating the RCRA programs to take note and act accordingly if a generator is regularly requesting a second episodic event. 
In parallel fashion, if the generator has an unplanned event early in the year, it can still petition EPA to hold a planned event later in the year. At the same time, a generator may be planning to conduct an episodic event such as a tank clean out or maintenance project late in the year when it gets struck with a hurricane that can be managed as an unplanned episodic event for hazardous waste. In this case, the generator can hold an episodic event to respond to the storm and then petition EPA for a second event for the cleanout, while explaining that it needs the second event because of the occurrence of the storm earlier in the year. 
In both cases, EPA must approve the petition for a second event. EPA wants to allow for the case of a second event, in cases where the generator is legitimately having episodic events, but has determined that not allowing a generator to hold two planned events in a year ensures that the provision is being used for true cases of episodic generation and not as a way for generators to regularly avoid managing hazardous waste at higher generator categories. Similarly, EPA has determined that not allowing the generator to hold two unplanned events in one year will ensure that the episodic generation provision is not used in a way that creates an incentive for irresponsible management of hazardous waste. Because a petition for a second event distinguishes between an unplanned event and a planned event, EPA added definitions of planned episodic event and unplanned episodic event to the regulations in subpart L. 
EPA also believes that limiting the type of event that a generator can petition for will reduce the numbers of petitions submitted as a part of this provision, which is responsive to some of the comments received by states concerned about increased workload. EPA is not finalizing a time frame for states to respond to petitions for second episodic events, having determined that it is not appropriate to finalize this provision with a condition that could result in automatic approvals of petitions. EPA expects that the revisions to the proposal will decrease the number of petitions from generators to EPA or authorized states for second episodic events. 
EPA also notes that it has not finalized the petition to extend the event duration, instead revising the duration of an episodic event to 60 days. In addition, EPA is not promulgating criteria for evaluating petitions for a second unplanned episodic event, but recommends that the implementing agency base its decision on factors including the validity of the proposed episodic event, the generator's enforcement history and evidence of the generator's ability to responsibly manage the waste. EPA did not receive any comments on criteria to use for evaluating petitions and believes they are best done on a case-by-case basis. 

Section 6.4 - Notification

(a) Comment: Some commenters were concerned that they didn't know the purpose of notification and stated that if EPA was going to put an additional burden on the regulated community, EPA needed to demonstrate what the benefit is (73, 154). Other commenters argued that notification seems unduly burdensome to both the generator and the regulator and that on-site recordkeeping should be sufficient (81, 138, 182, 217). One commenter asked EPA to consider ways to recognize episodic generator status to alleviate the need to re-notify (121). MPCA stated that it does not support the notification requirement and thinks EPA has underestimated the number of "over-generation" events. MPCA argued it does not have the resources to appropriately handle the notifications and does not see a specific environmental protection purpose (232). Some of the comments on the notification provision singled out the notification for an unplanned episodic event as difficult to meet (93, 98, 117, 120, 149, 165, 168, 177, 213, 224, 240, 241). Most of these commenters stated that 24 hours is an insufficient time frame and did not mention EPA's addition of the phrase "or as soon as possible" in the proposal. Commenters noted that in the case of an unplanned event, the generator may not know if the waste is hazardous or if there is enough hazardous waste to make an episodic event necessary. Commenters suggested alternative approaches that included allowing longer time frames for notification, including 72 hours, 7 days or 30 days or simply "as soon as possible." Another suggested approach was to require notification 24 hours after a waste determination was made (177). EPA also heard that having a specific time frame in which the notification must be made is critical for making the requirement enforceable by the states. Other commenters agreed with the notification condition, stating that it was reasonable and necessary to ensure the provision is not used as a loophole for a generator to avoid day-to-day waste management practices (181, 243, 248). One commenter asked what the mechanism for the notification was. (0142)
(a) EPA Response: EPA disagrees that there is little to be gained from notification and, instead, has determined that it is critical to the enforceability of this provision and for the states to oversee the hazardous waste activity under their authority. The notification must be made with the EPA Site ID form (EPA Form 8700-12). Electronic versions of this form are acceptable if the state can accept them. Without a notification requirement for episodic waste, a generator could potentially operate as if under an episodic event at all times, changing the starting date, so that during any given inspection, it appears as though there is an episodic event on site. EPA does not expect that many generators would manage hazardous waste in this way, but the regulations must include checks and balances to prevent such abuse and the notification requirement is one way to allow the implementing agencies to follow up in person if such action is warranted.
Regarding the notification for an unplanned event, in response to the comments stating that EPA's proposal would be difficult to comply with in an emergency situation, EPA has revised this condition in the final rule. In the case of an unplanned episodic event, a generator has 72 hours to notify EPA or the authorized state via phone or email, and then must subsequently submit EPA Form 8700 - 12 (Site ID form) with the same information laid out above for a planned event. In the case of spills of hazardous materials, a 72-hour time frame for reporting the spill to the authorities is common and allows the facility some time to evaluate the situation before requesting the episodic event. A facility would have to wait for EPA to respond to the petition for a second event, but this should not impact the initial steps that the generator has to take to appropriately manage the hazardous waste since those standards still apply. EPA has determined that it is reasonable, however, to adjust the time frame for initial notification to EPA of an unplanned episodic event by phone, email, or fax within 72 hours from when the event begins. EPA believes that this adjustment provides the generator with some additional time in case there is a necessary delay in contacting EPA due to emergency conditions, but does think that a timely notification to the Agency is important in the case of unplanned events at the generator to ensure proper oversight. A 72-hour limit ensures that timely notification. 
EPA also is not finalizing the language "or as soon as possible" in the final rule, to provide an exact time frame in which the notification must occur, as the commenters requested. 
(b) Comment: One commenter noted a concern with the proposed language of §262.232(a)(2), which would require an SQG to report on Form 8700-12 the name of the emergency coordinator to EPA. The commenter notes that under the current regulations, SQGs are not required to report the name of the emergency coordinator to EPA and that the episodic generation provisions should not be more stringent than current SQG requirements (256). 
(b) EPA Response: EPA has determined that in the case of an episodic event at a generator, in which a facility is generating more hazardous waste than usual, it is appropriate for those operations to be taking place under the watch of an identified emergency coordinator for the sake of protectiveness of human health and the environment. The VSQG experiencing an episodic event could be generating SQG levels of hazardous waste during the event, but could also be generating LQG levels of hazardous waste and the identity of an emergency coordinator is an important item to be included in the notification to EPA. EPA is finalizing this condition of the provision. 
(c) Comment: One commenter stated that requiring CESQGs to notify and obtain an EPA ID number was particularly burdensome and may serve as a deterrent to using the episodic generation provisions and suggested removing them (262).
(c) EPA Response: Similarly to the comment above regarding an emergency coordinator, EPA believes that the notification to EPA and the subsequent receipt of an EPA ID number is a critical piece in ensuring that there is appropriate oversight for these generating facilities that are generating higher levels of hazardous waste than typical. Without notification, EPA cannot ensure that the generator is keeping to the limit of episodic events in the regulations. EPA is finalizing the condition that CESQGs notify and obtain an EPA ID number. 
(d) Comment: A couple states requested clarification on whether the notification for episodic events is applicable to emergencies and temporary one-time cleanups or just active registered episodic generators (112, 214).
(d) EPA Response: The notification for episodic events is only valid for meeting the RCRA requirements for holding an episodic generation event. Other notification requirements, such as those under EPCRA or notifications to the National Response Center are not being replaced and still must be complied with.
(e) Comment: One commenter stated that episodic generators do not need to get full permanent EPA ID numbers for the case of an episodic event and pointed out that their state uses a provisional or temporary ID for these situations. (0178)
(e) EPA Response: If an authorized state RCRA program already addresses similar situations to the ones described by the Episodic Event provisions with an alternate system of provisional EPA ID numbers that works for that state and is at least equally stringent to the federal program, EPA does not intend to interfere with this system in the implementation of part 262 subpart L. 
(f) Comment: One commenter asked how notification information will be disseminated from EPA to state and local regulatory agencies in a timely manner. (0196)
(f) EPA Response: Although EPA's proposed and final regulations state that the notification would go to EPA, when a state is authorized, the state revises those regulations to mandate that notifications go to the state and all authorized states manage the data from EPA Form 8700-12 themselves. EPA expects that whatever systems are currently in place between state and local governments for the dissemination of information from the Site ID Form will be used to pass along information about episodic generators as well. 

Section 6.4.1 - Notify 30 days before planned event

(a) Comment: One commenter questioned the need for prior notification of a planned episodic event and suggested annual reporting using EPA Form 8700-12. This commenter was concerned that the generator would not be able to notify until after a decision had been made to dispose of unwanted materials and characterize and quantify the amount of hazardous waste within the stock (254). Another commenter had a similar concern in that it's not always possible for a CESQG or SQG planning a special project to anticipate generating an amount of waste that would not cause an exceedance or vice versa. This commenter urged EPA not to require prior notification or, at a minimum, to allow a generator to withdraw a notification if it can document the planned episodic event did not occur (257). Florida DEP gave an example of a CESQG cleaning out a tank of hazardous waste and filling 3 55-gallon drums, one on July 20, one on August 31, and the last drum on September 1 and asked how an inspector would know when the waste was generated if the CESQG did not notify of an episodic event (214). Another commenter was concerned that there are no provisions to change the start and end date if the start date of a planned event is significantly delayed for unforeseen circumstances (131).
(a) EPA Response: As explained above, EPA has determined that a generator must notify if they are going to use the episodic generation provisions to remain in a lower generator category. If a generator finds that it notifies of an event and then it turns out that the material in question is not hazardous waste or does not in fact top the limit for the generator's category, the generator can work with EPA or the state by explaining that the event was not necessary after all. Under the previous regulations, that generator would have to manage the excess generated material as hazardous waste until it is determined not to be, which would have included a notification of a higher generator category, so the requirement being finalized is not an additional burden. Similarly, if the start date of an episodic event is delayed, the generator can work with EPA or the authorized state to revise the notification to the correct date. Florida DEP's hypothetical example explains why notification is important so that a facility can show that it is complying with the episodic generator provisions and not in violation of the higher generator category standards.

Section 6.4.2 - Notify as soon as possible for unplanned event
 
(a) Comment: Several commenters objected to the requirement to notify EPA within 24 hours of an unplanned episodic event for a variety of reasons. USWAG and others stated that this would be extremely difficult because the facility may not know at the time whether the material generated during the event is considered hazardous and it can take several days to a few weeks to receive the results of analysis. They suggested modifying the notification requirement for unplanned events to be anywhere from within 24 hours to 7 days to 30 days of determining the materials are hazardous waste (93, 98, 120, 149, 168, 177, 213, 241). One commenter simply stated that since the event is unplanned, recording the date when it began is not always possible (165). Another commenter noted that this timeframe is unrealistically short and suggested 3 business days (117). Another commenter recommended making this requirement match the National Response Center's (NRC) requirement for reporting incidents as soon as possible but no later than 72 hours (240). Others mentioned the "as soon as possible" language as helpful but were concerned that the 24-hour reference would set unreasonable expectations or it wouldn't be clear that "as soon as possible" means more than 24 hours could pass before notification (168, 224). 
(a) EPA Response: EPA understands that in the case of an unplanned episodic event, a generator will have competing priorities, particularly if a spill has occurred. However, the notification requirement for the episodic generation provision is critical in maintaining the appropriate levels of oversight for the generators taking advantage of this provision. EPA determined that it would not be appropriate to base the time frame for notification on when a waste determination is made, as that would not be parallel to any other area of the generator program and would be difficult to enforce. In addition, EPA found that the suggestions for the notification time limit to be lengthened to 7 or 30 days would result in excessive delays between the start of an episodic event and notification to EPA, compromising the ability to provide adequate oversight.
However, in response to the comments stating that EPA's proposal would be difficult to comply with in an emergency situation, EPA has revised this condition in the final rule. In the case of an unplanned episodic event, a generator has 72 hours to notify EPA or the authorized state via phone or email, and then must subsequently submit EPA Form 8700 - 12 (Site ID form) with the same information laid out above for a planned event. In the case of spills of hazardous materials, a 72-hour time frame for reporting the spill to the authorities is common and allows the facility some time to evaluate the situation before requesting the episodic event. A facility would have to wait for EPA to respond to the petition for a second event, but this should not impact the initial steps that the generator has to take to appropriately manage the hazardous waste since those standards still apply. EPA has determined that it is reasonable, however, to adjust the time frame for initial notification to EPA of an unplanned episodic event by phone, email, or fax within 72 hours from when the event begins.
(b) Comment: Some commenters asked for clarification on the requirement to provide notice within 24 hours of an unplanned episodic event. The Texas Commission on Environmental Quality (TCEQ) asked who is to be notified, what format should be used, and whether this notification is the same or different from notice of an emergency response? (112). One commenter noted that the preamble proposed to allow 24 hours for the facility to notify EPA of an additional unplanned release but the proposed regulatory language did not (192). The Florida Department of Environmental Protection stated that the 24-hour timeframe was reasonable for "release" events but not clear with respect to other events, such as a renovation project (214).
(b) EPA Response: EPA has made revisions to this condition in the final rule in response to comments. As mentioned above, EPA has revised the time limit for notification to 72 hours to allow time for competing priorities in an emergency but still to be a timely notification. In addition, EPA has stated clearly in the preamble, that if there is a change in the details of the event or if an event proves to not actually generate more waste than the monthly generation limit for the facility, the generator should work with EPA or the authorized state, as appropriate, to revise or withdraw the episodic event. EPA has also revised the regulatory text to clarify that a notification of an unplanned event should take the form of phone, email, or fax and should be followed up by submittal of the Site ID form (EPA Form 8700-12) with the necessary information. 
Section 6.4.3 - VSQG must notify fire department

(a) Comment: The few commenters on this provision were not in favor of it. The commenters stated that the notification requirement was excessive and would be an unnecessary burden to both the VSQGs and to the fire departments that would have received the notifications. The commenters also stated that the fire department is not the appropriate authority for RCRA compliance (96, 107, 192, 214, 232). Another commenter asked for clarification on this proposed requirement, particularly the form and documentation required for notification (213). 
(a) EPA Response: EPA did not receive support in the public comments for this proposal. Commenters on this provision included both industry stakeholders and state agencies. Therefore, EPA is not finalizing this notification requirement as part of subpart L. 

Section 6.4.4 - Other


There are no comments organized to this section of the comment outline. 

Section 6.5 - VSQGs must get EPA ID#

(a) Comment: A couple commenters said that having a CESQG get an EPA ID number was excessive and would create confusion since they are not normally regulated (165, 262). Some commenters asked for clarification on whether all CESQGs would need to get an EPA ID number or just those experiencing an episodic event (112, 235). One commenter also asked if there would be a way to distinguish those generators that are only notifying as an episodic generator from regular notifications (112). At least two states disagreed with the statement that generators couldn't initiate a shipment to a RCRA TSDF without an EPA ID number and noted that many TSDFs routinely fill in "CESQG" instead of an EPA ID number or are assigned a state generated number that is not equivalent to an EPA ID number (214, 232). Other states supported the requirement for VSQGs to obtain EPA ID numbers (232, 248), with one noting they have required it for their VSQGs since 1987. They have observed it to be only a minimal burden to generators and a small but reasonable burden to the regulatory agencies (232). The other state asked for clarification on how long the VSQG would need to continue to maintain its EPA ID number after the episode is completed (248). One commenter asked for more details on the availability of an electronic portal for obtaining the EPA ID numbers since one is not available now and it would help with timing issues, particularly for weekends (240).
(a) EPA Response: EPA has determined that the notification to EPA and the subsequent receipt of an EPA ID number is a critical piece in ensuring that there is appropriate oversight for these generating facilities that are generating higher levels of hazardous waste than typical (VSQGs who are not operating under the episodic generation provisions of part 262 subpart L do not need to obtain an EPA ID number). EPA disagrees that this requirement is excessive, confusing, or unnecessary. Without notification, EPA cannot ensure that the generator is keeping to the limit of episodic events in the regulations. Therefore, EPA is finalizing the condition that VSQGs notify and obtain an EPA ID number. If a VSQG that has notified in order to carry out an episodic event wants to remove its ID from the system or otherwise revise its notification, it should work with the authorized state, but should be aware that if it needs another episodic event in the future, it would have to have an EPA ID number. How episodic generators are identified on the form and in the database system will depend on the exact nature of the revisions that are made as a result of this rulemaking and will be rolled out in the change process for those forms. In addition, EPA is working to make electronic reporting more prevalent in its processes, but those changes are not a part of this rulemaking. 
(b) Comment: One commenter asked for further details about the availability of an electronic portal for submissions of the Site ID form. (0240)
(b) EPA Response: This rulemaking is not a venue for any action on electronic submissions for EPA forms. EPA is developing an electronic submittal system, but the Site ID forms are managed by the authorized states and the ability for the submittals to be made electronically will depend on the availability of those capabilities by the states. 

Section 6.6 - Accumulation standards for VSQGs

(a) Comment: Two states expressed support for the proposed container and tank management requirements for VSQGs and SQGs using the episodic generation provisions (145, 232). Another commenter said that the physical equipment would not always be available or possible, especially for VSQGs (165).
(a) EPA Response: EPA is finalizing that a VSQG generating episodic hazardous waste that would otherwise cause the VSQG to exceed its generator category limit for the calendar month must comply with the following accumulation standards for containers and tanks that manage the episodic wastes. EPA believes these standards are necessary because the quantity of hazardous waste that is accumulated during this episodic period requires standards for safe management in order to adequately protect human health and the environment. Generators must safely manage the hazardous wastes being generated and these standards exist to ensure this safe management. As for the comment concerning the lack of physical equipment for VSQGs, VSQGs will need to make any arrangements to ensure the availability of any physical equipment that is necessary to meet this requirement. 
(b) Comment: Several commenters argued that it was reasonable to prohibit VSQGs from conducting on-site treatment of episodic waste, although one state would allow elementary neutralization. One commenter noted that even if VSQGs are sophisticated facilities with the capability to safely treat, EPA must design the regulations to be protective and not based solely on the most sophisticated actors. If a sophisticated VSQG wants to perform generator treatment, it can choose to operate as an SQG and meet the standards that apply to that category (82, 112, 145, 217). Other commenters encouraged EPA to allow VSQGs to treat their episodic waste onsite per the additional requirements of the episodic generator provisions if they have the expertise (92, 93, 126, 182, 188, 213, 214, 216, 248). One commenter stated that VSQGs should be allowed to treat as part of episodic events because treatment is allowed under 261.5(f) and (g) for generators. (0214)
(b) EPA Response: After considering the comments on treatment by VSQGs managing hazardous waste under an episodic event, EPA has determined that VSQGs may not treat hazardous waste on site under an episodic event. Although VSQGs must meet some additional waste management requirements for an episodic event, the provisions allowing treatment by SQGs and LQGs in containers and tanks were based on those containers meeting the more extensive standards that containers and tanks at TSDFs must meet in subparts I and J of parts 264 and 265. These same standards still apply to SQGs and LQGs, though they have been copied into part 262 as a part of the reorganization in this final rule. However, under the episodic generation provisions, VSQGs holding an episodic event do not have to meet these same standards for waste management -- they must meet a performance standard instead. EPA believes that the performance standard is appropriate for accumulating that waste on site for 60 days or less until it is sent offsite for treatment or disposal, but is not appropriate for treatment onsite by the VSQG.
Regarding the standards in 261.5(f) and (g) that mention treatment by VSQGs, EPA believes that it is clear that the statement at 261.5(f)(3) and the corresponding statement in 261.5(g) that say, "a conditionally exempt small quantity generator may either treat or dispose of his hazardous waste in an on-site facility or ensure delivery to an off-site TSDF..." refers not to generator treatment in containers, as EPA is discussing in this section, but instead to treatment or recycling of the hazardous waste that would be akin to waste management. For example, if a permitted Subtitle C landfill or a permitted RCRA treatment facility was also a VSQG, this phrase about treating or disposing on-site would apply to them. It is clear that this language is not saying that any VSQG can treat or dispose of its hazardous waste on-site without any other restrictions. 
(c) Comment: VSQGs exceeding generation limit during normal operations -- EPA received some comments stating that a VSQG that does not discover until the end of the month that it has exceeded its threshold for generation of hazardous waste as a VSQG would have difficulty complying with the episodic generation provision because of the notification requirements (0168, 0233) 
(c) EPA Response: EPA would not consider the situation described by the commenters to be a case of an episodic event because the VSQG in this case is exceeding its generation limit in the course of normal operations. An episodic event is an activity that does not occur within normal operations that causes the generator to exceed its normal limit. 
(d) Comment: One state commented that if a generator is managing episodic hazardous waste in tanks, it may be a good idea for those tanks to meet some or all of the LQG requirements for tanks (i.e., certification by a P.E., secondary containment, and the air emission standards) (217).
(d) EPA Response: EPA has determined that in the case of episodic events, the standards in the final rule for management of hazardous waste in tanks are sufficient to protect human health and the environment. SQGs must meet the typical SQGs standards for tanks and VSQGs must meet a performance standard, inspect the tanks daily, and have procedures to prevent overflow. In the case of an episodic event, a tank will hold hazardous waste for a very limited period of time before the waste is removed and shipped off-site and EPA has determined more proscriptive standards are not necessary for waste accumulation during that limited window. 

Section 6.7 - VSQG must manifest and send to a RCRA TSDF

(a) Comment: Some commenters agreed that a VSQG should have to dispose of their episodic hazardous waste at a RCRA-designated facility (i.e., a RCRA-permitted TSDF) (132, 134, 181, 185, 243). One state government said they agreed that VSQGs must use manifests for shipment of the episodic waste (248).
(a) EPA determined that it is appropriate for VSQGs holding an episodic event and operating under the provisions of subpart L to manifest the hazardous waste generated from the episodic event and send it to a RCRA-designated facility. Generally, VSQGs are not required to manifest their hazardous waste to a RCRA-designated facility, but can ship them without a manifest to one of eight types of facilities listed in § 262.14(a)(5). However, because the VSQG will be generating quantities of hazardous waste that exceed its normal generator category thresholds, the Agency has determined that the use of a hazardous waste manifest and the shipment of the hazardous waste to a RCRA-designated facility is most protective of human health and the environment. 
However, the condition to manifest the hazardous waste and send it off site to a RCRA-designated facility only applies to the hazardous waste generated as a result of the episodic event. The condition does not apply to other hazardous waste generated at the same time as, but separately from, the episodic event. However, if the VSQG desires to ship all hazardous waste generated and accumulated on site to a RCRA-designated facility at once, for economic or logistical reasons, then it can be sent off site together. This applies whether the hazardous waste was generated as a result of the episodic event, independent of the episodic event, or prior to the event.

Section 6.8 - Accumulation standards for SQGs

 (a) Comment: Only a few commenters specifically commented on accumulation standards for SQGs. Two states expressed support for the proposed container and tank management requirements for VSQGs and SQGs using the episodic generation provisions (145, 232). One commenter found the container labeling to be confusing and excessive (133). One state was concerned that some of the requirements would be hard to enforce, particularly verifying that SQG label containers "episodic hazardous waste" (217). Another state agreed with the labeling of the words "episodic Hazardous Waste," the contents, and the hazards but did not support the date being added (248).
(a) EPA Response:For containers and tanks, EPA decided to finalize the following accumulation standards as conditions for managing waste under the episodic generation provisions. When accumulating hazardous waste generated as a result of an episodic event in containers, the SQG must mark its containers with the following: (1) The words "Episodic Hazardous Waste"; and (2) an indication of the hazards of the contents of the container. These standards are the same as those for SQGs accumulating hazardous wastes in containers in the course of normal business operations and are necessary to protect human health and the environment. In addition to these standards, the SQG is required to mark the date that the episodic event began clearly on each container. For tanks, the SQG must mark or label the tank containing hazardous waste accumulated during the event with the words "Episodic Hazardous Waste" and is required to use inventory logs, monitoring equipment, or other records to identify the hazards of the contents and to identify the date that the episodic event began and ended. EPA does not think that these few labelling requirements are excessive or confusing. They are necessary for both the generator and any implementing agency to be able to identify what hazardous wastes are being generated under an episodic event and whether the event is still occurring and whether the wastes are legally still on the generator's site. Without labeling of episodic waste and event dates, this information cannot be determined by looking at a container or tank. The other labelling requirements are in line with the labeling changes to all hazardous waste being finalized in this rulemaking. 
In addition, the generator must have records containing this information on site and available for inspection. The SQG must also comply with all the conditions of the exemption in § 262.16 -- for example, the waste accumulation, waste management, employee training, and emergency preparedness and prevention conditions.
(b) Comment: One commenter asked how the requirement at SQGs use the tank specifications in part 265 interacts with the exemption from part 265 in 265.1(c)(11) to immediate responses to releases, discharges, or threats to human health, public safety, property, or the environment. (0214) (b) EPA Response: Section 265.1(c)(11) refers to the immediate threat or aftermath of an emergency. In those cases the exemption from part 265 can apply while the situation remains unstable. When the immediate response is over, a generator can choose to operate under the episodic generation provisions in subpart L (if applicable) if the event resulted in a higher than normal generation level for the month for that generator and then they would have to comply with part 265 technical standards for tanks. Note that not every unplanned episodic event would rise to the level of this exemption from part 265.

