[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Rules and Regulations]
[Pages 85732-85829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27429]



[[Page 85731]]

Vol. 81

Monday,

No. 228

November 28, 2016

Part III





Environmental Protection Agency





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40 CFR Parts 257, 258, 260, et al.





Hazardous Waste Generator Improvements Rule; Final Rule

  Federal Register / Vol. 81 , No. 228 / Monday, November 28, 2016 / 
Rules and Regulations  

[[Page 85732]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 257, 258, 260, 261, 262, 263, 264, 265, 266, 267, 268, 
270, 271, 273, and 279

[EPA-HQ-RCRA-2012-0121; FRL 9947-26-OLEM]
RIN 2050-AG70


Hazardous Waste Generator Improvements Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: With this action, the United States Environmental Protection 
Agency (EPA) is finalizing revisions to the Resource Conservation and 
Recovery Act's (RCRA) hazardous waste generator regulatory program 
proposed on September 25, 2015. There are several objectives to these 
revisions. They include reorganizing the hazardous waste generator 
regulations to make them more user-friendly and thus improve their 
usability by the regulated community; providing a better understanding 
of how the RCRA hazardous waste generator regulatory program works; 
addressing gaps in the existing regulations to strengthen environmental 
protection; providing greater flexibility for hazardous waste 
generators to manage their hazardous waste in a cost-effective and 
protective manner; and making technical corrections and conforming 
changes to address inadvertent errors and remove obsolete references to 
programs that no longer exist. This final rule responds to the comments 
of EPA stakeholders, taking into consideration the mission of EPA and 
the goals of RCRA.

DATES: This final rule is effective on May 30, 2017. The incorporation 
by reference of certain publications listed in the regulations is 
approved by the Director of the Federal Register as of May 30, 2017.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-RCRA-2012-0121. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jim O'Leary, U.S. Environmental 
Protection Agency, Office of Resource Conservation and Recovery, (MC: 
5304P), 1200 Pennsylvania Ave. NW., Washington, DC 20460, (703) 308-
8827, ([email protected]) or Kathy Lett, U.S. Environmental Protection 
Agency, Office of Resource Conservation and Recovery, (MC: 5304P), 1200 
Pennsylvania Ave. NW., Washington, DC 20460, (703) 605-0761, 
([email protected]).

SUPPLEMENTARY INFORMATION:

I. Table of Contents

    The information presented in this preamble is organized as follows:

I. Table of Contents
II. General Information
    A. Does this action apply to me?
    B. Incorporation by Reference
III. Statutory Authority
IV. What is the intent of this final rule?
V. Background
    A. History of the Hazardous Waste Generator Program
    B. Hazardous Waste Generator Demographics
VI. Reorganization of the Hazardous Waste Generator Regulations and 
Organization of the Preamble
    A. Moving and Integrating Regulations From 40 CFR 261.5 Into 40 
CFR Part 262
    B. SQG and LQG Conditions for Exemption (40 CFR 262.16 and 
262.17)
    C. EPA Identification Number (40 CFR 262.12)
    D. What changed since proposal?
    E. Guidance and Implementation
VII. Detailed Discussion of Revisions to 40 CFR Part 260--Hazardous 
Waste Management System: General
    A. Generator Category Definitions (40 CFR 260.10)
    B. Generators That Generate Both Acute and Non-Acute Hazardous 
Waste in the Same Calendar Month (40 CFR 260.10)
    C. Definition of Central Accumulation Area (40 CFR 260.10)
VIII. Detailed Discussion of Revisions to 40 CFR Part 261--Requiring 
Biennial Reporting for Owners or Operators of Facilities That 
Recycle Hazardous Waste Without Storing It (40 CFR 261.6(c)(2))
    A. Introduction
    B. What is EPA finalizing?
    C. Major Comments
IX. Detailed Discussion of Revisions to 40 CFR Part 262--Standards 
Applicable to Generators of Hazardous Waste
    A. Addition of Terms Used in This Part and Changes to Purpose, 
Scope and Applicability (40 CFR 262.1 and 262.10)
    B. Waste Determinations (40 CFR 262.11)
    C. Determining Generator Category (40 CFR 262.13)
    D. Very Small Quantity Generator Conditions for Exemption (40 
CFR 262.14)
    E. Marking and Labeling and Hazardous Waste Numbers (40 CFR 
262.15(a)(5), 262.16(b)(6), 262.17(a)(5), 262.32(b)-(d), 263.12(b) 
and 268.50(a)(2)(i)
    F. Revisions to Satellite Accumulation Area (SAA) Regulations 
for SQGs and LQGs (262.15)
    G. Accumulation of Hazardous Waste by SQGs and LQGs on Drip Pads 
and in Containment Buildings
    H. Special Requirements for Ignitable and Reactive Wastes for 
LQGs (40 CFR 262.17(a)(1)(vi))
    I. LQG Closure Regulations (40 CFR 262.17(a)(8))
    J. Documentation of Inspections of Waste Accumulation Units
    K. Allowing VSGQs To Send Hazardous Waste to LQGs Under the 
Control of the Same Person (40 CFR 262.14(a)(5)(viii) and 262.17(f))
    L. EPA Identification Numbers and Re-Notification for SQGs and 
LQGs (40 CFR 262.18)
    M. Provision Prohibiting Generators from Disposing of Liquids in 
Landfills (40 CFR 262.14(b) and 262.35)
    N. Clarification of Biennial Reporting Requirements (40 CFR 
262.41, 264.75 and 265.75)
    O. Extending Time Limit for Accumulation Under Alternative 
Requirements for Laboratories Owned by Eligible Academic Entities 
(40 CFR Part 262 Subpart K)
    P. Deletion of Performance Track and Project XL Regulations
X. Addition to 40 CFR Part 262 for Generators That Temporarily 
Change Generator Category as a Result of an Episodic Event
    A. Introduction
    B. What is EPA finalizing?
    C. What changed since proposal?
    D. Major Comments
XI. Detailed Discussion of Preparedness, Prevention, and Emergency 
Procedures Provisions for SQGs (40 CFR 262.16) and LQGs (40 CFR 
262.17 and 40 CFR Part 262 Subpart M)
    A. Introduction
    B. What is EPA finalizing as proposed?
    C. What is EPA finalizing with changes to proposed rule 
language?
    D. What is EPA not including in the final rule?
XII. Technical Corrections and Conforming Changes to 40 CFR Parts 
257, 258, 260 Through 265, 270, 273, and 279
    A. What is EPA finalizing?
    B. What changed since proposal?
    C. Major Comments
XIII. Electronic Tools To Streamline Hazardous Waste Reporting and 
Recordkeeping Requirements
    A. Waste Determination Tools
    B. Emergency Response Executive Summary App
    C. Recordkeeping and Reporting Tools
    D. Analysis of Comments
XIV. Enforceability
XV. State Authorization
    A. Applicability of Rules in Authorized States
    B. Effect on State Authorization of Final Rule
XVI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review

[[Page 85733]]

    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Oder 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)