Section 6.9 - 45-day limit for event

(a) Comment: Most of the comments EPA received on the episodic generation provision in the proposal revolved around how long each episodic event could be. EPA proposed a 45-day limit for an episodic event with an option to petition for a 30-day extension, for a potential total of 75 days. EPA proposed 45 days because it believed that 45 days allowed enough time for an event to be initiated and completed and for the waste to be removed. The petition option was meant to account for any unexpected problems that the generator might have with transporting the waste offsite. EPA did not want to extend the episodic event for so long that it might represent a large portion of the year. EPA determined that if the episodic event provision were too expansive, it would be more likely to allow generators that are more permanently generating in a higher category to try to use the provision as a way to avoid those requirements. 
However, many commenters on this aspect of the provision argued that the 45-day limit was too restrictive (125, 129, 134, 182, 201, 217, 238, 241) and one stated that the limit "undermines the benefits to operators of the episodic event rule" (88). However, it should be noted that there was also some support for the 45-day time frame in the comments (181, 227, 241), as well as at least one commenter who argued that 45 days is too long for an episodic event because most truly episodic events are very short-term spikes (232). One state asked for clarification on the maximum time frame and whether the waste had to be shipped off-site or received at the TSDF in that time frame (112).
One of the main reasons that commenters argued that 45 days is too restrictive a time period for episodic events was the time needed for waste disposal contracts to be competitively bid and the time needed for generators to classify waste and prepare and schedule shipments (75, 77, 81, 93, 113, 117, 120, 131, 134, 149, 155, 177, 214, 238, 240, 257, 258, 280). Other commenters also pointed out that events themselves may take place over several weeks (138, 182, 217) and that some remote facilities may have special circumstances that require longer time frames to resolve (98). Other commenters argued that some events may be special projects or demolition or remediation projects that would take longer than 45 days (97). One commenter was particularly concerned that the generator would not know they would become an episodic generator until after a contractor or consultant had helped them characterize their unwanted materials, in which case much or all of the 45 days may have passed (254).
Many commenters suggested a 90-day time frame, to match up with the requirements for large quantity generators (75, 81, 93, 98, 113, 120, 131, 138, 149, 155, 177, 201, 214, 238, 240, 258, 262, 280) and some suggested at least a 60-day time frame (129, 214, 224, 241, 257). Other commenters suggested time frames as long as 180 days (117, 182, 240) or time frames commensurate with the higher generator status (i.e., 90 days for LQGs or 180/270 days for SQGs) (88, 192, 217). One commenter also suggested 120 days for generators that are located farther away from RCRA designated facilities (241). 
(a) EPA Response: EPA's goal was to find a balance between a time frame that would be useful and workable for industry and not making episodic generation a loophole for generators to use to circumvent the regulations by holding episodic events over a large part of the year. The first part of achieving this balance was determining how long an event should be. EPA was persuaded by the commenters who stated that a longer time frame than 45 days was appropriate for an episodic event, particularly because of the arguments surrounding the planning needed to remove waste from the generator site in the case of an unplanned event, even if the event itself is very short. For planned events, it should be a matter of course for the generator to have characterized waste as hazardous or not and made arrangements for shipment off site in advance. However, in the case of an unplanned event, the generator might not know if the material that must be disposed qualifies as a hazardous waste and may not have a waste hauler available for a pick up. If the generator has to competitively bid for the service, as some of the commenters on the rule argued that they must, the process of getting the waste off site will take longer. 
However, EPA was not persuaded by the commenters who argued that some events themselves will take longer than the time allowed, such as long-term demolition or remediation projects. Rather, these bigger long-term projects do not appear to be the kind of event that EPA would consider an "episodic" event and warrant the facility shifting into the larger waste category for the duration of the increased waste generation to properly manage the site and the hazardous waste itself. 
Therefore, EPA is finalizing a longer time frame than proposed to account for some of the challenges in managing waste from an unplanned episodic event. EPA has determined that 60 days is an effective balance between allowing time for the generators to use the provision without making the time frame so long that it becomes something generators can abuse. A 90-day time frame or longer, suggested by many of the commenters, struck EPA as being excessively long, as it would mean that a generator could consider the waste being generated during a full quarter of the year as waste from an episodic event. Shortening the event time and allowing a full 90 days of accumulation time also went counter to the Agency's goal of encouraging these generators that are generating above their normal category to arrange for the shipment of the waste to a RCRA-designated facility as soon as possible. 
Therefore, EPA has decided that VSQGs and SQGs can have 60 calendar days to initiate and complete an episodic event, which includes generation, accumulation, and management (e.g., recycling, treatment and disposal --  either on site, such as waste neutralization in a container, or off site at a RCRA-designated facility) of all hazardous waste resulting from the episodic event. In order to maintain a parallel structure for planned and unplanned episodic events, EPA is finalizing a 60-day time frame for both types of events. In the case of a planned event, the 60 days start on the first day of any activities affiliated with the event and in the case of a storm or spill, the 60 days start on the day of the storm. All hazardous waste generated from the episodic event must be removed, transported by hazardous waste transporter with a hazardous waste manifest, and sent to a RCRA-designated facility by the end date of the event, no more than 60 days from its start. In addition, the Agency sees no reason to preclude a generator from taking advantage of this provision to also dispose of other hazardous wastes generated during the time of the episodic event. EPA has determined that events requiring more than 60 days to complete are not episodic generation of hazardous waste and the generator should be operating in a higher generator category to accumulate and manage that hazardous waste. 

Section 6.10 - Petition process for extension of event

(a) Comment: One commenter on the petition process requested EPA set a specific time frame for the regulator to respond to the request. This commenter also requested EPA clarify what actions a generator must take if the petition is denied or delayed by the regulatory agency (93). Two states did not support allowing generators to petition for an extension of an episodic event (232, 248). One state also asked for clarification on what criteria should be considered in determining whether to grant an extension to the 45-day storage period for episodic wastes (112). Another state asked that EPA explicitly state that in order to get a 30-day extension, the hazardous waste must not be beyond the allowable accumulation period (206). Another state disagreed with making the 30-day extension more stringent than what's currently required under existing §262.34(b) for non-episodic events (214).
(a) EPA Response: As a result of allowing a longer time frame for the episodic event, EPA also determined that a petition for a 30-day extension to an episodic event is no longer necessary. The longer time frame of 60 days should mean that extensions are not necessary in many cases. In addition, EPA took into consideration the comments from the authorized states that they are concerned about the potential volume of petitions they might receive from the proposed episodic generation provisions, as well as their implementation questions, and eliminating the option to petition for an extension is responsive to their concerns about the effect of the new provision on their resources. Accordingly, if a generator operating under the episodic generator conditions finds itself at the end of the 60-day time period and is unable to remove the waste from its site before the deadline, its generator category will change to SQG or LQG once the deadline has passed and the hazardous waste must be managed under the appropriate generator standards. 

Section 6.11 - Recordkeeping for episodic event

(a) Comment: Two states supported the proposed recordkeeping requirements for episodic generation events (232, 248). Several commenters noted that the generator must manifest the waste but that the manifest itself is not listed as one of the records that needs to be retained (131) or the recordkeeping information that is required duplicates much of the information found on the manifest and/or notification form (214, 217, 240). Another commenter noted that episodic events could be documented with shipping papers and notification forms (154).
(a) EPA Response: EPA has determined that generators must keep the following information in their records: (1) beginning and end dates of the episodic event; (2) a description of the episodic event; (3) a description of the types and quantities of hazardous wastes generated during the episodic event; (4) a description of how the hazardous waste was managed, as well as the name of the RCRA-designated facility that received the hazardous waste; (5) name(s) of hazardous waste transporters, as appropriate; and (6) an approval letter from EPA, if the generator successfully petitioned to conduct an additional episodic event during the calendar year. 
The information required to be maintained in items (1) through (3) above is the same information that must be identified on the generator's notification to EPA about the episodic event. Maintaining records of the name of the RCRA-designated facility that received the waste and the ultimate management of that waste as well as the name of any hazardous waste transporters fulfills the RCRA requirement for the generator to be responsible for its hazardous waste from cradle to grave. The generator can keep copies of the manifest to fulfill their recordkeeping obligations. In addition, a record of any approval letters from EPA for a second event are critical for generators to be able to show that they were in compliance with subpart L when conducting that second episodic event. These records must be maintained on site by the generator for three years from the completion date of each episodic event. The recordkeeping condition is critical to enable effective and credible oversight. We also have determined that the required items represent the minimum information necessary to determine that any hazardous waste generated during the episodic event is managed properly. In addition, EPA notes that the regulations in part 262 subpart L do not need to specify that the generator maintain copies of its manifests, as those requirements are covered in the manifest regulations. 
(b) Comment: Several commenters asked for clarification on whether episodically generated wastes would be required to be included in an LQG's BR (97, 112). The RCRA Site ID Expert Group did not support the episodic generation provisions specifically because the VSQGs and SQGs that generate LQG amounts of waste would not have to file a BR and they noted that a significant percentage of BRs currently submitted are from episodic or one-time LQGs (125).
(b) EPA Response: A VSQG or an SQG that is operating under an episodic event is not required to complete and submit a Biennial Report for that year simply because of the episodic event. If a VSQG or an SQG carries out an episodic event early in the year and then later in the calendar year becomes an LQG for a different event that is not performed under the part 262 subpart L regulations for episodic events, and is therefore submitting a BR anyway (if it is a reporting year), then all the waste generated in the calendar year would have to be reported. This would include the hazardous waste generated under the initial episodic event, as well as all other hazardous waste for the year. 

Section 6.12 - Use of drip pads or containment buildings

(a) Comment: Some commenters were in favor of allowing episodic hazardous waste to be accumulated on drip pads and/or in containment buildings (131, 164). One state noted that a large remediation project can be an episodic event and it may be desirable to manage that waste in a containment building. The state requested EPA clarify whether EPA's proposed prohibition on the use of containment buildings at an episodic generation site means they may never be used or if the generator would just have to comply with the full LQG requirements (178). One state disagreed that CESQGs are prohibited from using drip pads and stated that the exclusion at §261.4(a)(9) specifically mentions CESQG drip pads (214). Two states and the association agreed that containment buildings and drip pads should not be used for episodic events (217, 240, 248).(a) EPA Response: EPA is also finalizing its proposal that VSQGs/SQGs may not take advantage of the episodic generation provision for wastes accumulated on drip pads or in containment buildings. EPA has determined that it is most appropriate that hazardous waste that is being accumulated and managed on drip pads and in containment buildings be managed under the specific requirements in part 265 subpart W and subpart DD for those units. If a generator experiences an episodic event in an area of the facility that is separate from its accumulation in these units, it can use subpart L for those hazardous wastes. EPA also notes that increased hazardous waste production that is simply a result of increased production at the facility would not be considered an episodic event for the purposes of part 262 subpart L. 

Section 6.13 - Additional conditions

(a) Comment: Counting -- Two states did not agree with how the waste in the example in the proposal of an episodic event that involved two calendar years was counted and stated that it was inconsistent with normal waste generation counting (217, 232). One of these states, MCPA, did not support the proposed accounting methods for differentiating and tracking hazardous waste generated during an episodic event in general and noted that the accounting surrounding an unplanned event could be considerably more complex (232).
(a) EPA Response: Counting -- If a generator's waste is to be considered part of the episodic event and not be counted toward monthly generator category, then the waste must be part of the episodic event identified in the generator's notification. EPA has determined that this will prevent generators from using the time frame of an episodic event as a free-for-all for generation of all types of waste, regardless of whether it is identified in the notification of the event. EPA has revised this interpretation of how the episodic generation provision will work from the preamble discussion in the proposed rule in reaction to concerns from commenters that the episodic generation provision would provide excessive relief from the hazardous waste regulations for generators. EPA carefully considered what parts of this proposal could be revised to ensure that the episodic generation provisions are used just for the management of waste that is episodically generated and not be used to allow a generator to avoid managing waste in a larger generator category that it is operating in more regularly. EPA identified the discussion about differentiating waste from operations and from an episodic event as an area where the interpretation of the final provision should be revised to clearly state that only the waste from the identified episodic event is exempt from being counted toward a generator's category. EPA has therefore revised this discussion for this final preamble. 
(b) Comment: Labeling -- Several commenters disagreed with EPA's proposed requirement to label hazardous waste from episodic events, specifically "Episodic Hazardous Waste," stating it was likely to cause confusion and non-compliance since it will only be required on rare occasions. These commenters stated that it would be a burden to get and use a label that is different than the standard "hazardous waste" label (81, 138, 154, 214, 220, 256). One state agreed with the labeling of the words "episodic Hazardous Waste," the contents, and the hazards but did not support the date being added (248). One commenter argued that the container labeling standards for episodic generation events were confusing and exceeded what was necessary (133). 
(b) EPA Response: Labeling -- EPA has determined that the labeling requirement as part of episodic generation should, for the most part, parallel the requirements in the other parts of the generator program. However, EPA disagrees with the commenters on the usefulness of the "episodic hazardous waste" label. EPA also disagrees with commenters that the label is confusing and burdensome, or that a date on the label is unnecessary. EPA is retaining this requirement because it will be important for generators holding episodic events to be able to distinguish hazardous wastes generated during those events from other hazardous wastes generated on site. Although both types of hazardous waste can be managed and shipped off site together, if convenient, hazardous waste that was generated before the episodic event began retains its original time frame for being treated or shipped off site whereas hazardous waste from an episodic event must be treated or shipped off site within the 60-day period for the event. If there is no distinction on the labels for hazardous waste from an episodic event, or a date, it would be difficult for a generator or an inspector to be able to determine which hazardous waste is a part of the episodic event with the 60-day limit and which hazardous waste has an alternate schedule for treatment and shipment. EPA does note, however, that the generator does not have to use a specific "episodic hazardous waste" label that would have to be purchased separately and, if practicable, can simply add the word "episodic" to the labeling with a self-designed label or with a large permanent marker. 

Section 6.14 - Other

(a) Comment: One commenter stated their concern that the episodic generation event provisions are inconsistent with the long-standing exemption from RCRA permitting for immediate response activities. This commenter believes the requirement to immediately comply with the generator tank and container standards for episodic events is in direct conflict with the immediate response activities. 
(a) EPA Response: EPA disagrees with the commenter's assertion that the new provisions for episodic generation events conflict with the immediate response exemption of §§ 264.1(g)(8), 265.1(c)(11)(i), and 270.1(c)(3)(i). First, the immediate response exemption is an exemption from the requirement to obtain a RCRA permit. It is not an exemption from having to meet the generator tank and container standards. Furthermore, many of the episodic generation events would not qualify as immediate responses, particularly the planned episodic events. 
(b) Comment: The proposed regulations address planned and unplanned episodic generation, which provides necessary regulatory relief by creating allowable episodic events, without changing a generators status. Many University research stations, research laboratories and research farms commonly use chemicals, including pesticides which are P-Listed in quantities much greater than 1kg. Maintaining the 1 kg monthly generation limit for P listed wastes is unreasonable and places undue burden on generators. The episodic generation proposed regulations could be further enhanced by increasing the monthly generation limit from 1 kg to something more practical such as 10 or 20 kg (0187).
(b) EPA Response: EPA is not revising the generation levels of acute hazardous waste that will cause a generator to become an LQG as a part of this rulemaking. EPA encourages college and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the concerns expressed in this comment. Under Subpart K, the accumulation limits are based primarily on time. Further, the 1 kg accumulation limit for laboratories applies only to P-listed wastes that are listed for reactivity. (c) Comment: One commenter asked if a generator operating under an episodic event could send hazardous waste to an LQG under the control of the same person, as allowed under the consolidation provisions finalized in this rulemaking as well (0240) 
(c) EPA Response: EPA has determined that because of the amounts of wastes that could be involved in an episodic event and because of the goal to remove the hazardous waste to a disposal facility in a timely manner, allowing a generator to take advantage of both the episodic generation provision and the consolidation provision would not be appropriate. This would allow another 90 days of accumulation before ultimate treatment or disposal and could involve much higher amounts of waste than originally considered by EPA when allowing consolidation from VSQGs.
(d) Comment: One commenter stated that all hazardous waste from a generator should not have to be removed at the date of the conclusion of the episodic event. (0254)(d) EPA Response: EPA agrees with the commenter. A generator would not have to remove all its hazardous waste from the site at the end of the episodic event. However, all the hazardous waste from the episodic event would have to be removed by the end date of the event. If the generator is generating hazardous waste in its normal production processes at the same time as the episodic event, that hazardous waste can be generated and accumulated on its typical schedule per 262.14 or 262.16. 

Section 7 - 7. Revisions to existing parts 264 and 265
 
Comment: :: Change 50: In 264.15(b)(4), the requirement to inspect "[a]reas subject to spills, such as loading and unloading areas" on a daily basis is imprecise. Many agencies believe an "area subject to spills" is anyplace where waste is stored, and expect daily inspection of these areas in contravention of the requirement to inspect such areas weekly. Please provide clear requirements for what types of areas are expected to be inspected on a daily basis when in use. (0078)
Response: The Agency believes the existing regulations associated with what types of areas are expected to be inspected on a daily basis when in use are self-explanatory and we refer the commenter to the specific regulations cited in 40 CFR 264.15(b)(4) for additional information. If not sufficient, the Agency recommends that you contact your authorized state or EPA regional office for assistance.
Comment: Change 59: Please explain why inspections for containment buildings must be conducted "at least once every seven days" when for all other types of units the requirement is "at least weekly". The reasoning for this requirement was not discussed in the rule adopting it [Footnote 11: 57 FR 37194 (8/18/1992).]. Some agencies are utilizing this requirement to justify their interpretation of "at least weekly" as "at least once every seven days". (0078)
Response: The language describing the time frames for inspections at containment buildings and other hazardous waste accumulation units is existing language that EPA is affecting in this rulemaking only insomuch as some of those standards are being copied into part 262 as part of the reorganization. EPA did not propose to revise the language the commenter is commenting on and is not making any changes in the final rule.
Comment: 46. Regarding proposed revisions to Parts 264 and 265 for owners and operators of hazardous waste treatment, storage and disposal facilities - Section XI.A-B., pages 57978-57980: Colorado agrees with the proposed changes to the biennial reporting requirements for owners and operators of TSDs and has no comments. (0085)
Response: The Agency appreciates the support of this commenter regarding these changes.
Comment: Part 264
:: 264.71 - This seems to clarify that TSDFs may use the Part 262 accumulation provisions. Florida agrees with the proposed change clarifying that TSDFs may use the Part 262 accumulation provisions for wastes generated on site. (0214)

Response:  The Agency appreciates the support of this commenter regarding these changes.
Comment: BCI has one suggestion to improve the rule by harmonizing the various inspection and reporting schedules to avoid confusion among the regulatory community and EPA by eliminating one outlier inspection schedule. Except for instances where the schedule is set at once a day, month, or year, the vast majority of EPA's inspection and recordkeeping requirements for owners and operators of treatment, storage, and disposal facilities in 40 C.F.R. Parts 264 and 265 are set to the common schedule of "once a week," "weekly" or "at least weekly."  BCI understands that these two frequencies were intended to equate to the same period of approximately a calendar week, and the difference in language between "weekly" and "every seven days" may, at first blush, appear minor. However, BCI members have reported that this inconsistency causes significant confusion and implantation headaches because the periods are calculated differently: one is based on the numerical calendar date, the other based on the calendar week. An inspection interval of Monday to the following Tuesday would be compliant with all of the at least twenty separate "weekly" schedules, but not for the two outliers. This means that facility inspectors must separately track the inspection schedule for 264.1101(c)(4) and 265.1101(c)(4) from all other weekly inspection schedules.

EPA should make the inspection and recordkeeping schedules as consistent as possible. BCI recommends changing the wording in both 264.1101(c)(4) and 265.1101(c)(4) to read "at least weekly" instead of "at least once every seven days." (0247)
Response: The language describing the time frames for inspections at containment buildings and other hazardous waste accumulation units is existing language that EPA is affecting in this rulemaking only insomuch as some of those standards are being copied into part 262 as part of the reorganization. EPA did not propose to revise the language the commenter is commenting on and is not making any changes in the final rule.
Comment: DC agrees that the new requirements for SQGs are important and will improve safety in the event of an emergency. However, DC feels the burden on SQGs, which are normally small businesses in the District, such as dry cleaners and auto repair shops, will be significant. (0248)
Response: The Agency has modified its proposal to address the concerns expressed by emergency responders. The impacts on SQGs should be minimal, if there is any increase at all.
Comment: - 264.1030(b)(2) and 265.1030(b)(2) and (3): The Note below section 265.1030(b)(3) has been deleted that previously explained the following: "NOTE: The requirements of §§265.1032 through 265.1036 apply to process vents on hazardous waste recycling units previously exempt under paragraph 261.6(c)(1). Other exemptions under §§261.4, and 265.1(c) are not affected by these requirements." This note should be reinstated to aid in understanding the regulations, to the extent it is not inconsistent with the final form of the regulations; (0248)
Response: EPA did not intend to delete the note to § 265.1030(b)(3) and erroneously published that instruction in the proposed regulation. This has been corrected in the final rule.  

Comment: - 264.1050(b)(3): The exemption from permitting previously referencing 262.34(a) is now changed to new section 262.17 (without specifying the pertinent subsection(s)). New section 262.17 covers a broad range of SQG requirements. This exemption needs to have a more specific reference; (0248)
Response: The Agency disagrees with this comment. As reconstructed in the final rule, the language found at the beginning of 40 CFR 262.16 and 262.17 makes clear that all conditions must be satisfied in order to be exempt from permitting requirements.     

Comment:  264.71 and 265.71 (manifests): the references to 40 CFR 262.34 (which state that it applies only to shippers of hazardous waste generated at the facility) have been changed to reference 262.15, 262.16, and 262.17, which are the new generator sections with their added requirements. The specific applicability of manifest requirements needs to be stated as being for shippers, as is currently is done; (0248)
Response: The Agency disagrees with this comment. The changes from 40 CFR 262.34 to §§ 262.15, 262.16, and 262.17 are simply conforming changes meant to address the reorganization of the hazardous waste generator rules and nothing else. 
Comment: If you are proposing changes to 40 CFR Parts 264 and 265, recommend or urge you to also make identical or parallel changes to 40 CFR Part 267 for Standardized Permits. Imagine that was inadvertently omitted in the proposed rule at 80 FR 57980 and 80 FR 58011. But without parallel consistent changes to Part 267, that implies holders of standardized permits cannot take "on-line" training and must continue with only classroom and on-the-job training, still have to include the closure cost estimate in the biennial report on EPA form 8700-13B (yes there is "B" in there), etc. We at BP Exploration (Alaska) Inc. operate a TSDF in a non-authorized state that has been issued a standardized permit for container storage from EPA Region 10. We consider ourselves to have been given adequate public notice for such a rulemaking change, as evidenced by the submittal of this public comment; it does not seem necessary for the purpose of providing adequate public notice for the agency to have to "re-" public notice revising Part 267 if you are merely making consistent changes to Part 267 that you proposed to make to 40 CFR Parts 264 and 265. (0151)
Response: The Agency has deferred any specific changes to a facility's permit to its authorized state or EPA region. We recommend you contact your permitting authority to determine if a change can be made to your permit.
Section 7.1 - 50-foot waiver for LQGs

General Support of the Waiver

Comment: EPA heard from 19 commenters that generally support that the rule includes a site-specific waiver from the requirement to accumulate ignitable or reactive waste at least 15 meters (50 feet) from the property line (Commenter Nos. 77, 85, 93, 126, 131, 134, 142, 168, 181, 185, 192, 206, 214, 219, 225, 248, 250, 256, and 262). Commenters stated that the 15 meters (50 ft) setback requirement is difficult to meet in urban environments and that this waiver will provide an opportunity for generators to safely accumulate ignitable or reactive waste within 15 meters (50 ft) of the property line. 
Response: EPA thanks the commenters for their support. We agree with the commenters that the 50 foot setback requirements is difficult to meet in an urban environments, specifically when the property has a width of 100 feet or less. Generators who can't meet the 50 foot requirement will now be able to apply for a site specific waiver allowing generators to safely accumulate their ignitable and reactive waste within 50 feet of their property line. 

General Concerns of the Waiver

Comment: Two commenters had concern regarding a generator's compliance with the waiver and, generally, how the waiver process will work (Commenter Nos. 112 and 264). These commenters suggested that clarification is needed regarding documentation and notification of the waiver. 
Response: EPA thanks the commenters for their suggestions and a discussion of the steps involved for obtaining the waiver is discussed below. 
If a generator is seeking a waiver so that they can store ignitable and reactive waste within 15 meters (50 feet) of their property line then they must contact the proper authority having jurisdiction (AHJ) over the fire code at the generators location. An AHJ may or may not be the fire marshal, fire chief, building official, or another official as designated by the state or local government. EPA believes that the proper AHJ should be easy to determine since the term "AHJ" was developed by the National Fire Protection Association (NFPA) and has been adopted by most state and local governments. The AHJ may then either deny, approve, or approve with conditions depending on their review of the various factors at the generators site. If approved, the generator must maintain a record of the written approval as long as ignitable or reactive hazardous waste is accumulated in this area. 
With respect to this waiver, EPA recognizes the AHJ's authority over the fire code and we believe that the AHJ is the most qualified person to review all the factors on the generators site and properly determine if/how this waste can be safely stored within 50 feet of the property line. As such, any conditions for approval, expiration date, inspections, enforcement, revocation, etc. of the waiver is at the discretion of the AHJ. Thus, EPA's involvement with this waiver may be kept to a minimum. EPA may review the approved written waiver during regular inspections to ensure the generator is in compliance with the conditions in the waiver. If an EPA inspector has a concern with an approved waiver, then they may bring their concern to the attention of the appropriate AHJ. 
The generator must maintain their accumulation area for ignitable and reactive waste as specified in the approved waiver and if conditions at the accumulation area change then the generator should contact the AHJ to reassess their site and update their approval, if needed.
Keep in mind that under section 3006 of RCRA, individual states can be authorized to administer and enforce their own hazardous waste programs in lieu of the federal program. States that are authorized to implement the RCRA program have authority to promulgate regulations that are more stringent than the federal program. EPA recommends that the generator consult with the appropriate authorized state agency prior to requesting this waiver as the requirements may differ from state to state.

Comment: One commenter suggested that accumulating ignitable and reactive waste in an urban environment presents a danger to the local public and the generator should not be able to hold this waste on-site (Commenter No. 264). 
Response: EPA disagrees with the commenter and believes that ignitable and reactive waste can be held on-site in an urban environment with proper precautions set by the AHJ with respect to the fire code. EPA considers the AHJ to be an expert in fire safety and should have the expertise to determine a proper place for accumulating ignitable and reactive waste for a generator located in an urban environment without posing a risk to the public. It is the prerogative of the AHJ to require additional precautions prior to approving this waiver. These precautions may or may not include fire barriers, sprinkler systems, alarm systems, training, inspections, quantity restrictions, and more. Furthermore, the AHJ may also deny this waiver if they determine that the danger is too great and it is simply not possible to safely accumulate this waste on-site. 

Comment: One commenter (Commenter No. 168), although generally supportive of the provision for a waiver to buffer zone requirements, recommended that retail facilities should be exempt from this requirement, noting that the waiver request process would be unnecessarily cumbersome because of the large number of retail stores and because requests may not be a one-time occurrence. Reasons given for multiple waiver requests involved changing product offerings, rearranged storage areas or changing locations (presumably the store locations). The commenter also noted that unsold/returned items that might be considered wastes will be in the same form and packaging as they were when offered for sale to consumers in much larger quantities.

Response: EPA understands that RCRA regulations, which were developed primarily for manufacturing settings, are not always the best fit for the retail sector. EPA also understands that the situation in the retail sector is unique in that consumer goods may become unsalable at a store for a variety of reasons, after which these goods are managed through the reverse distribution process for eventual donation, liquidation or disposal as hazardous waste. The Generator Improvements rule was developed to address a number of issues facing the hazardous waste generator community as a whole, including certain issues relevant to the retail sector, such as the buffer zone requirement. EPA believes the waiver to the buffer zone requirement, which applies only to hazardous wastes from large quantity generators, will provide relief for retail stores. EPA does not believe that the reasons cited by commenters to support the cumbersome nature of the waiver request process is sufficiently persuasive to warrant creation of an exemption of the buffer zone requirement for retail stores. 

Use of the Fire Department to Issue Waiver

Comment: Eight commenters agreed with the proposal that the local fire department is knowledgeable and able to determine if it safe to store ignitable and reactive waste within 50 feet of the property line (Commenter Nos. 116, 131, 134, 168, 181, 182, 185, 217, and 256). However, two commenters suggest that some fire departments are not the appropriate entity to make determination on this waiver or the area is unincorporated and there are no local fire departments (Commenter Nos. 106 and 112). Another commenter suggested that it would be more appropriate to request this waiver from the authority having jurisdiction (AHJ) over the fire code (Commenter No. 256).

Response: EPA thanks the commenters for their suggestions and we believe that there is some confusion as to who exactly can approve this waiver. EPA originally proposed that the generator contact their local fire department for this waiver but, as some commenters pointed out, the local fire department may not be the designated official to interpret and enforce the fire code. The Agency did not intend to restrict the ability of those who can approve this waiver to only local fire departments. However, the Agency did intend that the entity or individual granting this approval has detailed knowledge of the fire code, has the ability to evaluate the site conditions to determine a safe and practical place for storing ignitable and reactive wastes, and is authorized by the state or local government to enforce the fire code. In order to clarify who can approve this waiver, the Agency decided to change the terminology from the "fire department" to the "authority having jurisdiction (AHJ)" over the fire code within the facility's state or locality, as suggested by one commenter. 
AHJ is a term developed by the National Fire Protection Association (NFPA) and has been adopted by several state and local governments. Considering the wide use of the term "AHJ" in various fire codes, the Agency believes it will be easier for the generator to determine who can grant this approval. An AHJ may or may not be the fire marshal, fire chief, building official, or another official as designated by the state or local government. If the generator is located in an unincorporated area then EPA recommends that the generator work with their state and local government to determine the appropriate official. 


Comment: We heard from two commenters suggesting to allow the generator to defer to the local applicable fire codes rather than contacting their local fire department to approve the waiver (Commenter Nos. 217 and 232). 

Response: Simply deferring to local applicable fire codes would be an easy alternative for generators rather than obtaining an approval from an AHJ. However, at this time, the Agency believes that deferring to a local fire code would be very complicated on a national level because the fire code may vary from one place to the next. There would be no national consistency and, specifically in unincorporated areas with no fire department, there may be a danger to the local community or the facility itself. Due to the dangers involved, EPA believes that it is important that the generator contacts the proper AHJ, an expert in fire safety, to review the conditions of the generator's site and make an accurate determination for the accumulation of reactive and ignitable waste.


Comment: One commenter suggested that EPA should intercede if the fire department neglects to respond to the waiver request (Commenter No. 181).

Response: EPA thanks the commenter for this suggestion but EPA typically does not have the personnel with the expertise to evaluate a site and determine a safe and practical location to accumulate ignitable and reactive waste that is within 50 feet of the property line. This waste can be very dangerous if stored improperly and, thus, EPA believes that an expert in fire safety must be consulted to determine the proper storage of this waste. Furthermore, EPA does not have the authority to require an AHJ to respond to a waiver request. With respect to this waiver, EPA recognizes the AHJ's authority to issue and enforce this waiver but it is AHJ's prerogative to do so. Otherwise, EPA recommends that generators work with their states and local government to find an appropriate official that will review your waiver request. 


Expansion of the Waiver Provision to TSDFs

Comment: EPA heard from eight commenters that support extending the waiver provision to TSDF facilities (Commenter Nos. 85, 131, 134, 181, 182, 214, 217, and 232). Many commenters feel that this provision should not be limited to just generators and TSDF facilities have just as much need for this flexibility. 

Response: EPA thanks the commenters for their support of the extension to TSDFs but EPA determined that TSDFs already go through an existing permit process, including public notice and comment, to determine site specific conditions that include identifying locations for accumulating of hazardous waste. Considering that parts of the TSDF permit process may be bypassed if owners/operators of TSDFs were allowed to apply for this waiver, EPA believes that it is not appropriate to extend this waiver to TSDFs. 

Other Comments

Comment: One commenter generally agreed with the waiver provision but suggested that the waiver should include a risk assessment (Commenter No. 126).

Response: EPA disagrees that a risk assessment should be a requirement for the waiver. EPA believes the AHJ will have sufficient knowledge to make assessment of the generator's site and determine a safe place to store ignitable and reactive waste. However, the AHJ may require a risk assessment as a condition of the waiver, if they believe it is necessary. 

Comment: One commenter questioned how this waiver will impact the generators insurance policy (Commenter No. 116). 

Response: It is difficult to predict how this provision will affect a generator's insurance policy because each generator may have different conditions for storing their hazardous waste. EPA recommends that the generator contact their insurance provider to discuss any changes to their policy prior to changing their accumulation area of ignitable and reactive wastes.

Comment: One commenter suggested that "No Smoking" signs near ignitable and reactive wastes are unnecessary if the entire site is a non-smoking area (Commenter No. 219). 

Response: EPA thanks the commenters suggestion but we believe that the posting of "no smoking" signs is prudent wherever ignitable or reactive waste is being handled to further ensure that accidental ignition or reaction of ignitable or reactive waste does not occur. In any case, this suggestion is out of scope from what was proposed and EPA cannot make any changes to this requirement at this time that are beyond the scope of the proposal. 

Section 7.1.1 - Does waiver provide sufficient protection

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.2 - Are fire departments appropriate for evaluating waivers

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.3 - Revising to include language from 265.17(a)

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.4 - Adding a waiver provision for part 264 and part 265 facilities

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.5 - Other

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 8 - Reorganization of regulations


Section 8  -  Reorganization of the Regulations/ Section 8.1 Need for reorganization
(a) Comment: Some commenters stated that they supported the reorganization of the generator regulations in the proposed rule. (0076, 0098, 0138, 0139, 0146, 0149, 0164, 0174, 0185, 0189, 0206, 0207, 0208, 0212, 0219, 0228, 0230, 0231, 0235, 0240, 0242, 0248, 0249, 0253) Commenters stated that the revisions should reduce confusion and frustration with the regulations, encourage better understanding and compliance and agreed with EPA that the regulations are badly in need of an update. (0146, 0207, 0212, 0219) One commenter stated that they supported reorganizing the regulations as long as no new substantive obligations for CESQGs and SQGs result from the reorganization. (0253)
(a) EPA Response: EPA agrees with the commenters and is finalizing the reorganization of the regulations to make them more user-friendly and to thereby improve understanding of the regulations and compliance with them. 
(b) Comment: Some commenters opposed the reorganization. (0093, 0129) Commenters stated that the program is well-entrenched and should be retained unless there is a compelling reason to change it, that there would be significant work required to update the materials used to implement the program, and that states that adopt the rules verbatim will face a cumbersome task of revision their regulations. (0093, 0129, 0217) 
One commenter stated that they saw no need for the reorganization or an improvement in the proposed language. (0190) 
(b) EPA Response: EPA disagrees that there is no need to reorganize the regulations and is finalizing this part of the rulemaking. EPA has heard from many stakeholders that the organization of the existing regulations is illogical and hard to follow. Many of the comments to this proposal continue to echo that view. Although many current users of the regulations have come to understand them, new generators and state regulators are always being added to the community of those using the generator regulations. Reorganizing the regulations to reflect the full content of the regulations now rather than what they contained 35 years ago when first promulgated will make those regulations easier to understand for all the new users and small generators who may not currently be able to understand their requirements without help from a third-party. EPA plans to assist states in updating their rules and implementing the changes to the generator program as a part of continuing support for this rulemaking after promulgation. 
(c) Comment: Commenters stated that EPA should work closely with the regulated community and states going forward if these revisions are finalized and to commit to educating the regulated community. (0129, 0230)
(c) EPA Response: EPA agrees with the commenters and plans to work closely with the regulated community and the states implementing the generator regulations to train and educate them about the revisions to the federal regulations. 

Section 8.1 - Need for reorganization

Comments organized to this section of the comment outline have been responded to under Issue 8. 

Section 8.2 - Areas that work well (support)

(a) Comment: Commenters supported the reorganization of the regulations. (0085, 0134, 0149, 0185)
(a) EPA Response: EPA agrees with the commenters and is finalizing the reorganization of the regulations to make them more user-friendly and to thereby improve understanding of the regulations and compliance with them. 
(b) Comment: Commenters stated that they support the following proposed reorganizations of the generator regulations: 
Consolidation of generator regulations in part 262 and the minimizing of cross references. (0225, 0232, 0240, 0257)
General support for the organization in the proposed regulations, separating the regulations into discrete sections for hazardous waste determinations and recordkeeping; generator category determinations; requirements for VSQGs, SAAs, SQGs, and LQGs; EPA ID numbers; and part 262 subpart L for emergency preparedness and response, with specific comments for improvement. (0178) 
Moving the contents of 265.17 into the LQG requirements in 262.17. 
Integrating the material previously found in section 261.5 into part 262. (0082, 0178, 0185, 0196, 0235) One commenter stated that this change would make it easier for authorized states to modify the counting regulations of state-only regulated wastes. (0196) 
Moving most of the generator regulations into part 262. (0160) 
Simplifying and standardizing the Satellite Accumulation Area and Central Accumulation Area requirements. (0127) 
Incorporating the preparedness and prevention requirements for SQGs into the proposed 262.16 to add clarity and assist the regulated community (0195, 0248) and including the LQG preparedness and prevention regulations in subpart M of part 262. (0248)
(b) EPA Response: EPA agrees with the commenters and is promulgating these provisions in the final rule. 

Section 8.3 - Areas that do not work well (oppose)

(a) Comment: One commenter added that it would be helpful to add a footnote or parenthesis when a regulation cites another part or section of RCRA. (0235)
(a) EPA Response: In this final rule, EPA has tried to limit cross-referencing to the extent practical in the generator regulations, but sometimes a reference is still necessary or most convenient. EPA tried to write the regulations to be specific about the regulation being referenced when possible, but it cannot do so when the regulations that will apply to the generator depend on the specific type of waste, process type, or other site-specific situation. These final rules will much improve the regulations in this regard, however. 
(b) Comment: One commenter stated that the reorganization of the regulations would require that time and money be spent ensuring the new references are incorporated into procedures, materials, and other documents. (0123) One commenter stated concern that the reorganization is an unnecessary change with administrative burden that would lead to more confusion, not less. (0224)
(b) EPA Response: EPA disagrees that reorganizing the regulations is unnecessary and is finalizing this part of the rulemaking. EPA has heard from many stakeholders that the organization of the existing regulations is illogical and hard to follow. Many of the comments to this proposal continue to echo that idea. EPA acknowledges that changes to federal guidances and forms will be necessary due to the reorganization and that states that rely on the structure of the federal regulations in their state programs will have to make similar changes. EPA plans to assist states in updating their rules and implementing the changes to the generator program as a part of continuing support for this rulemaking after promulgation. 
(c) Comment: One commenter stated that EPAs revision of the language copied from part 265 into part 262 to change the word "facility" to "site" is confusing, as "site" is meant throughout RCRA to refer to the entire land area, not the hazardous waste accumulation areas only and that EPA should find a different term. (0078) 
(c) EPA Response: EPA is not finalizing this proposed revision and has reverted to the word "facility" in the final regulations in these areas. 
(d) Comment: One commenter suggested that EPA locate the requirements for VSQGs in 262.14, SQGs in 262.15, LQGs in 262.16 and SAAs in 262.17. (0152)
One commenter stated that the most helpful organization of the regulations would be a progressive format in which all the shared requirements are listed first and then additional requirements follow progressively, increasing as the generator status increases. (0224)
One commenter suggested that all cross-referencing be eliminated from the generator regulations and the full requirements for CESQGs, SQGs, and LQGs be included in segregated sections, despite the increased duplication. (0174) 
One commenter stated that the referencing of the part 265 requirements in the current organization of the regulations has been successful and does not need to be changed. (0263)
(d) EPA Response: As is evident from the variety of comments received on alternative reorganizations, EPA had a variety of options in reorganizing the regulations for generators. EPA determined that the regulations for SAAs should be in § 262.15, followed by SQGs in § 262.16 and LQGs in § 262.17 because SAAs could potentially be in use at either SQGs or LQGs and therefore that section was relevant to both categories of generators and should therefore appear before either of them in the regulations, not after them. In addition, the regulations are generally organized to match the process that a generator goes through as it manages hazardous waste under RCRA and the management of the hazardous waste at an SAA would temporally come before management under the conditions at either an SQG or an LQG. For these two reasons, EPA determined that the current order of the reorganized regulations makes sense. 
Regarding a progressive approach to the regulations, EPA determined that this approach is not practical because the regulations do not lend themselves to a perfectly progressive system. In some cases, such as the emergency preparedness and prevention regulations, the regulations for SQGs and LQGs are similar in some areas but not identical in a way that the commenter describes. In addition, EPA thought that an organization of the regulations in this manner would make it difficult for an LQG to be able to find all the regulations that apply to one part of its operation in one place, rather requiring that they consult the regulations for CESQGs, SQGs, and LQGs for that topic to get a full picture of the requirements and EPA did not consider this an improvement to the current regulations. Regarding cross-referencing, EPA has sought wherever practical to eliminate cross-referencing, in response to many comments received in outreach about this effort but there were some areas where the amount of added language to the Code of Federal Regulations would have been significant and excessive. EPA has limited that cross referencing to the longest sections of regulations and thinks this will greatly improve the usability of these regulations for the majority of the users. 

Section 8.4 - Errors/oversights in proposed regulations

(a) Comment: Commenters identified some mistaken references throughout section 262.16 in 262.16(b), (d), and (f), and provided suggested correct language for those references. (0082, 0214, 0217) 
(a) EPA Response: EPA agrees with these comments and has corrected the references in the final rule. 
(b) Comment: Commenters stated that section 262.17(c)(4)(i)(B) or (c)(4)(iii) may be missing provisions for tracking accumulation start dates for tanks. (0082, 0217) 
(b) EPA Response: The provisions for accumulation of F006 by an LQG under the "180-day Rule" in § 262.17(c) are based on the regulations coming from § 262.34(g)-(i). EPA did not revise these regulations as a part of this rulemaking, just moved them to a new section of the regulations. 
(c) Comment: One commenter stated that the proposed language duplicated the 40 CFR 262.17(a)(5) labeling and marking regulations in 40 CFR 263.12 for transporters and in the 40 CFR 268.50 prohibition on storage. (0156)
(c) EPA Response: EPA purposefully used the same marking and labeling language throughout the generator regulations to ensure that there is consistency in the marking and labeling of hazardous wastes from cradle to grave in the hazardous waste management system because each handler must mark and label in the same fashion.
(d) Comment: One commenter recommended that EPA make identical changes to part 267 for standardized permits as it is making to parts 264 and 265. As proposed, it implies that the holders of standardized permits cannot take "on-line" training and must include the closure cost estimate in the biennial report, etc. (0156)
(d) EPA Response: EPA is not finalizing changes to parts 264 and 265 specific to the contents of hazardous waste permits and will not be making conforming changes in part 270. 
(e) Comment: One commenter stated that the word "may" in proposed section 262.18(b) should be changed to a "must." (0178)
(e) EPA Response: EPA agrees with this comment and has made this change in the final rule. 
(f) Comment: One commenter asked why section 262.16(b)(3)(i) is reserved. (0214)
(f) EPA Response: EPA reserved this particular section to make this section of the regulations parallel to the previous regulations in § 265.201, from which these regulations were copied. EPA determined that maintaining a parallel structure would assist small quantity generators making a transition from the previous organization to the new reorganized regulations. 

(g) Comment: One commenter stated that § 262.16(b)(3)(vi) should include a reference to part 268. (0214) The commenter argued that the reference in § 262.16(b)(7) to part 268 is not sufficient and that part 268 requirements are significant but are given less space in the generator rule than other requirements like documenting attempts to make emergency planning arrangements. (0214)
(g) EPA Response: The final rule includes a reference to part 268 in this section. 
(h) Comment: One commenter stated that in 262.16(f) it is not clear how long the SQG may hold the rejected waste while attempting to make alternative disposal arrangements. The commenter requested that an SQG must maintain records documenting that they approve sending the shipment to an alternate TSDF and stated that they recently saw a case in which the generator stated it was unaware of a shipment being sent elsewhere but the broker claimed the generator had approved it and there was no documentation. (0214)
(h) EPA Response: The language in the relevant section of this rulemaking (§ 262.16(e) of the final rule) regarding rejected loads is not a change to the existing regulation in § 262.34(m), but has been moved as part of the reorganization. EPA is not making changes to the rejected load provisions as a part of this rulemaking. 
(i) Comment: One commenter stated that § 262.17(a)(1)(v) does not include a requirement to keep written records of the inspections for three years. (0214)
(i) EPA Response: EPA took comment on a documentation requirements for inspections, but did not propose it, which is why it was not in the proposed regulatory text. EPA is not finalizing this provision. 
(j) Comment: One commenter stated that § 262.40 should include a provision for keeping copies of inspection or training records, even though these are not included as "independent requirements." (0214)
(j) EPA Response: EPA has determined that the documentation requirements for training belong near the training requirement in the sections dedicated to conditions for exemption for large quantity generators for ease of finding them and to maintain their position in the regulations as conditions and is finalizing them in that section. As part of its outreach in implementing the generator rule, EPA plans to put out guidance on the new regulations and expects that a guide to what recordkeeping requirements apply to each generator type would be a part of that. 
(k) Comment: One commenter stated that the independent requirements and conditions for exemption for each category of generator should be located together in the regulation to make them more user friendly. (0217)
(k) EPA Response: EPA has determined that the two types of regulations should be listed separately in part 262 because of the differing natures of those that are independent requirements as opposed to those that are conditions for exemption and because of the conditions for exemption are a distinct type of regulatory requirement that should be treated separately from the independent requirements. EPA believes that the new organization of the regulation improves the current regulations greatly in this area and intends to release training and guidance when implementing the rule that will make it clear what all the requirements are for each category of generator. 
(l) Comment: One commenter stated that § 262.10(a)(2) should reference on-site treatment of hazardous waste in tanks and containers with other permitting exemptions. (0217)
(l) EPA Response: EPA does not agree that a reference to on-site treatment of hazardous waste in tanks and containers should be included with the list of generator categories and where to find the conditions for exemption that correspond with each generator category in the regulations. This section is meant to indicate where in the regulations the reader can find the conditions for each category and to explain that without the conditions for exemption, any generator that is accumulating hazardous waste would be a facility storing hazardous waste. A revision such as the one the commenter suggests would be confusing in this context. 
(m) Comment: One commenter suggested that EPA move § 262.10(b) before § 260.10(a)(1) and include a reference to § 262.11(a)-(d) in this section as well, since all generators must use § 262.11(a)-(d) in conjunction with § 262.13. (0217) 
(m) EPA Response: EPA is not making this change in the final rule and believes that starting § 262.10 with a list of the independent requirements for each category is the clearest approach to the regulations and is retaining this structure in the final regulations. EPA also has determined that the reference in § 262.10(b) to § 262.13 for making a generator category determination is appropriate, since the category a generator belongs to is critical in determining which of the subsections of the generator regulations are applicable to that generator.
(n) Comment: One commenter stated that in proposed regulatory text at § 262.11(d), there should be an "or" after §262.11(d)(1)(ii) and before §262.11(d)(2). (0217)


(n) EPA Response: EPA has revised the language in this section in the final rule to make clear that a generator must test to make a waste determination only when generator knowledge is insufficient to make that determination. 