II. General Information

A. Does this action apply to me?

    Entities potentially affected by this action include between 
424,099 and 676,890 industrial entities that generate hazardous waste 
regulated under the RCRA Subtitle C regulations. Of this universe, 
between 353,441 and 591,809 are very small quantity generators 
(VSQGs),\1\ previously called conditionally exempt small quantity 
generators, whose regulatory obligations will only be affected if they 
choose to take advantage of either of the two voluntary programs being 
promulgated. Entities potentially affected by this final rule include 
practically every industrial sector, including printing, petroleum 
refining, chemical manufacturing, plastics and resin manufacturing, 
pharmaceutical manufacturing, paint and coatings, iron and steelmaking, 
secondary smelting and refining, metal manufacturing, electroplating, 
circuit board manufacturing, and automobile manufacturing, among other 
industries.
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    \1\ EPA is finalizing its proposed change to rename 
``Conditionally exempt small quantity generators'' as ``Very small 
quantity generators.'' A discussion of this change can be found in 
section VII.A.
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    As discussed in section XVI.A, the Regulatory Impact Analysis (RIA) 
for this action, available in the docket for this action, estimates the 
future annualized cost to industry to comply with the requirements is 
between $5.9 and $13.3 million (at a 7% discount rate). The estimated 
annualized benefits for entities opting to take advantage of two 
voluntary programs in the final rule (e.g., consolidation of VSQG waste 
by large quantity generators (LQGs) under the same ownership, and 
generators who change regulatory status episodically) are between $8.3 
and $14.4 million (at a 7% discount rate). This results in a net 
annualized benefit for the rule of $2.4 million for the low-end 
estimate and $1.1 million for the high-end estimate at a 7% discount 
rate.
    The Hazardous Waste Generator Improvements Rule is expected to 
yield a variety of benefits as generators change several of their waste 
management practices to comply with the regulations. These benefits 
reflect the rule's focus on enhancing protection of human health and 
the environment while improving the efficiency of the RCRA hazardous 
waste generator standards. Ideally, the Agency would prefer to quantify 
and monetize the rule's total benefits. However, only some categories 
of benefits are quantifiable; sufficient data are not available to 
support a detailed quantitative analysis for a majority of the benefit 
categories. For example, the added flexibility from allowing a large 
quantity generator accumulating ignitable or reactive hazardous waste 
to obtain an approval from the authority having jurisdiction (AHJ) over 
the fire code for the 50-foot property line requirement at 40 CFR 
265.176 (provided other safety requirements are met) is difficult to 
quantify. In addition, quantifying the benefits associated with 
emergency response due to changes in container labeling would require 
data on the annual number of emergencies at generator sites, the 
current risks associated with these incidents, the extent to which more 
detailed labeling would affect the procedures of emergency responders, 
and the reduction in risk associated with these changes. Detailed data 
on these items are not readily available. In this and in similar cases, 
the benefits are described qualitatively.

B. Incorporation by Reference (IBR)

    This final rule is not adding any new IBR material; however, EPA is 
reorganizing one of the existing requirements containing IBR material 
to make the regulation easier for the reader to follow. EPA is copying 
Sec.  265.201(g)(2) to Sec.  262.16(b)(3)(vii)(B). To accommodate this 
change, EPA is updating Sec.  260.11(d)(1), which is the IBR reference 
section for these regulations, by adding a reference to Sec.  262.16. 
The materials being incorporated by reference are for the National Fire 
Protection Association (NFPA), Flammable and Combustible Liquids Code 
(NFPA 30), 1977 and 1981. NFPA 30 addresses the fire and prevention 
codes associated with flammable and combustible liquids. The 1981 
edition modifies Chapter 4, Container and Portable Tank Storage of the 
1977 edition to address such areas as portable tanks, basement storage 
areas, cutoff rooms and attached buildings, indoor storage and general 
purpose warehouses. They are available for inspection through NFPA's 
Free Access site, http://www.nfpa.org/freeaccess. Copies may be 
obtained from the National Fire Protection Association, 1 Batterymarch 
Park, Quincy, MA 02269. (For ordering information, call toll-free 1-
800-344- 3555 or visit http://www.nfpa.org/codes-and-standards.)

III. Statutory Authority

    These regulations are promulgated under the authority of sections 
2002, 3001, 3002, 3003, 3004, 3005, 3007, and 3010 of the Solid Waste 
Disposal Act of 1965, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924. 
This statute is commonly referred to as ``RCRA.''

IV. What is the intent of this final rule?

    This final rule promulgates over 60 revisions and new provisions to 
the hazardous waste generator regulatory program. The primary intent of 
these provisions is to foster improved compliance by hazardous waste 
generators in the identification and management of the hazardous waste 
they generate and, as a result, improve protection of human health and 
the environment. Another major objective of this rule is to support the 
efficient implementation of the hazardous waste generator regulations 
by the states.
    The Agency intends to achieve these objectives in several ways. For 
example, the most frequent comment the Agency received when it 
conducted a program evaluation of the hazardous waste generator 
regulatory program in 2004 was to improve the user-friendliness of the 
regulations. Prior to this action, the generator regulations were found 
in several parts of the Code of Federal Regulations (CFR). This final 
rule reorganizes and consolidates most of the generator regulatory 
program into 40 CFR part 262, with exceptions for very technical and 
lengthy regulations, such as the RCRA air emissions standards and the 
land disposal restriction requirements.
    Another important component of this rule is to explain in greater 
detail how the hazardous waste generator regulations actually work. As 
explained later on, there are two types of regulatory standards for the 
hazardous waste generator program: Conditions that must be met in order 
to obtain an exemption from permitting (``conditions for exemption'') 
and requirements that apply to generators regardless of