(o) Comment: One commenter suggested adding subparagraphs (i) through (v) to §262.11(d)(2). (0217)


(o) EPA Response: EPA has determined that subparagraphs are not appropriate for this paragraph (finalized as § 262.11(d)(1)) because the ideas belong together and are not easily distinguished into subparagraphs. 

(p) Comment: One commenter suggested that the wording of § 262.13(a) be changed: Instead of "a generator's category is determined monthly..." it should say "A generator must determine what generator category it falls into monthly..." (0217)
(p) EPA Response: EPA agrees that its wording in this area was not precise in the proposal and has revised it in a manner that is consistent with the commenter's suggestion. 

(q) Comment: Commenters stated that the introductory paragraph of §262.14(a) is confusing and suggested it should be re-written to be similar to § 262.16 and § 262.17, arguing that the re-organization would bring a much higher degree of clarity for VSQGs if VSQG requirements were organized the same way as SQG and LQG requirements. (0165, 0217)
(q) EPA Response: The introductory language in § 262.14 for VSQGs has been revised in the final rule to more closely match the introductory language in §§ 262.16 and 262.17. 


(r) Comment: One commenter stated that the language of § 262.14(e) should say "may generate hazardous waste in accordance with subpart L" or "may generate and accumulate hazardous waste in accordance with subpart L" instead of "may accumulate hazardous waste in accordance with subpart L." (0217)
(r) EPA Response: EPA agrees with this comment and has made a change in the final rule accordingly. 

(s) Comment: One commenter stated that § 262.15(a)(1) states that leaking containers must be either (1) transferred to a non-leaking container, or (2) transferred and managed in the central accumulation area. The commenter added that while the second option references transferring the waste, it does not specifically state that the waste must be transferred into a non-leaking container prior to moving the waste to central accumulation. Further, neither scenario provides a timeframe for transferring the waste. The commenter recommended providing more detail for scenario #2 and adding the word "immediately" to both scenarios #1 and #2. (0217)
(s) EPA Response: EPA agrees with the commenter and has revised the language in § 262.15(a)(1) to add the word "immediately" in both places and to state that the central accumulation area must be operated in compliance with the regulations, which would preclude leaking containers in the second scenario. 

(t) Comment: One commenter stated that § 262.16 states that "A small quantity generator may accumulate hazardous waste on-site without a permit or interim status, and without complying with the independent requirements of parts 124, 264 through 268, and 270 of this chapter...". The commenter added that the exclusion of part 268 appears to conflict with the regulatory requirement found in §268.7(a), which requires generators to determine if their waste has to be treated before being land disposed and added that while the requirement to comply with all of Part 268 is included further below, the exclusion referenced in the beginning of §268.16 may confuse some readers. (0217)
(t) EPA Response: EPA has revised the introductory language in section 262.16 to not include a reference to part 268. 

(u) Comment: One commenter stated that the § 262.16(b)(3)(iii)(E) cross-reference to §265.15(c) is unnecessary; the text at §265.15(c) is very short and should be included here instead of being referenced. (0217)
(u) EPA Response: EPA agrees with the comment and has revised § 262.16(b)(3)(iii)(E) to include the relevant text rather than reference it. 

(v) Comment: One commenter asked whether in the § 261.33(e) introductory paragraph, did EPA intend to remove the comment and "These wastes and their corresponding EPA Hazardous Waste Numbers are:" The commenter also asked if in the § 261.33(f) introductory paragraph, did EPA intend to remove "unless otherwise designated" (it appears that some wastes in the table are otherwise designated), the comment, and "These wastes and their corresponding EPA Hazardous Waste Numbers are:" (0217)


(v) EPA Response: The use of the five asterixes in the regulatory text in the Federal Register notice ("* * * * *") identify that the comments and the introductions to the tables in both the sections the commenter mentioned. However, EPA did not mean to delete the language "unless otherwise designated" and has retained that language in the final rule. 

(w) Comment: One commenter stated that in the proposed § 262.41(a), the first mention of "reporting year" occurs before it is defined as the calendar year previous to the even numbered year when the report is due and suggested that EPA replace "A generator who is a large quantity generator for at least one month of the reporting year must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of each even numbered year for all hazardous wastes generated during the previous calendar year." with "A generator who is a large quantity generator for at least one month of an odd numbered year (reporting year) must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of the following even numbered year for all hazardous wastes generated during the reporting year." The commenter stated that this also lines up with the implication that applicability of the requirement to submit a biennial report should be re-determined for every generator (based on monthly generator status) at the end of every odd numbered year by changing "each even numbered year" to "the following even numbered year". (0217)


(w) EPA Response: EPA agrees with the comment and has revised the language in the final rule to define what it means by a "reporting year" (i.e., an odd-numbered year). 

(x) Comment: One commenter stated that § 262.44 refers to §262.40(c), which is proposed for elimination and suggested that EPA correct the reference, possibly replace with reference to §262.11(e); see above regarding VIII.B. The commenter suggested that EPA add a reference to §262.42(c). The commenter also stated that § 262.44 references §262.42(b) exception reporting but not section §262.40(b). §262.42(b) specifies reporting requirements but not the requirement to retain records for 3 years. This is covered by §262.40(b), which SQGs are not asked to comply with because it also includes retention of biennial reports. (0217)
(x) EPA Response: EPA has revised the final rule to not remove and reserve 262.40(c), but to change it to a reference to section 262.11(f) instead. 
(y) Comment: One commenter identified a series of typos from the proposed preamble: 
Page 57922 - Last Paragraph: The acronym for Large Quantity Generators (LQGs) was misspelled.
Page 57923 - Top Right Column: The reference to §261.5(e)(3) is incorrect. The correct citation is §261.5(f)(3).
Page 57928 - The first sentence of the first full paragraph in column 3 begins, as follows: "With the promulgation of the SQG regulations in 1986...". The correct reference should be to CESQGs as opposed to SQGs. (0217)
(y) EPA Response: EPA notes the typos from its proposed rule. 
(z) Comment: One commenter made the following comment regarding page 57992 - §262.10(a)(1)(i)(H) and §262.10(a)(1)(ii)(G): These sections are missing the word "and" and has an incorrect order of the applicable part titles. Suggested correction as "(H) Part 262 subpart E and subpart F  -  Exports and imports of hazardous waste." (0217)
(z) EPA Response: EPA has revised this language in the final rule to remedy this error. 

(aa) Comment: One commenter made the following comment regarding page 57992 - §262.10(g)(1): Suggest adding word "independent" within "applicable requirement" to read as "...generator's violation of an applicable independent requirement in 40 CFR ...". This addition would make understanding the section easier for the regulated community and would also mirror it to language elsewhere in §262.10(a) as well as §262.10(g)(2). (0217)
(aa) EPA Response: EPA has revised this language in the final rule, including using the term "independent requirement" in place of "applicable requirement." 

(bb) Comment: One commenter made the following comment regarding page 57993 - §262.11(e): Title section simply "Recordkeeping" if accept argument to extend waste determination recordkeeping requirement to VSQG. (0217)


(bb) EPA Response: EPA is not extending recordkeeping for waste determinations to VSQGs in the final rule and thus has not made a change to this section title. 

(cc) Comment: One commenter made the following comment regarding page 57994 - §262.14(a): Appears to be a comma, necessary for understanding, missing after the word below in the fifth line, as "...except the paragraphs of §262.11 specified below, or the requirements of parts 124..." (0217)


(cc) EPA Response: EPA has revised the introductory language for section 262.14 in the final rule, making this comment no longer applicable. 

(dd) Comment: One commenter made the following comment regarding page 57994 - §262.14(a)(2): Suggested re-write as "(2) The very small quantity generator complies with §262.11(a) through (e) of this chapter." (0217)
(dd) EPA Response: EPA is not extending recordkeeping for waste determinations to VSQGs in the final rule and has not made this suggested change.

(ee) Comment: One commenter made the following comment regarding page 57996 - §262.16(b)(2)(iv) and Page 57999 - §262.17(a)(1)(v): Suggest defining "at least weekly" within the regulation text to a more definitive "every seven days" or "every calendar week", in order to avoid confusion and varying interpretations across States and regions on what is "weekly". Also, add the word "record" or "document", such as is proposed in section §264.1101(c)(4), as a better example of definitive language for weekly inspections. (0217)
(ee) EPA Response: EPA has determined that changing the language "at least weekly" to "every seven days" or "every calendar week" is not necessary and is not making commenter's suggested change. In addition EPA is revising the language on inspections in § 264.1101(c)(4), beyond deleting the reference to Performance Track. 

(ff) Comment: One commenter made the following comment regarding page 58002 - §262.18(d)(i): This doesn't follow numbering convention. Should be §262.18(d)(1). (Lower case iv. numeral 1). (0217)
(ff) EPA Response: EPA agrees with the commenter and has made this correction in the final rule. 
(gg) Comment: One commenter stated that the reference in § 268.50(a)(1) still references the requirements in § 262.34. (0217) 
(gg) EPA Response: EPA has replaced this old reference to § 262.34 in the final rule. 

(hh) Comment: One commenter stated that on page 57995 at 262.16(b) there is no provision stating the requirements applicable to the accumulation of acute hazardous waste when more than 1 kg is accumulated. The commenter added that in contrast, the VSQG regulations have 262.14(a)(3)(i), which state that (only) those acute hazardous wastes are subject to the full hazardous waste regulations. ("...all quantities of that acute hazardous waste are subject to full hazardous waste regulation...") (0121)
(hh) EPA Response: This construction of the regulations mirrors the current construction of the regulations, with more information available on this question available in the regulations for VSQGs. Section 262.15 for SQGs makes it clear that the accumulation limit for hazardous waste is a condition for exemption from permitting requirements for the generator and not meeting that condition results in loss of that exemption. 

Section 8.5 - Helpful outreach and/or guidance post-final rule

(a) Comment: One commenter stated that amending state codes to maintain equivalency will be a considerable task and requested that EPA provide addition support for state adoption and program authorization efforts. (0145) 
(a) EPA Response: EPA intends to provide guidance, training, and other assistance for state agencies implementing the new generator regulations as well as for industry and other entities complying with the new regulations. 
(b) Comment: One commenter suggested that §§262.11, 262.13, 262.15, and 262.18 be added to Table 6 in the proposed preamble, which crosswalks existing citations to the proposed citations for SQGs and that a more inclusive list be included for LQGs as well. (0217) 
(b) EPA Response: In the final rule the table that crosswalks SQG regulations is Table 4. Sections 262.11, 262.13, and 262.18 are crosswalked in Table 1 for general standards for all generators and § 262.15 is crosswalked in Table 3 for SAAs. 

Section 8.6 - Other

Comment: One commenter suggested that instead of being reserved, §262.12 be used to add the land disposal restriction notice and certification requirements for generators that ship waste off site and the § 268.7 requirement for a written waste analysis plan. (0214)
EPA Response: EPA has determined that it is most appropriate to reserve § 262.12 to reduce any future confusion with documents or memos that refer to this section. If we were to replace the contents with new unrelated material, future readers would always need to know if any given materials were written before or after this rule change to fully understand what a reference to §262.12 means. 

Section 9 - Technical corrections and conforming changes

Responses for Sections 9-9.4 of Comment Outline

Comment: Six commenters supported the proposed technical corrections and conforming changes (Commenter Nos. 85, 174, 185, 192, 232, and 248). They believed that these corrections were necessary in the final rule to promote clarity and readability of regulatory language.
Response: EPA thanks the commenters for their support and agrees that these conforming and technical changes are needed to ensure the regulations are properly and clearly conveyed to the generator. 
Comment: § 262.44 incorrectly refers to § 262.40(c), which is proposed for elimination (Commenter No. 82). 
Response: EPA has corrected this error by updating the language in §262.40(c) which now states "See § 262.11(f) for recordkeeping requirements for documenting hazardous waste determinations." 
Comment:§ 262.44 does not references § 262.40(b), which requires SQGs to maintain records for 3 years (Commenter No. 82).
Response: EPA has corrected this error by updating the language in § 262.40(c) which now states "See § 262.11(f) for recordkeeping requirements for documenting hazardous waste determinations." As such, a referenced to § 262.40(b) is not needed since §262.44 references § 262.40(c). 
Comment: The commenter believes the language in paragraph § 262.14(a) is confusing and needs to be rewritten for clarity (Commenter No. 92).
Response: EPA agrees with the commenter and we have modified the language in § 262.14(a) to be clearer.

Comment: Regarding § 262.14(a)(4)(viii)(B), the commenter suggested adding "to be transferred" when labeling containers that will be consolidated at a LQG. The commenter believes that some generators may read the current language as the requirements for all containers of hazardous waste at the VSQG facility (Commenter No. 92). 
Response: EPA disagrees with adding the phrase "to be transferred" to the label. EPA believes that the structure and the language of the regulations in § 262.14(a)(4)(viii) makes it clear that VSQGs only need to label the waste they are consolidating at an LQG. 

Comment:§ 262.16(b)(2)(iv) references (a)(2)(i) of the same section but the commenter stated that this is an incorrect reference (Commenter Nos. 92 and 178).
Response: EPA thanks the commenters for pointing out this error, and the final regulations now correctly reference § 262.16(b)(2)(i) rather than (a)(2)(i).

Comment: The commenter stated that in § 262.32 a generator is required to mark each shipping container with an applicable EPA hazardous waste number and they ask if the marking is referring to the shipping containers and/or the inner packaged containers (e.g. lab pack containers)? The commenter suggests that regulations indicate "inner" or "shipping" or both before "container" to clarify this requirement (Commenter No. 92).
Response: Thank you for your comment and, to clarify, only the shipping container itself needs to be labeled prior to shipping and the inner package containers (e.g. lab packs containers) do not require labeling for shipping. EPA does not believe that it is necessary to make this change because similar regulatory language existed prior to this rulemaking and it did not appear to create significant confusion.

Comment: On page 57944 of preamble the commenter suggested adding small research labs to list of VSQGs (Commenter No. 92).
Response: EPA thanks the commenter and agrees that small research labs, who meet the definition of a VSQG, may be included in this list. 

Comment: EPA stated in the preamble that if a "VSQG wants to transfer its waste through states that have not adopted the proposed provision, these transit states may . . . impose state requirements on the shipment while it is being transported through the state." The commenter states that this is incorrect and that DOT has authority under HMTA to preempt any state regulation. It would be difficult for a nonfederal hazardous waste transportation requirement to be permissible under HMTA, especially a requirement that would interfere with the transportation of hazardous waste (Commenter No. 126).
Response: EPA understands the commenters concern and we have modified the preamble language due to this concern but, to avoid any potential confusion, EPA still recommends that generators contact any transit states through which the hazardous waste will be shipped to ascertain their policy about such shipments.
Comment: The commenter stated that "thereafter" appears twice in § 262.18(d) and should be replaced with "after its initial notification" to make clearer (Commenter No. 178).
Response: EPA disagrees with this comment because replacing "thereafter" with "after its initial notification" changes the intent of this regulatory language. EPAs intent was to line up SQG re-notification times with a biennial reporting year. The language proposed by the commenter would require SQGs to re-notify every four years from their initial notification, which may occur during a non-biennial reporting year. 
Comment: The commenter believes that the reserved sections § 262.16(b)(3)(i) and § 262.16(b)(3)(v) should be removed because they may be confusing to those reading the regulations (Commenter No. 178).
Response: In § 262.16(b)(3) of the final rule, EPA incorporated all of the text from § 265.201, except for paragraph (a), then removed and reserved § 265.201. Paragraph (a) of § 265.201 is not necessary in the final regulations because it describes what is already stated in § 262.16. However, the Agency decided to preserve the structure of the previous regulations within the final rule so that they may be less confusing to those reading the new regulations. To preserve the structure, EPA reserved sections § 262.16(b)(3)(i) and 262.16(b)(3)(v).
Comment: The commenter stated that § 262.16(b)(3)(iii)(E) makes an incorrect reference to § 265.16(c) because this section does not apply to SQGs (Commenter No. 178).
Response: EPA has updated this section and the above reference to § 265.16(c)has been removed.
Comment: The commenter believes that the language in § 262.16(b)(5) is not clear and should be rewritten to be similar to § 262.17(a)(4) (Commenter No. 178).
Response: EPA has revised this language to be clearer. 
Comment: The commenter stated that the provision under § 262.16(b)(5) limits the accumulation time to 90 days for containment buildings. Did EPA intend to include a 90-day timeframe in this section, or 180 days, as allowed for SQGs in other types of accumulation units(Commenter No. 178)?
Response: Due to the technical complexity associated with containment buildings it is unlikely for an SQG to build a containment building since SQGs accumulate relatively small quantities of hazardous waste. Therefore, EPA decided to keep a 90 day accumulation time in the provision under § 262.16(b)(5).
Comment: The commenter stated the proposed language § 262.16(b)(6)(i)(D) should be revised to add a comma after the word "begins" so that this language is consistent with the construction of proposed § 262.16(b)(6)(i)(A) through (D) as a list (Commenter No. 178).
Response: EPA disagrees with the commenter and believes the proposed language in § 262.16(b)(6)(i) is sufficiently clear and a comma is not needed.

Comment: The commenter believes the proposed § 262.16(b)(7) should be changed from "[t]he generator complies" to "A small quantity generator must comply..." so as to be consistent with the wording in the other subparagraphs within proposed § 262.16(a) (Commenter No. 178).
Response: EPA agrees with the commenter and modified the language in § 262.16(b)(7) to be consistent with other sections. 
Comment: Commenter stated that language in § 262.16(c) may create a misimpression regarding the regulatory consequences of mixing hazardous waste with nonhazardous waste (Commenter No. 178).
Response: This language has been removed and the mixture of hazardous waste with solid waste is now discussed in § 262.13(f).
Comment: Commenter suggested adding the word "such" after the word "accumulate" in §262.16(e) (Commenter No. 178).
Response: EPA disagrees with the commenter and believes the proposed language in §262.16(e) is sufficiently clear.
Comment: A commenter stated that certain sections contain superfluous language (Commenter No. 178). These section include § 262.16(e), § 262.232(b)(4)(i), and § 262.232(b)(4)(ii).
Response: EPA thanks the commenter for their suggestion and evaluated the language in the referenced sections, among other sections, and modified that language as appropriate. 
Comment: § 262.232(b)(4)(iii) states that the episodic generator must "[c]omply with the applicable conditions listed in § 262.16." The commenter stated that it is not clear which of the conditions in that section would be applicable (Commenter No. 178).
Response: In the final rule EPA decided to removed § 262.232(b)(4)(iii) and, thus, a clarification on the conditions that are applicable is not required. 
Comment: § 262.232(b)(5) states that the episodic generator must treat the waste generated from the event or manifest and ship it off site within 45 days. The commenter stated that a generator could both treat and manifest its waste off-site, and that the use of the word "or" may therefore be inappropriate in this section (Commenter No. 178).
Response: EPA disagrees with the commenter since the use of "and" suggests that an episodic generator must both treat and manifest the waste for shipment off-site. An episodic generator may do both if they choose but the generator is not required to treat and manifest the waste for shipment off-site. As a result, EPA finalized this language as proposed. 
Comment: Commenter stated that § 264.1050(b)(2) and 264.1030(b)(3) contains a reference to § 262.34 that needs to be updated (Commenter No. 178). 
Response: EPA thanks the commenter and we updated § 264.1030(b)(3) and 264.1050(b)(2) with the correct references in the final rule.
Comment: The commenter stated that the language in § 270.1(c)(2)(i) is not consistent with the language in §264.1(g)(3) and §265.1(c)(7) (Commenter No. 178).
Response: EPA believes that, while these sections may have a similar purpose, the language does not need to be identical in all three sections. The proposed language in all three sections is clear and reasonable and, thus, the language does not need to be altered.
Comment: Change all occurrences of "waste that are considered hazardous" to "hazardous waste. Also when referring to hazardous waste always add "hazardous" in front of "waste" (Commenter No. 187).
Response: Both phrases appear throughout the hazardous waste regulation text and their meanings are generally understood, thus, EPA believes that no change is needed. In addition, EPA generally attempts to insert the word "hazardous" in front of "waste" when referring to hazardous waste. However, sometimes if we fail to do so due to oversight or other reasons even if we are referring to hazardous waste, it is usually quite evident within the context of a sentence when we are referring to hazardous waste.
Comment: The commenter stated that § 262.232(a)(6) and 262.232(b)(5) reference § 262.233 in citing the 30 day extension to an episodic event; both should be referencing § 262.234, as this is where the provision for the 30 day extension resides (Commenter No. 131).
Response: EPA decided to remove the 30 day extension for episodic generators and, as a result, the language relevant to the 30 day extension in § 262.232(a)(6) and 262.232(b)(5) has been removed. 
Comment: A commenter is concerned that the comments in the current regulations after § 261.33(e) and 261.33(f) will be deleted (Commenter No. 178).
Response: EPA reassures the commenter that the comments after the §261.33(e) and 261.33(f) will remain in the regulations as they were prior to this rulemaking. They were not published with other proposed regulation changes because those comments were not affected by any of the regulatory changes within this rulemaking. 
Comment: The commenter stated that on preamble page 57984 omits § 262.202(b) in the list of sections revised to remove the reference to existing § 261.5(b). § 262.202(b) is correct in the proposed rule on page 58003. Furthermore, the commenter stated that on preamble page 57985 lists §262.201(a) twice and omits § 262.202(a) and 262.204(a) in the list of sections revised to remove references to existing § 262.34. The omitted sections are correct in the proposed rule on page 58003 (Commenter No. 217).
Response: EPA thanks the commenter and we have made the appropriate corrections in the final rule.
Comment: The commenter stated that in § 261.33(f) the proposal states that the entire U list is classified as toxic; the existing regulations in this section state "unless otherwise designated" (Commenter No. 263). 
Response: EPA thanks the commenter and we mistakenly took out the phrase "unless otherwise designated" in § 261.33(f). This was corrected in the final rule. 
Comment: In regard to § 260.10, the commenter stated that "waste" would include water, and believes that the word "wastes" is needed because wastes would often result from the clean-up of spills (e.g., plastic sheeting). Changing to "water" could also imply that wastes generated from the clean-up of a spill of an acute hazardous waste do not need to be managed as acute hazardous waste, which is often incorrect when contact is made (Commenter No. 275).
Response: EPA disagrees with the commenter and believes the word "water" should be kept in this section of the regulations, as proposed. A common sense reading of this regulatory language suggests that items that would likely be contaminated from a spill of hazardous waste are either soil or water or various debris. The contaminated soil, water and/or debris that were cleaned up, as the result of spilled hazardous waste, would then become a "waste" and must be managed as acute hazardous waste. 
Comment: Some commenters suggested rewriting 40 CFR 261.420(g) on personnel training. This section was added personal training requirements for facilities generating or accumulating more than 6,000 kg of hazardous secondary material and depending on the nature of the hazardous secondary material, this training might not be warranted (Commenter Nos. 123 and 263).
Response: The language in 40 CFR 261.420 is a technical correction to the emergency preparedness and response requirements for hazardous secondary material recycling that were finalized in the most recent DSW rule (see 80 FR 1760). As noted in the Generator Proposal, EPA inadvertently left out the language about requiring generators who accumulate more than 6,000 kg onsite to ensure their personnel are familiar with proper waste handling and emergency procedures (see 80 FR 57984). This change corrects that error. Note that parallel language applicable to hazardous secondary material generators who accumulate less than 6,000 kg can already be found in 40 CFR 261.411(c). Without this correction, EPA would technically be requiring generators who store less than 6,000 kg to be familiar with emergency procedures but not requiring the same thing of generators who store more than 6,000 kg.
Since the language is intended to be parallel to that already finalized in 40 CFR 261.411(c) it wouldn't be appropriate to change it in the final rule.



Section 9.1 - Change is unnecessary

There are no comments organized to this section of the comment outline. 

Section 9.2 - Errors


Comments organized to this section of the comment outline are responded to under Issue 9. 

Section 9.3 - Oversights

Comments organized to this section of the comment outline are responded to under Issue 9. 

Section 9.4 - Other

There are no comments organized to this section of the comment outline. 

Section 10 - Electronic tools for streamlining reporting and recordkeeping

Sections 10 through 10.5 of Comment Outline

Electronic tools for streamlining reporting and recordkeeping
The Agency also requested comment regarding the feasibility of developing electronic recordkeeping and reporting tools to improve compliance. Most commenters were generally supportive of EPA pursuing the development of electronic recordkeeping and reporting tools (0078, 0085, 0096, 0123, 0159, 0182, 0206, 0207, 0217, 0229, 0248, 0256, 0264). Commenters were either supportive in general (0085, 0206, 0207, 0217, 0229, 0264), specifically mentioned converting or expanding specific forms, such as 8700-12 (which already has been developed electronically) (0096).Several commenters also identified specific program areas where the Agency should develop electronic forms (e.g., 0182, 0217, 0248).
Several commenters, while supportive, also expressed concerns if EPA were to move forward in developing electronic recordkeeping and reporting forms. Two commenters recommended that all electronic tools be made available on a voluntary basis, with one recommending reporting tools be phased in over a transition period (similar to Toxic Release Inventory reporting). (0133, 0251). Another commenter alerted EPA that while current electronic recordkeeping and storage systems would allow for the long-term retention of records without much difficulty, such electronic reporting would still fall harder on small businesses and should account for this in its decision-making process (0126). 
Response: The Agency will take such comments into consideration should it move forward in developing electronic recordkeeping and reporting tools.
Another commenter was concerned that any electronic data management program put in place be compatible and not preempt or interfere with existing programs, such as CAMEO and TIER2Submit (0191). One commenter at the state level expressed concerns about the capacity/resources of states to develop electronic tools and recommended such tools be developed centrally by EPA and shared with the various states. They also urged EPA to make sure that any tools and systems developed are supported and can be improved quickly as they are rolled out and problems are discovered. (0082). 
Response: The Agency will take such comments into consideration should it move forward in developing electronic recordkeeping and reporting tools.
One commenter expressed concern about the potential increase in the size and complexity of the Site ID form due to changes proposed in the rule. They expressed concerns that generators may find the Site ID form even more intimidating to people who aren't familiar with the RCRA program and suggested EPA carefully consider what to add to the standard Site ID form versus what to place on an optional addendum form. (0125) 
Response: EPA takes note of these comments and will carefully consider them in our desire to avoid unnecessary length and complexity of the Site ID form. 
One commenter (0248) supports allowing private companies to develop electronic reporting and recordkeeping software but worries that the process might be very lengthy. Still another commenter recommended that, "that the EPA, in conjunction with authorized states, seek to define what it wants to receive and when, and then consider what tools already exist or are near-term to deliver that information, rather than exploring the tool first." (0232). Another commenter recommended EPA direct its focus on the development of an electronic manifesting system that would provide an efficient and unified process for gathering, processing, and analyzing inclusive data for all SQGs and LQGs. (0283). 
Response: The Agency will take such comments into consideration should it move forward in developing electronic recordkeeping and reporting tools.
Retail sector commenters also recommended that any electronic reporting requirements take into consideration the unique operations of their sector since they are so different than the typical industrial sectors. (0233, 0260) 
Response: The Agency will take such comments into consideration should it move forward in developing electronic recordkeeping and reporting tools.

One commenter (0131) already has "developed and/or is using vendor supplied tools to help manage waste characterization, on-site waste management including tracking of waste generation and shipments, personnel training, and reporting" and therefore does not support EPA developing these types of electronic tools. However, this same commenter does support developing electronic tools to provide easier initial or revised required notifications proposed in the rule, such as for episodic generators, for LQGs that desire to take advantage of consolidating waste from CESQGs that are within the same company, for generators that close a unit that accumulated hazardous, and for updating the 8700-12 form. 
Response: The Agency believes a specific response to both comments is premature at this time since it has not decided what direction to take, if any, in this area of electronic tools. 

Section 10.1 - What reports and data should have electronic reporting

All comments organized to this section of the comment outline are responded to under Issue 10.

Section 10.2 - Priorities for electronic reporting

All comments organized to this section of the comment outline are responded to under Issue 10.

Section 10.3 - Third-party electronic reporting vendors

All comments organized to this section of the comment outline are responded to under Issue 10.

Section 10.4 - State experiences with electronic reporting

All comments organized to this section of the comment outline are responded to under Issue 10.

Section 10.5 - Other

All comments organized to this section of the comment outline are responded to under Issue 10.

Section 11 - Statutory and Executive Order Reviews

There are no comments organized to this section of the comment outline. 

Section 11.1 - Executive Order 12886 (RIA)

Introduction 
In 2015 the U.S. Environmental Protection Agency (EPA) completed an economic assessment (EA) which assessed the potential future costs and benefits of EPA's September 25, 2015 proposed rule to update the hazardous waste generator regulations. This document addresses public comments on EPA's 2015 EA, which consists of one comment set:
 Docket comments: Organizations submitted 114 comments on EPA's 2015 EA and the potential future costs and benefits of EPA's proposed rule during the 3-month (September 25 to December 24, 2015) public comment period for the 2015 proposed rule.
For the purpose of this document an "organization" is defined as a commenting organization and its spokesperson or an individual citizen without organization affiliation provided. For each comment category, this document provides a table that summarized the docket ID and organizational affiliation (if any). Following each table, this document presents a summary of the major comments, followed by EPA responses to the major comment themes for each subsection. If an organization commented on multiple sections of the EA or costs or benefits of the proposed rule, it appears in multiple sections of this response document. 
General Comments
Comment Summary
EPA received numerous, general comments on the 2015 EA. These included broad comments regarding the predicted future costs or benefits of the proposed rule and tended to express general support or disapproval for the EA methodology or data.
One commenter argued that insufficient data regarding the number of facilities that generate hazardous waste might offer a distorted portrayal of the costs and benefits of the proposed rule (192). 
EPA received numerous general comments discussing the costs of the proposed marking and labeling provision. Commenters argued that the updated labeling requirements will impose burdens without providing benefits (77, 83, 85, 106, 164, 208, 243, 245, 260, 262). 
EPA received numerous general comments discussing the costs and burdens of requiring SQGs to re-notify every other year (93, 98, 107, 185, 189, 200, 229, 240, 257). Commenters pointed that the re-notification requirement increases paperwork burden and costs without any benefits. EPA received one comment discussing the benefit of re-notification to state agencies and the minimal burden for generators (145).
EPA received numerous general comments on the benefits, costs, and economic impacts of the proposed change to allow VSQGs to send hazardous waste to an LQG that is under the control of the same person (87, 91, 98, 107, 110, 121, 135, 146, 154, 163, 168, 171, 183, 187, 192, 195, 206, 214, 217, 220, 225, 226, 232, 236, 240, 248, 253, 254, 256, 257, 258, 282, 289). These included broad comments that pointed out that this change would result in more cost-efficient and effective hazardous waste management. Some commenters argued that restrictions placed on generators who take advantage of the flexibility limit the benefits of the provision. Commenters also discussed the economic benefits of allowing VSQGs to send hazardous waste to an SQG under the control of the same person and allowing VSQGs to send hazardous waste to an LQG that is not under the control of the same person.

EPA received numerous general comments on the costs of requiring an LQG notify either EPA or its authorized state at least 30 days prior to closure of a hazardous waste accumulation unit and 90 days after closure of the site or a hazardous waste accumulation unit (86, 92, 93, 164, 182, 205, 217, 219, 224, 225, 232, 240, 262, 280). Commenters argued that this requirement increases costs and does not provide a benefit. One commenter argued it could encourage LQGs to keep accumulation areas open for longer and then eventual closure costs would be more expensive. One commenter argued that the requirement could be costly and cause delays is it encourages agency officials to direct closure operations in a way that leads to unnecessary sampling. 

EPA received general comments on the costs and benefits of the proposed changes to Satellite Accumulation Area (SAA) standards (121, 183, 189, 209, 244). Commenters pointed out that the costs of applying RCRA training requirements to staff in SAAs would be costly and without benefit. One commenter wrote that requiring the SAA area to be only accessible by lock box would be a large economic burden to generators that have to build the related infrastructure (200). One commenter pointed out that rescinding the reactive hazardous waste memorandum that allowed storage sheds outside of a building where a reactive hazardous waste is generated will force such accumulation areas to be 90-day accumulation areas and increase costs by requiring small amounts of waste to be transported every 90 days in a manner that is not cost-effective (92).

EPA received comments related to the benefits of the emergency response provisions. Commenters argued that the proposed provision would add no environmental benefit (177, 224, 257, 263).

EPA received comments arguing that requiring both LQGs and SQGs to record the results of their weekly inspections would be costly or provide no benefit (93, 232, 253).

EPA received comments requesting EPA to consider the benefits of changing the name of the category from "conditionally exempt small quantity generator (CESQG)" to "very small quantity generator (VSQG)" in relation to the costs (116, 125, 163, 217). Commenters wrote that the name change with require states to update materials, websites, forms, and guidance, and that this updated would be costly. EPA also received comments suggesting the name change will provide a benefit (232).

EPA received comments arguing that the changes and additions Subpart K will not alleviate the costs of the proposed rule (166, 183, 221, 249). 

EPA received comments on the costs and burdens of the proposed clarification to the biennial reporting requirements requiring LQGs to report all of the hazardous waste they generate for the entire reporting year, not just the month(s) the generator was an LQG, and regardless of whether they transferred the waste off site during the reporting year, as well as the added biennial reporting requirements for recyclers of hazardous waste (134, 240, 263).

EPA also received numerous, general comments regarding the predicted future costs or benefits of proposed rule provisions and tended to express general support or disapproval for the EA methodology or data (63, 73, 85, 89, 94, 117, 124, 126, 128, 129, 141, 159, 178, 179, 188, 201, 228, 233, 234, 241, 242, 259, 264, 284).

EPA Response
EPA appreciates the interest of the public regards the 2015 EA.
In response to the comment on input data for the 2015 EA, EPA faced limited input data for the universe of facilities potentially impacted by the rule. SQGs are currently required to submit a one-time notification of their hazardous waste generation activity to EPA in order to obtain a RCRA ID, but they are not required to re-notify EPA of subsequent changes to their activities. VSQGs are not required to notify nor report their hazardous waste generation to EPA. EPA discusses the uncertainties surrounding the estimated universe in the 2016 Regulatory Impact Assessment (RIA).
In response to the general comments that the marking and labeling provision is costly with no benefits, the 2015 EA included a monetized estimate of the costs of expanding the container and tank labeling requirements and a discussion of the qualitative benefits. The 2016 RIA also includes a monetized estimated of the costs of expanding the container and tank labeling requirements and describes the qualitative benefits of the marking and labeling provision.
In response to the comments on the costs of requiring SQGs to re-notify every other year, the 2015 EA provided a monetized estimate of the costs of the re-notification provision. The 2016 RIA provides a monetized estimate of the costs of requiring SQGs to re-notify every four years as EPA is finalizing this change. The 2016 RIA includes a discussion of the qualitative benefits of the requirement.
In response to comments describing the economic benefits of allowing VSQGs to send hazardous waste to an LQG that is under the control of the same person, EPA estimates that this provision will result in cost savings for organizations that take advantage of the provision. EPA did not assess the benefits and costs of allowing VSQGs to send hazardous waste to an SQG under the control of the same person and allowing VSQGs to send hazardous waste to an LQG that is not under the control of the same person as EPA is not adopting these changes.
In response to the comments on the cost of notifying EPA of a closure, the 2015 EA included a monetized estimate of the costs and a discussion of the qualitative benefits of the provision. The 2016 RIA provides a monetized estimate of the costs and a discussion of the qualitative benefits of this provision. 
In response to the comments on the changes to SAA standards, the 2016 RIA does not estimate the costs of applying RCRA training requirements to staff in SAAs because EPA did not finalize this provision. The 2016 RIA does not estimate that costs of building infrastructure to make SAAs only accessible by lock box because EPA did not mandate this in the rule. The 2016 RIA does not include an assessment of the potential costs associated with rescinding the reactive hazardous waste memorandum that will force storage sheds outside buildings where reactive hazardous waste is stored to be 90-day accumulation areas. Although not explicitly stated in the RIA, EPA assumes this cost would be negligible. 
In response to the comments that the emergency response provision would provide no benefits, the 2016 RIA includes a discussion of the qualitative benefits of strengthening the emergency response conditions.
In response to the comments that requiring LQGs and SQGs to record the results of their weekly inspections is costly, the 2016 RIA does not assess these costs because EPA did not finalize this provision.
In response to the comments that changing the name of the category from "conditionally exempt small quantity generator (CESQG)" to "very small quantity generator (VSQG)" would be costly for states, this provision is considered to be of "equal stringency" and therefore states are not required to adopt this change.
In response to the comments that Subpart K will not alleviate the costs of the proposed rule, EPA assessed these predicted costs and cost savings for potentially impacted entities in the 2016 RIA.
Since EPA did not finalize the clarification to the biennial reporting requirements requiring LQGs to report all of the hazardous waste they generate for the entire reporting year, not just the month(s) the generator was an LQG, and regardless of whether they transferred the waste off site during the reporting year, this document does not address comments on the costs and benefits of this provision.

Comments Related to Impacts of Waste Determinations and Documentation Changes
Comment Summary
EPA received numerous comments on the methodology used to estimate the costs of requiring SQGs and LQGs maintain records of their non-hazardous waste determinations and the predicted impacts of the proposed provision (77, 83, 108, 110, 111, 126, 129, 135, 136, 140, 145, 166, 167, 168, 180, 182, 192, 200, 212, 217, 222, 227, 228, 240, 245, 260, 262, 282, 286).
EPA also received numerous comments on the costs of revising the hazardous waste determination recordkeeping regulations to require that SQGs and LQGs maintain records of determinations until closure (87, 91, 98, 108, 110, 121, 126, 135, 142, 149, 168, 182, 183, 188, 200, 201, 211, 217, 218, 226, 255, 257, 258, 260, 262, 282, 286).
EPA received comments arguing that there is no benefit from EPA's modification of the regulatory text to make clear that a generator who generates a solid waste must accurately determine if that waste is a hazardous waste (120, 123, 200, 257). Commenters wrote that this language would prevent conservative designations and that continuously testing to ensure accuracy rather than conservatively designating solid wastes as hazardous waste would be costly. 
EPA received comments on the costs of requiring generators to keep records that explain the knowledge basis for waste determinations (93, 166, 188, 192, 213, 228, 245). One commenter wrote that maintaining records on all the information a generator knows about a waste will provide no environmental benefit. One commenter wrote that this provision could encourage firms to use expensive testing procedures when generator knowledge would be adequate. 
EPA received general comments on the costs and benefits of various proposed requirements related to waste determinations (82, 92, 99, 101, 104, 107, 126, 131, 188, 242, 244).
EPA Response 
Since EPA's 2016 final Hazardous Waste Generator Improvements rule does not finalize the proposed requirements that SQGs and LQGs maintain records of their non-hazardous waste determinations, this document does not address comments on the estimated costs of the proposed provision. 
Since EPA's 2016 final Hazardous Waste Generator Improvements rule does not finalize the proposed requirement that SQGs and LQGs maintain records of determinations until closure, this document does not address comments on the estimated costs of the proposed provision.
In response to the comments regarding accurate waste determinations, EPA does not intend to prevent conservative designations. Even if the waste may not be hazardous, "over managing" the waste is acceptable and meets requirements because the generator has made a determination intended to ensure, beyond a doubt, proper and protective management of the waste within the RCRA regulatory program. Therefore, EPA does not expect there to be costs associated with this change.
In the final Hazardous Waste Generators Improvement rule, EPA provided examples of types of information that generators could use as acceptable knowledge in determining if their wastes are hazardous. However, current regulations require generators to keep records which explain the knowledge basis for waste determinations. Therefore, EPA does not expect there to be incremental costs associated with this change.

Comments Related to Impacts of Marking and Labeling Changes
Comment Summary
EPA received two comments related to the updated marking and labeling provisions that identified potential improvements EPA could make to the estimated costs and benefits of the rule.
One commenter wrote that the labeling requirements will be expensive because of the cost of the labeling media, printing supplies and software, the development of the new work processes, and the labor time (131). 
One commenter suggests that the qualitative benefits of the requirement that SQGs and LQGs mark and label containers with an indication of the hazardous of the contents of the containers described in the 2015 EA are inaccurate because the Department of Transportation (DOT) already regulates these products to ensure the products do not pose unreasonable risk (260).
A commenter also wrote that EPA underestimated the costs of labeling for organizations that manage many unique products (260). 
EPA Response
The 2016 RIA assumes in the baseline that generators have already invested in the labeling media, printing supplies, and software because of existing labeling requirements for generators. The 2016 RIA takes into account the hourly labor costs for programmers to update the labeling format in a computerized system for LQGs as well as the labor costs associated with the time it takes a technician to apply labels to containers for SQGs.
In response to the comment that the qualitative benefits are inaccurate because DOT already regulates consumer products, this marking and labeling provision will require generators to mark containers during hazardous waste accumulation which will enable persons who may come in contact with it to be aware of the hazardous contents of the container. These qualitative benefits described in the 2016 RIA will begin during hazardous waste accumulation rather than at the point of shipment.
In response to the commenter who wrote that EPA underestimate the costs of labeling for organization that manage many unique products, EPA assumes in the 2016 RIA that LQGs generally use a computer labeling system and that information on the hazards of the contents of the container is maintained in a database in the baseline. Generators must already label containers with hazardous waste with the words "hazardous waste" in the baseline even if they manage many unique products. Therefore, the only additional estimated burden is updating the labeling system to accommodate the enhanced label format.
Comments Related to Impacts of VSQG Consolidation
Comment Summary
EPA received five comments related to the provision allowing VSQGs to consolidate to LQGs under the control of the same person that identified potential improvements EPA could make to the estimated costs and benefits of the rule.
Two commenters pointed out that only allowing VSQGs to consolidate to LQGs under the control of the same person will prohibit franchises and small businesses from engaging in consolidation and give an unfair economic advantage to corporate retail locations over franchises, independent businesses, and small businesses (144, 232) .
One commenter pointed out that companies will not benefit from the provision because a VSQG would still have to package, label, and manifest their waste for shipment and the proposal would not avoid these costs (192). 
One commenter wrote that allowing VSQGs to consolidate to LQGs will result in cost efficiencies and economies of scale (121). The commenter provided data on the reduced disposal costs associated with packaging waste in large containers that would result from allowing consolidation.
One commenter pointed out that EPA understated the costs of proposed consolidation provision and overstated the benefits (168). The commenter argued that the Agency obscured the total costs by splitting them up and discussing them in separate portions of the analysis. The commenter argued that the conditions places on generators who take advantage of the consolidation provision diminish the regulatory relief. Additionally, the commenter disagrees with EPA's assumption that organizations will rely on an existing fleet of hazmat trucks to transport waste.
EPA Response
EPA did estimate that organizations that own VSQGs who are able to consolidate to LQGs will realize a net cost savings. EPA did not estimate the potential costs and benefits of allowing inter-organizational transfers because the final rules limits transfers to facilities under control of the same person.
In response to the comment that the proposal would not avoid the costs associated with VSQGs packaging, labeling, and manifesting their waste, the 2016 RIA does not estimate a cost associated with manifesting under this provision because VSQGs do not need to manifest their waste when shipping their hazardous waste to an LQG under the control of the same person under the final rule. From the perspective of the organizations that own these LQGs and VSQGs, EPA estimates the net impact is a cost savings after account for labeling and transportation.
EPA appreciates the data provided on reduced disposal costs associated with packaging waste in large containers. To calculate the cost savings associated with a reduction in disposal costs due to economies of scale, the 2016 RIA assumes there is a 10 percent disposal cost premium typically incurred by VSQGs relative to LQGs.
In the 2016 RIA, EPA brings together the annualized unit and aggregate cost savings associated with intra-organizational transfers from VSQGs to LQGs. From the perspective of the organizations that own these LQGs and VSQGs, the net impact is a cost savings. The 2016 RIA assumes that the transportation costs for a VSQG who takes advantage of consolidation will be similar to that in the baseline, i.e., there will be zero incremental transportation costs. The 2016 RIA estimates that the cost savings for VSQGs will outweigh the costs for LQGs and provide a net cost savings for organizations that own these VSQGs and LQGs.

Comments Related to Impacts of Revisions to Generator Regulations in 40 CFR 262
Comment Summary
EPA received four comments on the potential economic impacts of the revisions to the generator regulations in 40 CFR 262 in the proposed rule. 
Commenters argued that the provision would cause generators who fail to comply with the revised conditions for exemption to potentially have to apply for a RCRA Part B permit and be exposed to RCRA financial assurance and corrective action requirements (168, 192, 262, 263). Commenters argued that this will result in business uncertainty and increased short and long-term costs. 
EPA Response 
Although EPA did not explicitly state this in the proposed 2015 EA or the 2016 RIA, EPA assumes full compliance in the baseline and in the regulatory scenarios. 

Section 11.2 - Paperwork Reduction Act

Summary: One commenter claimed the proposed increases in recordkeeping and reporting are burdensome and argued the approach discounts the policy expressed in the Paperwork Reduction Act that the public is already overburdened by paperwork requirements and agencies should be vigilant to reduce them when possible (120). 
EPA response: EPA determined the increases in recordkeeping and reporting are necessary. They have practical utility and are essential to meet specific objectives. 

Section 11.3 - Regulatory Flexibility Act

There are no comments organized to this section of the comment outline. 

Section 11.4 - Unfunded Mandates Reform Act

There are no comments organized to this section of the comment outline. 

Section 11.5 - EO 13132: Federalism

There are no comments organized to this section of the comment outline. 

Section 11.6 - EO 13175: Consultation with Tribal Governments

There are no comments organized to this section of the comment outline. 

Section 11.7 - EO 13045: Children's Health

There are no comments organized to this section of the comment outline. 

Section 11.8 - EO 13211: Energy Supply

There are no comments organized to this section of the comment outline. 

Section 11.9 - National Technology Transfer and Advancement Act

There are no comments organized to this section of the comment outline. 

Section 11.10 - EO 12898: Environmental Justice

There are no comments organized to this section of the comment outline. 

Section 12 - Miscellaneous

Comment: Regarding part 263, consider requiring transfer to notify separately from transporters. Currently, transfer facilities are setting up operations managing large amounts of hazardous waste without the States knowing their location. Regulators can't distinguish between a transporter that never removes waste from a truck from a transfer facility that stores waste for 10-days with a greater chance of releases. (0060) 
EPA Response: EPA did not propose to change the notification requirements for transfer facilities and is not finalizing a change to these provisions. However, all states should be able to identify the location of transfer facilities within their state since they must complete and submit a Site Identification form to obtain a RCRA Identification number in order to receive hazardous wastes from generators. Similarly, states can be more stringent than EPA regarding notification if they seek additional information for programmatic reasons. 
Comment: 268.50(a)(1) should also be revised to eliminate the reference to 262.34. (0078) 
EPA Response: EPA made this conforming change in the final rule. 

Comment: Additionally, HDOH recommends incorporating clear language in part 262 describing the conditions under which generators may treat waste without a RCRA permit. Currently, the conditions under which a generator may treat are described in at least the following sections of 40 CFR: 261.5(g), 268.7(a), 270.1(c)(2) and (3). Although there are many clear EPA guidance documents available stating that generators may treat their waste under certain conditions, confusion remains. We believe this situation can be remedied or at least greatly improved by including regulations (or at least references to regulations) about generator treatment within part 262. (0082) 
EPA Response: EPA believes that in many cases, issues of generator treatment are site-specific and should be addressed on a case-by-case basis. EPA did not propose changes of this nature and is not finalizing anything in this action but may consider action in the future. Any revisions of this nature will require further analysis and until such point, EPA will continue to rely on existing guidance on this topic. 

Comment: The U.S. regulatory system involves multiple federal, state, and local regulators. This often leads to inconsistent interpretations and makes development of "best practices" for waste management treatment difficult. State regulations must be at least as stringent as related federal regulations, and local regulations at least as stringent as related federal and state regulations. For consistency, when a local or state regulation is identical to the federal, that regulation should be interpreted and enforced in an identical manner. ACS encourages consistent interpretation and enforcement of regulations at the local, state, and federal levels. (0083)
EPA Response: As the commenter alludes to, under RCRA, authorized states run the hazardous waste programs in their own states and can be more stringent than the federal regulations. EPA works with the other implementing agencies to foster consistent application of the regulations to the extent possible in this framework and will continue to do so under the generator regulations. 

Comment: I feel that there needs to be an exclusion for colleges and universities due to the various obstacles they would face in trying to meander an already incredulous regulatory maze. (0095) 
EPA Response: EPA has previously promulgated an alternative regulatory system for hazardous waste generated at academic laboratories, under part 262 subpart K of the generator regulations. Colleges and universities should check with their authorized state and see if that option is available to them in their state. EPA does not find it appropriate to promulgate an overarching exclusion for all hazardous waste generated at colleges and universities, as that could account for high amounts of waste being managed inappropriately in the university setting. 

Comment: In a few instances, EPA requested comment on options for increasing recordkeeping and/or reporting requirements. These should not be adopted without documentation of a tangible problem with the existing requirements for which the new recordkeeping and reporting is reasonably necessary. (0120)
EPA Response: Thank you for your comment. It is unclear precisely which provisions the commenter is referencing, but EPA took comment on requiring documentation for non-hazardous waste determinations, hazardous waste container inspections, and maintaining waste determination records until the facility closes, but is not taking final action on those provisions. For other recordkeeping and/or reporting requirements that the Agency is finalizing, EPA provided the rationale for why those requirements are necessary in the proposal and used existing reporting forms where possible (e.g., EPA form 8700-12).
Comment: The question is not whether any given record keeping requirement is significant when viewed in isolation, but whether the maintenance of that record or the requirement of an additional report is so important that it justifies an additional burden on a public already overburdened by government imposed recordkeeping and reporting requirements. EPA should revisit its new and expanded recordkeeping and reporting requirements to prune out those that fall into the "nice to have" category rather than the truly necessary category. (0120)
EPA Response: EPA has determined that the recordkeeping and reporting requirements in the final rulemaking are necessary in order to allow proper oversight of the RCRA program and better data related to implementation of the RCRA generator program by the states, as described in the preamble to this final rulemaking. 
Comment: Challenges with State Implementation. CT DEEP notes that portions of this proposed rule would be more stringent than the current federal generator requirements, and that, as a result, authorized states would have two years to adopt the rule once it becomes final at the federal level. CT DEEP and NEWMOA are concerned about the burden that this will place on the limited RCRA program capacity that states have to implement the rule. The staff resources available to undertake RCRA policy changes and the authorization process have been declining for many years and are at an all-time low. These staff are currently working on the authorization process for implementing important EPA RCRA rules that the Agency promulgated over the past five or more years. Implementing the proposed rule will be especially burdensome for state staff because of the need to compare and cross-walk existing state regulations against the revisions in the rule and to determine how to align the states' rules so that they reference the proper federal requirements and are at least as stringent as EPA's. In addition, there are public and legislative notifications and other policy-making processes that states must follow that are time-consuming. To provide adequate time for implementation of the proposed rule when it becomes final, CT DEEP and NEWMOA recommend that EPA allow states four to six years to apply for authorization. CT DEEP and NEWMOA also recommend that EPA allocate adequate supplemental RCRA funds to the states for authorization, just as EPA did for the corrective action rules that were promulgated many years ago. (0178, 0199) 
EPA Response: EPA understands the challenges that the states face in implementing the RCRA program. In many ways the purpose of the Generator Improvements Rule is to make many aspects of implementing the RCRA generator program less difficult, though the reorganization may cause a one-time revision of the state regulations. EPA intends to provide guidance and assistance to authorizing states, including an in-depth crosswalk of our previous regulations to the new regulations. 

Comment: 43. Page 57980, Section XII.: Utah agrees with the proposed language for the Land Disposal Restrictions. (0185)
EPA Response: EPA agrees with the commenter and is finalizing the marking and labeling language in § 268.50 to be consistent with the changes for marking and labeling containers of hazardous waste. 
Comment: A state's ability under RCRA to develop and enforce its own hazardous waste management program [Footnote 6: 42 U.S.C. 6926(b).] is limited. EPA's regulations implementing this authority states that, to obtain approval, a State program must be consistent with the Federal programs [and] [a]ny aspect of the State program which unreasonably restricts, impedes, or operates as a ban on the free movement across the State border of hazardous wastes from or to other States for treatment, storage, or disposal at facilities authorized to operate under the Federal or an approved State program shall be deemed inconsistent. [Footnote 7: 40 CFR 271.4.] (Emphasis added).

RCRA further states that States may negotiate and enter into agreements or compacts with other states about the management of solid and/or hazardous waste if the agreements or compacts are "in conflict with any law ... of the United States." [Footnote 8: 42 U.S.C. 6904.] (Emphasis added.) In short, neither RCRA nor EPA's implementing rules negate DOT's controlling authority specifically over interstate commerce. Under the HMTA, Congress granted DOT explicit preemption authority over non-federal requirements impacting the transportation of hazardous materials. [Footnote 9: 49 U.S.C. 5125.] Depending on the state requirement, DOT's preemption authority can range from absolute to the Department granting a waiver to a State for a requirement that would otherwise be preempted. [Footnote 10: Non-federal hazardous materials transportation requirements may be preempted when dual compliance with the federal requirement is not possible, the requirement is an obstacle to carrying out the federal requirement, the requirement in named subject areas is not "substantively the same as" the federal standard, state hazmat routing requirements fail to follow federal standards for establishing them, or a state imposes a fee related to transporting hazardous materials that is not "fair and used for a purpose related to transporting hazardous material." For purposes of this rulemaking, the most relevant of DOT's preemption authorities may be its absolute authority to preempt non-federal requirements that are "not substantively the same as" the federal standards for "the designation, description, and classification of hazardous material" and "the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents."] In short, it is extremely hard to envision any non-federal hazardous waste transportation requirement that would be permissible under the HMTA, especially a requirement that would interfere with interstate movement of this waste. Any non-federal requirement, even a de facto prohibition that acts to ban such transportation isolates the non-federal "jurisdiction from the risks associated with the commercial life of the nation" and would be preempted. (0188)
EPA Response: EPA disagrees with the comment that the state's ability to develop and enforce its own hazardous waste management program is limited. Authorized states run the hazardous waste programs in their own states and can be more stringent than the federal regulations. EPA works with the other implementing agencies to foster consistent application of the regulations to the extent possible in this framework and will continue to do so under the generator regulations. In this final rule, EPA is not taking action that changes how the HMTA works and is not interfering with interstate movement of waste. 

Comment: WDNR would like to EPA to consider the additional following comments:

A. Recommend using the most recent version of the "Flammable and Combustible Liquids Code" rather than the 1977 or 1981 edition so the most recent updates are included.

B. Codify a long standing policy/practice in many states that hazardous secondary material and/or hazardous waste held less than 24 hours are not considered stored and therefore the recycling facility is not required to have a hazardous waste storage license. A hazardous waste storage license would be required for facilities storing waste for longer than 24-hours and not operating under the DSW transfer based exclusion for verified recycler and speculative accumulation provisions. (0206) 
EPA Response: EPA is not taking action on either of these revisions in the final rule, although we may consider them in future actions. Although the first appears to be a technical change, EPA would have to consider any unintended consequences of making the change. As for codifying a 24-hour period before waste is considered "stored," EPA did not propose making a revision of this nature in this rulemaking and would need to do a thorough examination of the issue and take public comment before making such a change. 

Comment: Please clarify if EPA intends the 2 foot of freeboard only applies to liquid waste in a tank under 40CFR§262.16(b)(3)(ii)(C) (0206)
EPA Response: This language is reorganized verbatim from the existing requirements for SQGs managing waste in tanks and EPA is not making any changes with regard to this existing tank requirement.

Comment: Explicitly state that the management of D001 liquids (and for other wastes listed due to ignitability) for SQGs and LQGs need to be bonded and grounded. Bonding and grounding of D001 liquids greatly minimizes the chances of a static discharge igniting the D001 liquid. (0206)
EPA Response: Thank you for your comment. EPA did not propose revisions specifically for the management standards for D001 liquids and is not taking final action on this question in this rulemaking. 

Comment: Define the "Generator Treatment Exclusion". There is an obscure generator treatment reference at 40CFR§268.7(a)(5) and there is a discussion of generator treatment in the Federal Register preamble. (0206)
EPA Response: EPA believes that in many cases, issues of generator treatment are site-specific and should be addressed on a case-by-case basis. EPA did not propose to define a generator treatment exclusion and is therefore, not finalizing anything in this final rule but may consider action in the future. Any revisions of this nature will require further analysis and until such point, EPA will continue to rely on existing guidance on this topic. 
Comment: Define "Operating Day". The term operating day is not codified and EPA has changed the meaning over time. (206)
EPA Response: Thank you for your comment. EPA did not propose to define operating day in the proposal and therefore, cannot take any action on this comment in this rulemaking. 
Comment: Define "Evaporation of Wastewaters Containing Metals" is not thermal treatment. Wisconsin does not view the evaporation of wastewaters (provided the wastewaters do not contain volatile organics) from a tank system as thermal treatment needing a hazardous waste license. Wisconsin understands that the intent of thermal treatment is for thermal destruction or incineration and not the evaporation of only water vapor from wastewaters containing metals. Note that many evaporators  -  also know a zero discharge units  -  used by metal finishers are usually regulated as Wastewater Treatment Units (WWTU) under 40CFR§270.1(C)(2)v. As such, these units are regulated under the Clean Water Act (CWA). (206)
EPA Response: Thank you for your comment. EPA did not propose to define evaporation of wastewaters containing metals to be thermal treatment in the proposal and therefore, cannot take any action on this comment in this rulemaking. 
Comment: As detailed in USWAG's comments, electric and gas utilities are unique from other types of generators due to the fact that they maintain expansive rights-of-way across their transmission and distribution lines on which wastes are generated by utility operations and/or discovered by personnel or the public. AGA members are no exception. AGA members currently operate 2.1 million miles of natural gas pipelines across all fifty states. Although natural gas utilities have endeavored to reduce the generation of hazardous waste, waste that is ultimately determined to be hazardous can be produced anywhere along these pipelines, even in remote and unstaffed locations. Natural gas utilities are increasingly conducting pipeline inspection and integrity testing activities in response to new pipeline safety regulatory requirements promulgated by the Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) that can potentially produce hazardous waste. See e.g., 68 Fed. Reg. 69778 (Dec. 15, 2003) Pipeline Safety: Pipeline Integrity Management in High Consequence Areas (Gas Transmission Pipelines). For example, prior to using sophisticated inline inspection tools to measure and record pipeline attributes, the pipeline must be cleaned to remove contaminants that could damage the inline inspection tools. Although the waste generated from this cleaning is generally not hazardous, in some instances testing determines the waste to be hazardous. There are similar concerns with the potential to generate hazardous waste when natural gas utilities undertake hydrostatic pressure testing to assess the integrity of a pipeline. It is important to ensure that EPA's hazardous waste requirements do not unnecessarily delay or impede this important pipeline safety work. (213)
EPA Response: We recognize that utilities have some unique considerations related to pipeline management and as discussed in the preamble and Section 3.3 of this Response to Comment document, EPA has finalized the VSQG consolidation provisions, which utilities commented on favorably. EPA does not believe its hazardous waste generator requirements unnecessarily delay or impede pipeline safety work. 

Comment: Recognizing the difficulty in managing the waste generated by utilities, many states have developed creative measures to address this waste. As noted by USWAG, states have adopted a variety of approaches to allow utilities to manage these materials, including authorizing the use of transfer facilities, allowing for hazardous waste determinations to be made at consolidation facilities, and/or agreeing to allow utilities to consolidate at the nearest manned facility or establish other best management practices. AGA strongly encourages EPA to recognize the successful state efforts to address these issues and modify the Proposed Rule accordingly. (213)
EPA Response: As noted in Section 3.3 of this Response to Comment document, EPA recognizes that states have developed their own programs related to consolidation facilities and it is not EPA's intention to interfere with existing state consolidation programs. If a state has authorized a facility to manage hazardous waste or has permitted, licensed, or registered a facility to manage municipal solid waste or non-municipal, non-hazardous waste, EPA would consider that to be a facility allowed to receive VSQG waste under § 262.14(a)(5). 
Comment: Further, we would request EPA to consider making a uniform waste profile to be used by off-site TSDFs. This would reduce confusion and could be used to provide uniform information, notices and certifications under both 262.11 and 268.7. (214)


EPA Response: The Agency has insufficient information at this time to determine the feasibility and effectiveness of requiring a uniform waste profile for use by TSDFs. In order to evaluate the potential for uniform waste profiles, EPA would need to discuss this idea with many of our stakeholders, including TSDFs and authorized states, which is beyond the scope of this rulemaking. 
Comment: General comments on codification of guidance- p. 57919
Regarding the scope of this proposal, the department supports clarity and codification of key federal guidance. This makes the rules easier and faster for generators to interpret and use to prevent violations. It also supports states that have provisions in their laws preventing them from being different than federal regulations or prohibiting the use of supporting guidance in making decisions. (223)
EPA Response: EPA appreciates the support for codifying key guidance concepts related to the generator program and has finalized many of these in the final rule. 
Comment: Tank system guidance should be incorporated into the regulations

Currently, generators have to demonstrate that the contents of a waste accumulation tank are removed within 90 days. There is guidance available as to allow to tell when the tank is considered "empty" and therefore the material is removed. However, this guidance should be included in the regulations, consistent with EPA's approach to this rulemaking, specifically the guidance in RCRA Online 14763 states:

A tank will be considered empty when its contents have been drained to the greatest extent possible. Since many tank designs do not allow for complete tank draining due to flanges, screens or siphons, it is not expected that 100% of the wastes will always be removed. As general guidance, a tank should be considered empty if the generator has left the tank's draining system open until a steady, continuous flow has ceased. (224)
EPA Response: In the preamble and regulatory text provisions associated with tank marking and labeling, EPA elaborated on how SQGs and LQGs can demonstrate when the contents of its waste accumulation tank have been emptied every 180 and 90 days, respectively. The Agency, however, did not address or modify existing tank guidance associated with when a tank's contents have been drained to the greatest extent possible. 
Comment: To avoid inconsistencies in the regulations overseeing the activities of hazardous waste generators and shippers, EPA should coordinate with the Pipeline and Hazardous Materials Safety Administration (PHMSA) when considering changes to regulations. 
On July 5, 2012, PHMSA issued an Advanced Notice of Proposed Rulemaking on Reverse Logistics. Subsequently, on August 11, 2014, PHMSA issued a Notice of Proposed Rulemaking on Hazardous Materials on Reverse Logistics. ATA is concerned about the potential for substantial overlap in the implementation and enforcement of EPA's hazardous waste generator regulations and PHMSA's hazardous materials regulations. To avoid duplication of efforts and inconsistencies in the regulations of generators and shippers, ATA requests that EPA consult and coordinate with PHMSA to the extent that EPA considers changes to its hazardous generator regulations. (D289)
EPA Response: EPA has coordinated extensively with DOT/PHMSA since the September 2014 proposed rule (HM-253) to ensure that PHMSA's final rule aligns with EPA's RCRA regulations and future EPA rulemakings regarding RCRA, which include this final Generator Improvements rule. 

Comment: There are enough current issues with commercial TSDFs and LDR. Virginia Tech believes it would be beneficial for EPA to standardize the LDR forms and provide standard interpretation on the requirements. (0284)
EPA Response: EPA did not propose standard land disposal restrictions (LDR) forms as part of this rulemaking and so cannot take action on that idea in this final rule. 
Comment: At FR Vol. 80, No. 186 (58002), the newly proposed 40 CFR §262.18 states, "(a) A generator must not treat, store, dispose of, transport, or offer for transportation, hazardous waste without having received an EPA identification number from the Administrator ... (c) A generator must not offer its hazardous waste to transporters or to treatment, storage, or disposal facilities that have not received an EPA identification number." There are some generators outside the U.S. (e.g., Canada) that currently do not have an EPA ID number. How does EPA intend to communicate to those generators outside the U.S. about obtaining an EPA ID number before they continue to transport material to the U.S. or accept material from U.S. facilities? (0286)
EPA Response: EPA did not change the RCRA regulations related to importing hazardous waste, including the requirement that generators have an EPA ID number. Companies that transport hazardous waste into or out of the U.S. should contact the appropriate state regulatory agency for assistance. 
Comment: The LGAC recommends that the EPA provide outreach materials to local governments, citizens and businesses to help them better understand the rule and how to protect their community and prevent contamination.

Recommendation: The LGAC realizes that coordination at all levels of government at the state, local and tribal governments are important, especially in implementation of the final rule. Therefore, the LGAC recommends that intergovernmental feedback on implementation should be closely monitored. (LGAC, 0289)
EPA Response: EPA intends to coordinate with state and local governments on implementation of this final rule, including developing technical assistance materials. Once the rule is published, EPA will work closely with the states in conducting outreach, training, and technical support activities to facilitate efficient and effective implementation of the rule by generators.

Section 12.1 - Subpart K

Comment: Several commenters stated that subpart K will not help their non-laboratory operations and many of these commenters believe that opting into subpart K will actually increase their burden because it will require them to operate under more than one set of RCRA regulations (Commenter Nos. 83, 100, 102, 105, 110, 111, 114, 115, 119, 130, 135, 136, 139, 141, 142, 143, 155, 162, 166, 169, 175, 176, 183, 184, 186, 187, 190, 198, 202, 203, 209, 210, 211, 212, 221, 228, 231, 238, 244, 249, 256, 258, 280, and 285).
Response: These comments are outside the scope of the narrow and specific change that we proposed to subpart K. Although we are not legally obligated to respond to comments outside the scope of the proposal, in this case we are choosing to respond to certain comments in order for EPA to better explain the existing subpart K regulations and some common misunderstandings about them. 
Commenters argue that opting into subpart K obligates the institution to operate under more than one set of RCRA regulations at the same institution. However, EPA maintains that academic institutions most likely have been operating under more than one set of RCRA regulations for some time, including used oil regulations for the maintenance of their motor vehicle fleets, and universal waste for their fluorescent bulbs. Furthermore, EPA's engagement with academia over the past 25 years has always been limited to the management of hazardous waste from laboratories. This includes the Laboratories eXcellence and Leadership program (XL Project), as well as the pilot project led by the Howard Hughes Medical Institute (HHMI) to develop and implement a performance-based approach to the management of laboratory waste at ten colleges and universities. These efforts regarding hazardous waste were targeted at laboratories because of the way in which hazardous wastes are generated in laboratories: there are a large number of waste streams that vary over time and the wastes are often generated by students, who lack the training and accountability of a professional workforce. For that reason, at no point in developing subpart K did EPA ever indicate it was considering one set of hazardous waste regulations only to the exclusion of any other applicable RCRA regulations .

Comment: Several commenters expressed concern specifically that many colleges and universities cannot opt into subpart K because their state has not adopted the rule (Commenter Nos. 83, 100, 102, 105, 110, 111, 114, 115, 119, 130, 135, 136, 139, 141, 142, 143, 155, 162, 166, 169, 175, 176, 183, 184, 186, 187, 190, 198, 202, 203, 209, 210, 211, 212, 221, 226, 228, 238, 244, 249, 256, 258, 280, and 285).


Response: Since subpart K was finalized in 2008, EPA has made an effort to track which states have adopted the rule. At this point, subpart K is effective in approximately 22 states. Additional states have told EPA they are in the process of adoption. Some of the states that have not adopted subpart K have told EPA it is because the colleges and universities in their state have not expressed an interest in opting into the rule, so they didn't see the need to go through the process of adopting and becoming authorized for this regulation. Few, if any, states have expressed an outright opposition to adopting subpart K. EPA strongly encourages the states that have not adopted subpart K to do so; however, we do not have the authority to mandate or compel them to adopt this rule, as it was not deemed more stringent than the standard generator regulations.

Comment: Some commenters have expressed concern regarding subpart K and recommended several changes to subpart K, such as: (1) require all states to adopt subpart K, (2) confirmation that treatment of unwanted material in a laboratory without a permit under subpart K is allowed, (3) elimination of other overly restrictive requirements of subpart K, (4) elimination of the land disposal restriction notification requirement for laboratories, (5) legislation, rulemaking, and guidance allow qualified laboratory personnel to treat small quantities of hazardous waste without a permit, and (6) participate in a dialogue about Subpart K before any final action (Commenter No. 83, 95, 110, 136, 162, 166, 183, 226, 228, 231, 258, and 282).
Response: These comments are outside the scope of the narrow and specific change that we proposed to subpart K. Therefore, these recommended changes cannot be finalized in this rulemaking. Furthermore, EPA spent considerable time and resources addressing the needs of the academic community when it developed subpart K. EPA believes that before we enter into additional dialogue on this regulation, more states need to adopt it and more colleges and universities need to opt into it so that data on the rule and its effects are available. EPA does not have the authority to mandate or compel states to adopt this rule, as it was not deemed more stringent than the standard generator regulations. EPA recommends that states adopt subpart K, if they have not done so already.
Comment: One commenter recommend that significant participation by those involved in campus hazardous waste determinations be incorporated into finalizing this rule. Most academic labs generate relatively small amounts of hazardous wastes and should not be subject to rules which are designed for large volume generators (Commenter No. 153).
Response: EPA agrees with the commenter that traditional RCRA regulations are not a good fit for colleges and universities due to the industrial focus of the regulations. However, this concern has already been addressed with the promulgation of subpart K in 2008 which created sector-specific regulations for academic laboratories. 
Comment: One commenter suggested that some relief be granted to Universities either by a change to 40 CFR 262 subpart K or by permitting Universities to submit their procedures for EPA approval as an alternative method of compliance (Commenter No. 252).
Response: EPA thanks the commenter for their recommendation but the proposed change to subpart K was limited to only extending the accumulation time from 6 month to 12 months. Any other change to subpart K falls beyond the scope of this rule. 




Section 12.2 - Retail
 
Comment: In light of the significance of these proposals for the retail industry, we are committed to providing useful comments and information in response. However, the sixty days currently allotted for responding to the proposals is not a sufficient amount of time for us to do so, given that the proposals would overhaul dozens or even hundreds of elements of the existing rules for hazardous waste generators and for management of hazardous waste pharmaceuticals. Our task is complicated by the sheer number and diversity of our retail members (and our reverse distribution partners), who may be affected in very different ways by the proposals. Moreover, the timing of the comment periods pose a particular challenge for the retail sector, because they coincide with the lead-up to the holiday season (e.g., "Black Friday"), which is by far the busiest period of activity for retailers. Holiday activities demand full engagement from most of the retail community, from mid-October through the end of the calendar year.

In order to ensure that we have an adequate opportunity to provide useful comments and information on the two proposals, with the intervening holiday period, we respectfully request that EPA grant an extension of the comment periods until the end of January 2016. (0058)
Response: EPA has already responded to requests for an extension of time for comments, and provided an additional 30 days to the public comment period, thereby extending it to December 24, 2015. Please see the comment period extension in the docket folder (EPA-HQ-RCRA-2012-0121-0067). EPA believed that extending the public comment period beyond the additional 30 days was not necessary. 


Comment: Costco appreciates EPA's recognition that the hazardous waste regulations, drafted with industrial manufacturing operations in mind, are a poor fit for retail businesses, and that EPA is making an effort to craft a regulatory system that is practical while still protecting human health and the environment. Unfortunately, the proposed rule changes generally fall short of the mark, and in many respects would actually increase the burden on retailers, with no corresponding environmental or health benefit. (0124)
Response: The Agency disagrees with this comment in light of the changes it has made in response to comments. Any increases in burden should be minimal to each retail store. 
Comment: There is a clear delineation between waste generated through retail operations and waste generated by households. 
Costco's return policy allows its members to return unwanted product to any Costco warehouse.
Costco in turn, separates and manages "...waste from the municipal solid waste stream... minimizing the input of hazardous constituents to their landfills and combustors." (0124)
Response: A major goal of RCRA is to conserve resources. Separating out wastes from potential product that can be used/reused is one method of accomplishing this goal.
Comment: EPA should therefore amend 40 CFR 261.4 to include an exemption from the definition of solid waste for consumer products that are non-leaking and whose packaging has structural integrity, similar to the exemptions in 261.4(c). (0124)
Response: RCRA does not regulate products. Therefore, a specific exemption is unnecessary.
Comment: Even if a material is indeed a solid waste, and does not qualify for a solid waste exemption, the regulations provide a possibility for exclusion. The solid waste is excluded from being considered a "hazardous waste" when it falls under any of the exemptions listed in the next subsection of the Code, and are therefore "...exempt by definition from the Federal hazardous waste regulations promulgated under Subtitle C of RCRA."

We recognize the EPA may not be inclined to make the distinction between household hazardous waste generated by our customers and waste generated in our own operations. If that is the case, EPA should, at a minimum, allow consumer products that are in packaging with structural integrity and are not leaking to be managed as products until such time as a decision is actually made to discard them. These consumer products pose no greater risk when stored or transported than do "virgin" products when they are transported to retail stores or warehouses from the vendors. (0124)
Response: Again, EPA does not regulate consumer products. However, it does regulate discarded products that are hazardous wastes. It is the responsibility of retail stores to differentiate between these two situations and if discarded, make an accurate hazardous waste determination. 
Comment: Allow consumer goods in the retail sector to be listed as Universal Wastes, which would address the major issues that have been raised when dealing with episodic generation events, hazardous waste determinations and reverse distribution.
3. If eligible, allow retailers to manage pharmaceutical waste to the Washington State Department of Ecology Interim Enforcement Policy of Pharmaceutical Waste in Healthcare for the waste they generate in retail operations. 
4. Allow retailers to support HHW management programs as it can best be implemented in retail operations and budget. This supports a more sustainable society, reduces the amounts of waste generated and lowers the toxicity and persistence of waste generated. 
5. Allow retailers to separate waste generated in their operations from waste generated through HHW consumer returns. (0124)
Response: This rule addresses all industrial sectors, not just the retail sector. Therefore, determining if consumer goods should fall under the Universal waste program is beyond the scope of this rule, as is the next comment about pharmaceutical hazardous wastes. Regarding the comment about EPA allowing retailers to support HHW collection and management programs, the Agency has no policy prohibiting retailers to support HHW programs. These programs are at the local level. Regarding the comment about allowing retailers to separate waste generated in their operations from waste generated through HHW consumer returns, there is no prohibition by EPA against doing that as well. 
Comment: However, EPA's proposed rule on hazardous waste generator requirements does not adequately address the unique challenges that RCRA poses to the retail sector. The Agency has recognized these retailer-specific challenges, for example in the Notice of Data Availability ("NODA") that EPA issued in 2014 on the applicability of RCRA to the retail industry. See 79 Fed. Reg. 8926 (February 14, 2014). EPA has also indicated that the current proposal is a key part of its efforts to address these issues. See, e.g., 80 Fed. Reg. at 57,919. Unfortunately, while a few portions of the proposed rule would offer a small measure of regulatory relief to a small number of retailers, other portions of the proposal would actually increase significantly the regulatory burdens on virtually the entire retail industry. The net effect would be to exacerbate the problems that the RCRA program poses to retailers.

EPA may not lawfully move forward with its proposal to amend the rules for hazardous waste generators, unless and until it addresses the special situation of the retail industry. Although retailers account for less than 0.1% of the hazardous wastes generated, they represent the single largest group of hazardous waste generators covered by the proposal  -  quite possibly more than half. Nevertheless, the proposal is clearly focused on other generators (e.g., manufacturers) whose operations and wastes are materially different, giving short shrift to the unique issues faced by the retail industry. A rule that fails to address the special issues of the biggest segment of the regulated community cannot be sustained. (0168)


Response: The Agency disagrees with the above comments. This rule is not a retail sector rule but a hazardous waste generator rule encompassing every sector that generates hazardous waste. While they may represent the single largest group of hazardous waste large quantity generators (LQGs), there are thousands upon thousands of other generators not associated with the retail sector who are either small or conditionally exempt small quantity generators. To say that this rule is unlawful is incorrect. 
Yes, retailers are unique, but if retail stores generate a hazardous wastes, they must comply with the applicable regulations just like every other sector. 
Comment: 6. Conclusion

For the reasons discussed above, the Retail Associations urge EPA to reconsider many aspects of the proposed rule, taking into account the unique issues that the proposal raises for the largest group of affected entities, namely the retail sector. While we believe some portions of the proposed rule are unlawful or otherwise inappropriate, and therefore cannot and/or should not be finalized, other portions, with modest adjustments, can be a significant move forward in EPA's stated goal of improving the hazardous waste generator regulations under RCRA.

Once again, we appreciate this opportunity to provide our comments on this proposed rulemaking. We would welcome the opportunity to provide additional input and/or to answer any questions the Agency may have with respect to the points made above. (0168)
Response: The Agency disagrees with the above conclusions. The rule is neither unlawful nor otherwise inappropriate.
Comment: 4. The Legal Requirement for EPA to Ensure that Any Final Rule Reflects the Unique Issues of Retailers, Who Represent a Significant Portion of Hazardous Waste Generators

It is a fundamental principle of administrative law that an agency cannot finalize a rule of general applicability if it fails to address the unique challenges the rule would pose to a significant portion of the regulated community that the agency is aware of or that has been brought to the agency's attention. See, e.g., Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29, 43 (1983) ("an agency rule would be arbitrary and capricious if the agency has ... entirely failed to consider an important aspect of the problem [or] offered an explanation for its decision that runs counter to the evidence before the agency"). In the present case, the retail sector is not only a significant portion of the regulated community, but the single largest group of regulated entities  -  quite possibly the majority (although the quantity of wastes that they generate is almost negligible in comparison to the quantity generated by others). Moreover, retailers are materially different from the generators that EPA focused on in developing its proposal (e.g., the manufacturing industry), such that significant portions of the proposal are inappropriate for retailers. As a result, EPA is legally obligated to perform a top-to-bottom review of the proposal, to ensure that any final rule adequately addresses the issues of the retail sector.
Response: Again, the above discussion is disingenuous. The retail sector may be the single largest sector for LQGs, but it is still a relatively small percentage of the overall LQG hazardous waste generator universe, and when SQGs and CESQGs are included, a very small percentage of all hazardous waste generators. 
4.1 Retailers Are the Largest Group of Regulated Hazardous Waste Generators, and May Well Represent the Majority

In order to estimate the percentage of regulated hazardous waste generators that are in the retail industry, we utilized the Biennial Report ("BR") database available on EPA's website at http://www2.epa.gov/enviro/br-search. We first searched the data for the latest reporting year (2013) to identify all the generators with North American Industry Classification System ("NAICS") codes corresponding to the retail industry (i.e., codes starting with 44 or 45, although we excluded a few codes for sectors that seemed unlikely to generate significant quantities of hazardous wastes). We also narrowed the field to those generators identified as LQGs, since only LQGs are required to submit biennial reports, making information about other generator categories unreliable. Based on this methodology, we found that a total of 5159 retail facilities reported as being LQGs in 2013.

To determine the total number of LQGs in all industries, we had to use a different methodology. First, we noted that the total number of LQGs reported in the National Biennial RCRA Hazardous Waste Reports has been almost constant for many years. The figures since 2003 are as follows: 15,584 (for 2003), 14,984 (for 2005), 14,549 (for 2007), 14,710 (for 2009), and 14,262 (for 2011). See http://www3.epa.gov/epawaste/inforesources/data/biennialreport/ (providing links to the national reports). If we were to use a figure in this range (say, the 2011 total of 14,262) as the total LQG population in 2013, retailers might represent 36% of all LQGs (because 5159/14,262 = 0.36).

However, our understanding is that there was a significant increase in the LQG population in 2013, as retailers became much more aware that they might be subject to RCRA regulation (primarily due to a series of major hazardous waste enforcement actions against retailers in California, as well as a 2010 EPA letter asserting that nicotine patches, gums, and lozenges qualify as acutely hazardous wastes under RCRA). To improve the estimate of the 2013 total of LQGs, we first determined the total number of retail facilities that reported as LQGs in 2011, using the same methodology as described above for 2013. That figure was 1037. We subtracted this number from the total number of reported LQGs for 2011, to arrive at the number of non-retail LQGs in 2011 (i.e., 14,262  -  1037 = 13,225). It seems reasonable to assume that this number of non-retail LQGs remained essentially the same in 2013, given that the total LQG count has been constant for so long, and we are not aware of any reason that the number of non-retail generators would have significantly changed in 2013. Thus, we could add this figure to the number of retail LQGs developed above (5159), to get a total 2013 LQG population of 18,384 (13,225 + 5159). Based on this figure, retailers would have represented 28% of all LQGs (because 5159/18,384 = 0.28).

In sum, based on our analysis, retailers represented approximately 28% of all hazardous waste generators who reported as LQGs in 2013. As substantial as this percentage is, it almost certainly understates to a substantial degree the proportion of regulated hazardous waste generators that are in the retail sector. As an initial matter, some members of the Retail Associations have indicated that they operate all of their stores as LQGs, due to uncertainties about if/when they might exceed the LQG limits, but only report as LQGs for those stores that ultimately actually exceed the LQG limits. This factor alone could increase the number of LQG retail facilities by several thousand. Moreover, the awareness of RCRA requirements in the retail industry has increased significantly in the last two years, so it can be expected that in the upcoming biennial reporting cycle for 2015, the number of retail facilities reporting as LQGs will jump, with a concomitant increase in the percentage of LQGs that are in the retail industry.

For purposes of comparing the number of LQGs in retail versus other individual industries, we reviewed the data in EPA's Economic Assessment on the number of LQGs in each industry (based on the 2011 biennial reports). See Economic Assessment, Exhibit 2-6. The largest number of LQGs in any individual industry (based on a 3-digit NAICS code) was 2197 for the chemical manufacturing industry (NAICS code 325)  -  which is less than half the number of retail LQG facilities, as discussed above (i.e., 5159). Indeed, even when we combined the figures for the entire manufacturing sector (NAICS codes 31-33)  -  which covers manufacturers of such disparate products as aircraft, food, chemicals, furniture, clothing, steel, computers, and paper  -  the total was only modestly higher than the number for retail (i.e., 8257).

Clearly, even with very conservative assumptions, retailers represent the single largest group of regulated hazardous waste generators. If we are correct that the actual number of LQG retail facilities is much higher than estimated above, it seems possible  -  even likely  -  that retailers represent over half of all LQGs, and by extension probably over half of the entire regulated generator universe.
Response: The Agency disagrees completely with the above analysis since it skews the discussion away from the complete picture of all hazardous waste generators. If we understand the above discussion, 28 percent of all LQGs are from the retail sector leaving 72 percent, or almost three quarters of the universe of LQGs outside of the retail sector. When SQGs and CESQGs are factored into the equation, its quite possible that the percentage of retail establishments could be as little as 2.8 percent of the total universe. 

4.2 Retailers Account for a Negligible Percentage of the Hazardous Wastes Being Generated in the Country

Although, as discussed above, retailers collectively represent the largest group of hazardous waste generators (perhaps the majority), that does not translate into a large proportion of the quantity of hazardous wastes being generated. On the contrary, retailers represent only a negligible percentage of the total amount of hazardous wastes generated in the U.S.

In order to determine the amount of hazardous wastes generated by retailers, we started with data in EPA's Economic Assessment on the amount of hazardous wastes generated by LQGs in various sectors of the economy (based on 2011 biennial reports). See Economic Assessment, Exhibit 2-6. We added the hazardous waste generation amounts for all of the retail sectors (i.e., all sectors with NAICS codes starting with 44 or 45) to arrive at a total figure of 2864 tons. For all industries, the total LQG generation was 34,522,000 tons. Thus, the retail LQGs accounted for only 0.008% of the total (since 2864/34,522,000 = 0.00008).

This percentage may be low, because, as noted above, the 2011 biennial reporting data significantly understated the number of retail LQGs. To adjust the numbers, we first determined the average hazardous waste generation rate at each LQG retailer facility, based on the 2011 data. As noted above, there were 1037 retail facilities that reported as LQGs in 2011. Since the total amount of hazardous wastes that they generated was 2864 tons, the average generation rate was 2.76 tons (i.e., 2864/1037 = 2.76). Multiplying this amount by the number of retail LQGs estimated above for 2013 (i.e., 5159), the total amount of hazardous wastes generated by these facilities was 14,239 tons. This represents approximately 0.04% of the total (since 14,239/34,522,000 = 0.0004). While the actual number of retail LQGs, and thus the amount of hazardous wastes from such facilities, may be significantly higher (as discussed above), it seems almost certain that retailers collectively account for less than 1/10th of one percent (i.e., <0.1%) of all the hazardous wastes generated by the LQG universe.

One additional point is worth mentioning about these data. As noted above, the average hazardous waste generation rate for an LQG retailer can be estimated at 2.76 tons per year. This equates to 2760 kg/year, or 230 kg/month. However, the threshold for an LQG is 1000 kg/month for non-acutely hazardous wastes. This suggests that in the vast majority of cases, retailers that qualify as LQGs are not, in fact, exceeding the LQG limit for non-acutely hazardous wastes on a regular basis. Rather, they must either be exceeding that limit on an "episodic" basis only, or be exceeding the 1 kg/month limit for acutely hazardous wastes (primarily from low-concentration nicotine products).
Response: The Agency understands the dilemma the retail sector faces with acute hazardous wastes, particularly from pharmaceutical hazardous wastes and nicotine, and a separate effort is underway to address this issue. However, as with any other generator, they must comply with the existing RCRA regulations until such time as a change in the regulations occurs. 

4.3 The Hazardous Waste Generator Rules Present Unique Challenges to Retailers

The RCRA hazardous waste regulations, including both the existing regulations and EPA's current proposal, are not well suited for  -  and pose unique challenges to  -  the retail sector, because they were designed with a completely different type of generator in mind, namely manufacturing facilities. Retail facilities are fundamentally different from manufacturing facilities, in ways that render the RCRA rules wholly inappropriate for the retail sector. Among the key differences are the following:

o Extremely large number and variety of wastes. Retail facilities typically generate vastly more types of wastes than facilities in other industries, even though the total quantities are almost negligible in comparison. EPA has estimated that LQGs on average generate only 9 to 30 individual waste streams at a time (split roughly evenly between hazardous and non-hazardous waste streams), only 1 to 4 of which change each year. See Economic Assessment at 3-9 (also estimating lower numbers for SQGs). However, as discussed in Section 5.1.4 below, since minute amounts of each individual product marketed by a retailer may become a waste, retail generators can generally be expected to generate 10,000 to 25,000 discrete waste streams, with thousands of these streams changing each year. The dramatically higher number of waste streams complicates tremendously the classification and management of retail wastes at individual stores.

o Limited knowledge of waste composition and characteristics. Retailers buy, distribute, and sell products. Unlike manufacturers, they do not have specialized knowledge of those products' ingredients or properties that would enable them to make accurate hazardous waste determinations. Indeed, in many instances, information about the composition of products is proprietary to the manufacturer, so that retailers do not have and cannot obtain access to such information. As a result, the retailers have no choice but to base their waste determinations on information provided by the manufacturers (or third parties who are able to get information about the products from the manufacturers under strict confidentiality agreements). Retailers cannot and should not be held to the same waste determination standards as manufacturers, who can be expected to have detailed knowledge of their raw materials, processes, products, and wastes.

o Similarity of wastes to consumer products stocked on shelves, sold to customers, and used/discarded by households. Manufacturing wastes (e.g., sludges and by-products) are commonly in a form that is not readily recognizable or understandable to the public, employees in the manufacturing sites, third parties involved in management of the wastes (e.g., transporters and offsite TSDFs), or government inspectors. In contrast, most retail wastes are simply discarded forms of the same consumer products that the retailers place on their shelves and sell to customers, and that the customers take home, use, and ultimately discard when they are no longer useful. Because the retail wastes are so familiar, there is not the same need for markings, warnings, and employee training as is required for manufacturing wastes. Moreover, reduced management requirements may be warranted for retail wastes, since the exact same wastes end up in far larger quantities in the household waste stream that is excluded from RCRA regulation. See 40 C.F.R. § 261.4(b)(1).

o Extremely large number of facilities. While the largest manufacturers might have a handful of discrete facility locations, even mid-sized or regional retailers have hundreds of store locations, and the largest retailers have several thousand stores, not to mention distribution facilities. The sheer number of these operations pose a major management challenge, not only for the retailers, but also for regulatory authorities seeking to oversee the operations. Moreover, the costs of compliance are increased by orders of magnitude for retailers, turning what might be an insignificant issue for manufacturers into a crushing burden on retailers. It is also worth noting that if a regulator has an issue with any aspect of the compliance system for a retailer, the potential penalties may be multiplied across all the retailer's stores. In this way, retailers may be at risk for much higher fines than manufacturers, even though the rules were designed for manufacturers rather than retailers.

o Geographical diversity. Even the largest manufacturers generally have facilities in only a few discrete locations in a small number of states. The largest retailers, however, generally operate throughout all 50 states. The spread-out nature of retail operations poses a significant logistics and management challenge that manufacturers do not have to contend with. Moreover, because it is not practical for a retailer to establish a separate compliance system for each state, retail companies are often forced to establish a nationwide compliance system based on the most stringent rules and interpretations in all of the states.

o Complexity in determining when wastes are generated. The point at which a waste is generated is usually pretty straightforward to identify in a manufacturing process, for example when used solvents are no longer usable, when by-products are removed from a chemical reactor, when air or water pollution control residuals collect, or when rejects are removed from a manufacturing line. In contrast, it can be far more complicated for a retailer to determine if/when an individual unsold or returned product is a waste. The vast majority of unsold or returned consumer products are not, in fact, wastes because they may be suitable for re-shelving, liquidation sale through a secondary market, donation to individuals or non-profit organizations, repair or refurbishment, or shipment to a manufacturer or its agent for credit. While a small fraction of the items may have to be discarded, the customer service representatives receiving returned goods and the stock clerks removing unsold products from store shelves often will not have the information, knowledge, skills, and/or tools necessary to determine which items are wastes, much less hazardous wastes. Moreover, requiring such determinations to be made at the store level may encourage retailers to over-classify products as solid or hazardous wastes, which would be environmentally counterproductive inasmuch as it would cause potentially useful or recyclable products to be discarded.

o Different pattern of waste generation. Manufacturers typically generate wastes at a reasonably steady and predictable rate from a well-defined production process that they have control over, with occasional episodic events (e.g., process upsets). Wastes are generated in the retail setting much more unpredictably and often in a way that is not in a retailer's control, such as when individual retail items are returned by customers, are dented or otherwise damaged when they fall off a shelf, etc. As discussed in Section 5.5.1 below, the natural variability in the waste generation rates of retailers means that rules designed to address "episodic events" in manufacturing industries would be of little benefit to retail generators whose waste generation rates occasionally "bump" them into higher generator categories.

o High employee turnover. Compared to manufacturing jobs, most retail jobs require only limited skills, making them attractive to new entrants into the labor market, persons needing temporary jobs, and others requiring flexibility. These factors, together with the seasonal hiring needs of most retailers, lead to much higher levels of employee turnover than in other industries. As a result, training programs designed for manufacturing employees are often not practical for retail employees. In addition, waste management requirements assuming a high degree of knowledge among all employees simply do not work for employees in a retail store.

o Integration into the community. While manufacturing facilities are commonly located in areas separated from population centers (e.g., residential areas), retail facilities are necessarily integrated into the community, since that's where the retail customers are. In urban settings, especially, retailers must coexist in close quarters with other business enterprises and households. The close proximity (and generally small footprint of retail facilities) makes some of the rules that were developed with manufacturing facilities in mind (e.g., the 50-foot buffer zone requirement for ignitable or reactive wastes) impractical for retailers.

When it finalizes the current proposal, EPA must consider these differences between retail and manufacturing generators. Each aspect of the proposal should be viewed through the lens of the retail sector to make sure it is appropriate for retail generators of hazardous wastes. As discussed in detail below, we believe that many aspects of the proposal, when viewed in this manner, come up short. (0168)
Response: The Agency understands the unique characteristics of the retail sector. However, when all is said and done, has the retailer determined that their discarded product is a solid and hazardous waste? That is ultimately the question that has to be asked and answered. 
Comment: While proud of our RCRA compliance program, Walmart believes that much of the efforts are largely unnecessary to protect human health and the environment since the wastes generated are common household consumer products, many of which are specifically designed and regulated for safe human consumption and bodily use. [Footnote 5: Walmart stores received over 2,000 environmental inspections last year from various government entities, over 400 of which were directly related to hazardous waste management. None of the inspections resulted in an NOV or fine.] By their very nature common consumer products as purchased from a retail store do not pose significant risks to human health or the environment because they are designed and regulated by other agencies to be safe for consumers. Naturally, consumers do not want to buy products that present a serious danger to themselves and their families. Therefore, Walmart goes to extraordinary lengths to try to comply with RCRA, not because of a need to protect its customers and employees from dangerous hazardous wastes, but because RCRA's complicated regulatory scheme was not designed with consumer products and the Retail Sector in mind. The RCRA regulations, designed for industrial sources, have little practical application to retail, yet as detailed in the Retail Association's comments, retail is now the largest RCRA-regulated industry segment. This Proposed Rule, along with the Pharmacy Proposal, should be aimed at simplifying the regulatory burdens RCRA places on retail business. Walmart is concerned that EPA is overlooking the need of the Retail Sector for substantive RCRA reform as the two proposed rules impose additional complexity and multiple layers of regulation with little consideration for their impact on the Retail Sector. Thus, Walmart has serious concerns regarding the impacts of the "[I]mprovements" outlined in the Proposed Rule. (0233)
Response: The Agency has responded to comments from stakeholders and modified the proposed rule to account for their comments. Therefore, the Agency believes any increase in burden should be minimal to the retail sector.
Comment: Walmart strongly urges EPA to reconsider many aspects of the Proposed Rule, and in particular, to carefully consider how the Proposal will impact the Retail Sector that is uniquely situated in the universe of hazardous waste generators.

Additionally, by providing clarity around acceptable methods of calculating generator status to eliminate the "look back" nature of the current RCRA regulations and reducing the burdens on CESQGs/VSQGs that want to consolidate their waste, EPA will advance its goal of enhancing the protection of human health and the environment under RCRA. (0233)
Response: Again, the Agency has responded to comments from stakeholders and modified the proposed rule to account for their comments. Therefore, the Agency believes any increase in burden should be minimal to the retail sector
Comment: EPA has acknowledged that RCRA regulations were not designed with retail businesses and consumer products in mind. (0233)
Response: The Agency believes aresponse is not necessary for this comment.
Comment: As the Retail Associations estimated in their comments to the Proposed Rule, retail stores represent over a quarter of the registered LQGs in the country based on 2013 biennial reporting data. This is primarily because of discarded smoking cessation products that contain nicotine, such as nicotine gum. Presumably, no one at EPA had retail stores in mind when developing the hazardous waste management rules for LQGs.(0233)
Response: The hazardous waste generator rule addresses all generators. Developing a specific rule for the retail sector was outside the scope of this rule. 
Comment: To the contrary, EPA likely contemplated that facilities generating little threatening waste would fall into Conditionally Exempt Small Quantity Generator (CESQG) status, such as retail stores producing the same type of waste as households. With over 5,000 retail stores currently registered as LQGs, the seemingly common sense generator status framework under RCRA has been upended with retailers representing the single largest group of highly regulated hazardous waste generators.(0233)
Response: Retailers may be the largest single group, but they still represent only a small percentage of the overall hazardous waste generator universe.
Comment: In addition to the economic impacts and operational difficulties imposed by RCRA on the Retail Sector, enforcement has now aggressively followed RCRA's application to retail and consumer products, with environmental enforcement offices finding easy targets in businesses that literally had no understanding of how EPA and states would apply RCRA to long-standing retail business practices. Many of the largest RCRA fines in the last five years are against retail business and involve consumer products. (0233)
Response: The Agency has no comment.
Comment: While Advance is encouraged by the efforts made to improve the rules under the RCRA program, it would be extremely problematic for Advance to implement any of the proposed improvements due to the increased regulatory burdens that accompany each proposal. In light of the increased attention given to retailers by state and federal environmental agencies in recent years, we believe the Improvement Rule should undergo additional reviews and updates. Specifically, we believe there to be a need to include a retail focus in the Improvement Rule with consideration of the comments provided under the Hazardous Waste Management and the Retail Sector: Providing and Seeking Information on Practices to Enhance Effectiveness to the RCRA Program: Notice of Availability and Request for Comment (`NODA"). While the preamble states that several of the proposed provisions are the result of comments received from the NODA, there remains a significant "gap" regarding how the Improvement Rule could be effectively implemented in a retail setting. (0234)
Response: The Agency disagrees with the above comment.Retailers may be the largest single group, but they still represent only a small percentage of the overall hazardous waste generator universe.Similarly, developing a specific rule for the retail sector was outside the scope of this rule. 
Comment: (ii) On-Site Storage Should Not be an Assumption in the Improvement Rule.

In the preamble of the Improvement Rule, EPA states: "virtually every generator accumulates or stores its hazardous waste on site for some period before sending it to either an on-site or off-site permitted or interim status treatment storage or disposal facility (TSDF) or other RCRA-authorized disposal site." In consideration of a number of retail supply chain operations along with the constantly changing landscape within retail in general, Advance would encourage the EPA to reconsider this assumption.

Advance's stores are progressing to a "daily delivery" model in which stores receive a shipment of product from their distribution centers daily or at least five times a week. Such a model would also involve daily reverse logistics returns from the stores back to the distribution centers. The EPA should, therefore, provide retailers with an option to send single items (for example, one 20oz non-leaking bottle of wheel cleaner) that may be considered hazardous waste, back to a distribution center for evaluation and potential accumulation. In such a case (which would be the vast majority of time in our operations) the storage assumption at the store wouldn't reasonably apply, and the applicability and sensibility of the numerous storage, marking and labeling requirements which are proposed to apply even in instances of returns of single items simply burden retailers and may prevent using this reverse logistics approach to try to consolidate such products for more efficient disposal and potential recycling. (0234)
Response: The Agency does not regulate products. To the extent that it is clear that a return product can be recycled, the Agency does not have jurisdiction over it.
Comment: In its current form, the proposed rule will have a significant unintended but burdensome effect on the retail industry and its ability to efficiently recycle and reuse product, and we encourage the EPA to reconsider the structure developed to allow CESGQs to send their hazardous wastes for accumulation and either simplify the entire process or provide additional provisions/exemptions specifically for the retail industry to take advantage of the reverse logistics process and encourage efficiencies, increase proper waste disposal, and decrease the amount of hazardous waste generated. (0234)
Response: The Agency does not regulate products. To the extent that it is clear that a return product can be recycled, the Agency does not have jurisdiction over it.

Comment: 1. Need for a New Approach

According to EPA, "the average non-compliance rate with the RCRA hazardous waste determination regulation across the United States is approximately 34 percent." Id. at 57,937. Importantly, this rate of noncompliance exists more than thirty years after EPA issued its original regulations implementing RCRA. This level of non-compliance is due, at least in part, to the fact that the current hazardous waste management scheme is overly complex and is a poor fit for nonindustrial sectors.

As discussed above, the high burden on retailers, who must be experts on thousands (and potentially millions) of consumer products, is simply disproportionate to the actual risks associated with those products. Each consumer product is a low volume waste stream for retailers. SDSs provide information on consumer products that may be analyzed by experts to determine whether the products are hazardous waste when discarded. However, such experts are not present at the typical retail store. SDSs do not contain clear disposal instructions for retail employees to follow. Instead, they often simply state: "Dispose of in accordance with all federal, state and local regulations." The retail and healthcare sectors need a tool that seamlessly integrates waste characterization information into the supply chain. Perhaps most importantly, the tool needs to be user friendly in order to address the reality that employees at retail stores often lack technical/chemical expertise, have high turnover rates, and must manage thousands (or even millions) of different products. Inmar has developed such a tool: the HazApp tool in the hands of the non-expert allows for real-time waste characterization of millions of consumer products. (0260)


Response: The Agency believes a response is unnecessary for this comment other than that hopefully this HazApp tool is responsible to retailer needs..
Comment: Inmar appreciates the fact that EPA has expressed willingness to better balance the burdens placed on the retail and healthcare sectors with the actual, minimal risks associated with the management of consumer product wastes. However, in important respects, the Proposed Rule does precisely the opposite. Rather than streamline and tailor requirements for the retail and healthcare sectors, the Proposed Rule imposes broad, burdensome, and impossibly vague new requirements. We strongly encourage EPA to revisit the rule in light of the unique challenges faced by the retail and health care sectors and to revise it accordingly. (0260)
Response: Developing a specific rule for the retail sector was outside the scope of this rule. 

Section 13 - Out of Scope
 Total Number of Submissions: 14
 Total Number of Comments: 17


Comment:  I support strong new regulations to shut down the trade in ivory.  (0056)

Response: This comment is beyond the scope of this rule.
Comment: A large generator of hazardous materials (Chromic Acids, Permanganates, Formaldehydes, other solvents, etc.) is the Automotive Industry which current plating technologies were developed. This technology is also used in the Toy, Medical, Food, Pharmaceutical and Aerospace industries. Companies have tried to eliminate the use of the materials but keep coming back as there hasn't been an option. Now there is.
We have two Doctorates of Material Chemistry Engineering that have developed a process to metalize plastics without any of the current hazardous materials, in fact it is 100% environmental friendly. 
We have tried to contact a number of agencies but to no avail. 
How do we get the attention for this new chemistry. It needs to be reviewed and considered as innovative technology that can impact the current issues of hazardous materials in the referenced industries. 
This is new technology, not a twist on the old. It needs to be understood by the EPA and how this can aid to the goal of limiting the manufacturing, use and disposal of the above referenced chemicals. The above are on the listing for elimination. , 
This is not a Marketing ploy, as we are the developer. We truly believe this can have a positive and huge impact towards goals. (0069)
Response: This comment is beyond the scope of this rule.

Comment: §262.16(b)(2)(iii)(A), page 57996
I believe at the end of the paragraph the wording "or for bona fide treatment" should be added. EPA allows wastes to be treated in containers. To treat the waste the container must be opened, but the current regulations only allow a container to be opened when waste is added or removed, not for treatment. By adding these words it would clarify to regulators and the regulated community that containers can be opened for these legitimate purposes. The paragraph should read, "A container holding hazardous waste must always be closed during accumulation, except when it is necessary to add or remove waste, or for bona fide treatment." 
Response: The Agency disagrees with this comment because "bona fide treatment" is never defined. Similarly, this comment is beyond the scope of this rule.

§262.17(a)(1)(iv)(A), page 57999
I believe at the end of the paragraph the wording "or for bona fide treatment" should be added. EPA allows wastes to be treated in containers. To treat the waste the container must be opened, but the current regulations only allow a container to be opened when waste is added or removed, not for treatment. By adding these words it would clarify to regulators and the regulated community that containers can be opened for these legitimate purposes. The paragraph should read, "A container holding hazardous waste must always be closed during accumulation, except when it is necessary to add or remove waste, or for bona fide treatment."  (0079)
Response: The Agency disagrees with this comment because "bona fide treatment" is never defined. Similarly, this comment is beyond the scope of this rule.
Comment: I think it is time for the EPA to create a body (committee) that includes seasoned professionals from the ranks of academia for the exclusive purpose of advancing environmental protection through collaborative regulatory policy making centered on RCRA and the Clean Water Act. Colleges and universities are the institutions where EPA and others derive their personnel and expertise. The EPA didn't institute its data through sources from within....it utilizes individuals with academic acumen on the topics of the day to help identify and promulgate policy and law. (0095)
Response: The Agency does have a Science Advisory Board (SAB) to assist us in reviewing and critiquing scientific efforts developed by the Agency that may be used to support future rulemakings. Likewise, the Agency works with many academics independent of the SAB in its efforts to protect the environment. These efforts are almost always collaborative.    

Comment: :: Wastewater Treatment Exclusion. EPA should next look at this exclusion as it pertains to the plating industry. I think if EPA really evaluated this exclusion, EPA would determine that soil and groundwater are being impacted by metal platers at an alarming rate. Eliminating or reducing the exclusion for platers, would greatly reduce the impact of this sector of the industry on the environment.
Response: This comment is beyond the scope of this rulemaking. However, most electroplating operations produce sludges that are regulated as listed hazardous wastes. Any wastewaters discharged fall under the jurisdiction of the Clean Water Act.   

:: U and P Hazardous Waste Listings. A number of different hazardous materials have been developed and distributed since EPA originally developed the original U and P hazardous waste lists. EPA should obtain the resources necessary to evaluate if newly generated hazardous materials (e.g., pesticides, pharmaceuticals) should be added to these lists. (0160)
Response: This comment is beyond the scope of this rulemaking. However, in lieu of new listings, an alternative is for generators of newly generated hazardous wastes to determine if their wastes are characteristically hazardous for ignitability, corrosivity, reactivity and toxicity using prescribed test methods and knowledge of their wastes.

Comment: Recommended Updates to the EPCRA Reporting Requirements, to Improve Effectiveness and Promote Consolidation of Reporting with Hazardous Waste and Related Requirements

EPA is proposing changes to the hazardous waste regulations, based on experience and to address issues that have developed over the course of the last 30 plus years. In 2016, we will reach the 30 year anniversary of the establishment of the Emergency Planning and Community Right-to-know Act (EPCRA). This is an opportune time to reevaluate the EPCRA requirements, and particularly those aspects that would allow consolidation not only within the current EPCRA sections, but also with hazardous waste requirements and other programs related to emergency planning and response. Appropriate changes could result in a program that is more effective in protecting human health and the environment.

These EPCRA related comments involve the facility emergency planning notification requirements under EPCRA Sections 302 and 303, the MSDS (now SDS) reporting requirements under Section 311, and the emergency and hazardous chemical inventory reporting requirements under Section 312. While reporting under these provisions has been useful, many of them were designed with initial implementation in mind, and at a time when paper reporting processes were the norm. As a result, there are a number of areas that could be significantly improved for more effective implementation today.

:: Main Issues

o Section 302/303 emergency planning notifications

:: These can essentially be a one-time notice conveying that the facility has an EHS onsite above the TPQ. If there's no change at the facility to require contact with the LEPC, there's no additional reporting.

:: The notifications are submitted only to the SERC and LEPC, and identification of the facility emergency coordinator and information on changes at the facility only to the LEPC.

:: The exemptions that apply for Sections 311 and 312 reporting do not apply to Section 302 notifications. As such, there can be facilities required to submit Section 302 notifications, but not report under Sections 311/312. If these facilities are important enough to be subject to LEPC community emergency planning, why shouldn't they provide this information as part of Section 3 11/312 reporting to fire departments?

o Section 311

:: When established, this provision was focused on facilities providing Material Safety Data Sheets (now SDSs). With the advent of numerous computerized and online reference sources, the need for submission of SDSs has significantly diminished. In addition, the collection and management of SDSs and SDS updates is very resource intensive.

:: The real substance and purpose of Section 311 notifications has evolved to be the method for facilities to update their inventory of hazardous chemicals onsite, reported under Section 312. However, in this respect, this provision is significantly lacking. Facilities can fulfill the requirement by providing either the SDS for a chemical when it first exceeds the threshold, or, as is the case most often, by identifying the substance and providing only very basic information on the physical/health hazard categories applicable to the substance. There is no provision to require information on amounts, locations, etc. until the next annual Section 312 report.

o Section 312

:: The information within the report submitted by March 1 each year, is mandated to cover the previous calendar year. The information can be outdated when submitted. Because the report format includes the designation that it covers the previous year, it can't neatly be used to collect updated information. Technically, even new chemical substances that first exceed the threshold at a facility between January 1 and the March 1 deadline can't be included, because the report is for the previous calendar year, and the authorized facility representative is certifying that the information is correct for the previous year.

:: The submittals contain information on emergency contacts at the facility. However, there is no requirement to update this information when it changes, until the following March 1 submittal. (Note -under the hazardous waste requirements, contingency plans must be updated when the list of emergency coordinators changes.)

o For EPCRA information about a facility during an incident, a responder would need to look at the facility's Section 302/303 information for potential information on EHSs onsite that are not reportable under other Sections of EPCRA, the facility's Section 312 report which covers the last calendar year, and Section 311 updates for identification of any newly reportable chemicals on site. As noted in the proposed hazardous waste regulations concerning the possible inclusion of executive summary for the hazardous waste contingency plan, responders need concise, readily available information. The current approach with multiple separate and distinct report formats under EPCRA does not meet this need.

o The framework of the current provisions is actually providing a roadblock for system approaches to streamlining this process. In Delaware for example, we established a Web-based reporting system which allows facilities to enter and update their EPCRA reports online, which are then accessible by emergency planning and response organizations thru the same system. When facilities have new reportable chemicals onsite to report under Section 302/303 or under Section 311, the current regulatory framework limits what data is collected and how. The system would easily allow a more consolidated option of updating one complete and current inventory, which would be easier for facilities and more effective for planners and responders, but the current regulatory framework complicates and limits this approach.

o The timeframes for submission/updating of various information within the EPCRA requirements is unnecessarily cumbersome.

:: Initial notifications under Sections 302 are required within 60 days.

:: Section 303 notices from facilities of changes that may be relevant to emergency planning must be made within 30 days.

:: Section 311 notices must be submitted within 3 months.

:: Comments/recommendations for change

o The Section 302/303. 311, and 312 reporting requirements should be updated and consolidated into a one comprehensive and current inventory reporting approach.

:: With recent updates to the Tier II annual hazardous chemical inventory reporting forms for Section 312, EPA included elements to identify whether or not the facility is subject to EPCRA Section 302, and if so, to identify the emergency facility emergency coordinator as required under Section 303. Thus the Tier II form could be used to fulfill these Section 302/303 requirements. All Section 302/303 covered facilities would be included in the inventory reporting and update process.

:: Instead of the current Tier II form being submitted by March 1 covering the previous calendar year, the form and related requirement should be updated to reflect current information relative to the facility. Recognizing that many States and other areas have developed fee mechanisms based on the annual Tier II reports due March 1, this approach could be established with an annual requirement for facilities to re-certify their current inventory and emergency contact information by March 1, thus keeping the March 1 submittal concept intact. The report forms would include a designation of the report as either an initial submittal from a newly covered facility, an annual certification, or an update. The form would no longer be based on a calendar year.

:: The Section 311 requirements would be modified to function simply as the update requirement for the comprehensive and current inventory report.

:: One time frame would need to be selected from the current variants of 30 days, 60 days, and 3 months. For example, if 60 days was selected, newly covered facilities would have 60 days to submit their initial inventory submittal. As newly covered chemicals arose at a facility, an emergency contact changed, or other relevant changes occurred impacting the inventory information, the facility would have 60 days to submit an updated inventory submittal. The facility would update and recertify their current inventory information annually by March 1.

o This approach would result in the current Section 302/303, 311, and 312 requirements being consolidated into one comprehensive report submittal process, which should be more efficient for facilities as well as planners and responders.

o This approach would be needed to facilitate the consolidation of hazardous chemical inventory reporting under EPCRA with the related hazardous waste preparedness and response requirements. (See discussion on Proposed Summary for Hazardous Waste Contingency Plans below.) The hazardous waste requirements appear to be focused on current information, rather than the previous year. Within the proposed rulemaking, EPA is requesting comments on time frames for updates to hazardous waste arrangements/plans/summaries. With the proposed changes to EPCRA outline above, the times frames with the hazardous waste requirements could be established with the same time period required for submittal and updates. (0204)

Response: While very thoughtful comments, they are beyond the scope of this rulemaking. The Agency recommends this commenter discuss their thoughts with EPA's Office of Emergency Management. 
Comment: :: 262.17(a)(3)(ii) - Drip pad recordkeeping  -  Please clarify. Do the documentation requirements apply to the quantity of process solution collected in the drip pad sump that is returned to the preservative storage tanks? (0214)

Response: No, documentation requirements do not apply to the quantity of process solution collected in the drip pad sump that is returned to the preservative storage tanks.

Comment: One State noted for those States that adopt by reference it will be easy, for those who do not, it will be a very time consuming. (0217)
Response: The Agency has no comment since the reauthorization process for such states varies from state to state.  
Comment: EPA should also consider how such a waiver would impact a generator's insurance policy. (0217)
 
Response: This comment is beyond the scope of this rulemaking.

Comment: Walmart encourages EPA to release guidance on the non-hazardous management of consumer product aerosol cans under RCRA. (0233)
Response: The Agency continues to work on such a policy statement.
Comment: Retailers have reported difficulties complying with the Subtitle C hazardous waste regulations for a number of reasons:

1. Workers are not always knowledgeable about the RCRA hazardous waste regulations, but are nonetheless often involved in the implementation of the regulations. 
2. A retail chain can have thousands of items in its inventory, making it difficult to ascertain which ones are hazardous wastes when disposed. 
3. The information available for waste determination from manufacturers and suppliers is usually woefully insufficient for compliant waste classification.
4. The items in inventory are constantly being changed, with new ones and variations being added.
5. In addition to RCRA, there are a number of States with their own regulations, which must be complied with by facilities in those States.

Retailers that receive WERCSmart data mandate that their suppliers enter full product formulation and answer property and use questions related to their products in our web-based system. We then perform an independent third-party review of the data submitted by suppliers and derive data points that meet retailers compliance needs (relating to storage, handling, global transportation classification and waste determination for chemical-containing products) without disclosing suppliers' full product formulation. 

Retailers with damaged or out-of-date products then have waste handling data directly available to them real-time. We offer various solutions to retailers including scanners and phone apps that allow rapid access to data on a product on the shelf (or the floor) via the UPC. While our software determines the applicable RCRA and State waste codes, we also customize a retailers' output to its respective waste management system, often referred to as the "buckets" into which a retailer will separate its waste. We believe that if classifications are kept simple and can be applied rapidly at point of origin, compliance can be facilitated. 

WERCSmart serves to document not only products deemed hazardous for disposal, but also those products that are not. This results from WERCSmart retailers mandating that their suppliers enter full product formulation for every chemical-containing product into our system for review. Thus, every chemical-containing product is reviewed to determine hazardous characteristics and any waste classification. 

Participation in WERCSmart represents a significant investment in many different respects by suppliers and retailers. With that in mind, we have continually sought over the years to develop and implement additional functionality in WERCSmart to assist our users with compliance and other business-reporting needs. We are further leveraging the WERCSmart logic, processes and tools developed for the retail sector by adapting it for use in our hazard communication and regulatory compliance software in use by many commercial, industrial and manufacturing companies world-wide. This allows our non-retailer customers the same capabilities for dealing with their respective suppliers, products and waste streams. 

We are in the process of addressing many of the questions raised in the Proposed Rule and seek to develop workable solutions. While the Proposed Rule does not address programs such as the WERCSmart platform, we believe it is a successfully operating system worth highlighting for your consideration and would welcome any questions you may have. (0246)
Response: The Agency appreciates the efforts of this commenter in trying to support the waste identification process for retailers. 

Comment: Procorem software platform supported by OWR hazardous waste expertise has the proven electronic system and knowledge to provide the requested Hazardous Waste Determination Electronic Decision Tool. 

Procorem, developed by ProLink Solutions, is a secure web portal technology designed for government and regulatory agencies, which incorporates best practices in risk management, compliance, and collaboration. Heavily in use in the Affordable Housing Industry by Housing Finance Agencies (HFAs), Procorem is a proven tool for government agencies managing program level compliance. 

OWR provides subject matter expertise for the hazardous waste determination. OWR has evaluated hundreds of complex waste determination cases including point of generation, characteristic and listing applicability and consideration of exclusions based on established regulations and guidance.

Procorem maintains a growing number of private engineering organizations as clients and is delivered via a web-based application, which is easily accessible on any device with an Internet connection. 

Procorem's core features include:
:: Private, invite-only WorkCenters to control the flow of information
:: File sharing, versioning and collaboration
:: Configurable security roles and permissions
:: Encrypted file and folder infrastructure
:: Enterprise task management (multi-assignee, multi-approver, task flow)
:: Account and WorkCenter calendars
:: Time-stamping and complete audit history of all user activity
:: Activity Feeds
:: Comment on files, tasks, and to all collaborators
:: Email integration and notifications 
:: Mobile enabled
:: Custom Industry Apps (e.g. Hazardous Waste Compliance Reports)
:: Secure API
OWR sees Procorem as an application that can serve as the Hazardous Waste Determination Electronic Decision Tool for the EPA. With Procorem, compliance reports and data could be submitted electronically and securely from any location. 

Procorem can facilitate a number of key requirements for the EPA Hazardous Waste Generator Improvements Rule:
:: Private, secure portal for every company involved in the program
:: Custom security will ensure no organizations have access to restricted information
:: Audit record of all activity ensures accurate record keeping and reporting compliance
:: Custom apps can be created developed for program specific requirements
:: Documents, compliance reports, and project data can be stored and versioned
:: Approval workflows can be configured to manage EPA decisions and actions
:: Email integrations ensure real time notifications to all participating organizations
:: Easy to use interface has been proven in similar projects
:: Create industry efficiencies (0251)
Response: The Agency will look into Procorem's efforts in supporting hazardous waste determinations for their customers.  
Comment: Procorem, described above, can provide canned and custom emergency response reporting and be fully integrated with the Hazardous Waste Determination Decision Tool. (0251)
Response: The Agency will look into Procorem's efforts in supporting hazardous waste determinations for their customers.  
Comment: On p 57962 (3rd col) is reference to the use of cell phones for emergency coordinators. We note that during emergencies affecting widespread areas (e.g., September 11, 2001 WTC and Pentagon attacks), cellphone reliability is severely hampered by heavy call volume in the immediate area. (0273)
Comment: For example, if the extraordinary January 15, 2009 "Miracle on the Hudson" incident had ended differently such that a nearby Consolidated Edison facility had been impacted, cellphone service to and from the facility's emergency coordinators would have been rendered inoperable at the very time it was needed most. (0273)

Response: The commenter raises a good point but identifies no solutions should such an event ever occur. Similarly, the Agency believes emergency response organizations must be aware of and preparing for these possibilities. 
Comment: 40 CFR 273.13 Universal Waste Management

:: 273.13 (d)(1)  -  this section is not specifically being amendment (amended?), however please consider removing the requirement that unbroken lamps be stored in closed containers. Requiring that these containers be closed while stored onsite is currently an administrative burden for many organizations. Un-broken lamps that are secured in containers do not pose a significant risk of exposure and therefore do not need to be closed. (0280)
Response: The Agency believes this comment is beyond the scope of this rulemaking. Similarly, the commenter fails to expound on why this requirement is an administrative burden. 

Comment: One commenter stated that EPA must also revise CESQG requirement to prohibit the burning of hazardous wastes in non-RCRA permitted incinerators (Commenter No. 134). There is no exemption in RCRA section 3004(q) for burning of hazardous wastes from CESQGs.
Response: EPA thanks the commenter for their suggestion but this is out of scope from what was proposed and EPA cannot address your comment within this rulemaking. 