[[Page 85734]]

whether or not they choose to obtain an exemption from the permit 
requirement (``independent requirements''). The Agency notes that these 
clarifications regarding the distinction between independent generator 
requirements and the conditions for exemption do not fundamentally 
alter the way the generator regulatory scheme has operated over the 
last 30 years. Similarly, the enforcement consequences of independent 
requirement violations and non-compliance with conditions for exemption 
do not signal a change from how the great majority of enforcement 
efforts have been pursued when violations of these regulations are 
detected.
    This final rule also incorporates numerous clarifications to 
different components of the hazardous waste generator regulatory 
program made by the Agency through the years in Federal Register 
notices, guidance, correspondence, and policy. For example, a key 
component of the program is that generators need to make accurate 
hazardous waste determinations. While the Agency has stated in Federal 
Register preambles and correspondence from the beginning of the program 
that solid and hazardous waste determinations must be made at the point 
of generation before any dilution, mixing, or other alteration of the 
waste occurs, we have never incorporated such an important concept into 
regulation. This final rule does so. Also, most generators use 
knowledge of their processes and feedstocks to determine if they have 
generated a hazardous waste. In response to comments from the regulated 
community, this final rule provides additional information and clarity 
as to what constitutes ``generator knowledge'' to determine whether a 
listed and/or characteristic hazardous waste has been generated. 
Providing this information to the regulated community enables the 
generators to more readily comply with the requirements.
    Similarly, this final rule clarifies that a generator can only be 
in one category for a calendar month and explains how to count the 
hazardous waste it generates (i.e., acute hazardous waste, non-acute 
hazardous waste, and residues from the cleanup of acute hazardous waste 
generated in a calendar month) to determine its regulatory category, 
and therefore, which set of regulations to comply with. Another 
important clarification explains the implications of when a generator 
mixes a solid waste with a hazardous waste, and the regulations a 
generator must be aware of if it decides to mix wastes. Further 
clarifications address closure, biennial reporting, waste accumulation, 
liquids in landfills, emergency response, and the marking and labeling 
of containers, tanks, drip pads, and containment buildings. All 
together, these revisions to the generator program provide the 
generators themselves better access to both the regulations with which 
they are required to comply and some of the information that was 
previously only available in guidance.
    From experience through the years, the Agency also has identified 
regulatory gaps resulting in either program inefficiencies or 
ineffectiveness. For example, prior to this final rule, large quantity 
generators (LQGs) were not required to notify EPA or most states when 
they close their facility. Without such information, implementing 
agencies did not have confirmation a whether or not the generators 
complied with specified closure performance standards. Generators also 
were not required to identify and communicate the hazards associated 
with the hazardous waste they generate and accumulate on-site, nor to 
ensure working relationships with local emergency authorities. This 
final rule addresses these concerns.
    Similarly, prior to this rulemaking, SQGs were only required to 
submit a notification when they first identified themselves as a 
hazardous waste generator to obtain a RCRA identification number, and 
to be able to ship hazardous waste off-site to a permitted treatment, 
storage and disposal facility (TSDF). As a result, the Agency and many 
states databases for this universe of generators became unreliable 
because there was no notification if the generator went out of 
business, changed ownership, or changed their regulatory category. This 
final rule addresses this data gap by requiring SQGs to re-notify every 
four years.
    With this final rule, the Agency also has responded to requests 
that additional flexibility be provided in the implementation of the 
program. For example, VSQGs will now be able to send their hazardous 
waste to LQGs under the control of the same person to allow 
consolidation and improved management of their hazardous waste. Another 
provision being added in this final rule will allow VSQGs and SQGs to 
maintain their existing regulatory category when they generate 
additional amounts of hazardous wastes as a result of an episodic 
event, provided they comply with specific conditions. This final rule 
also will allow an LQG to apply for a site-specific approval from the 
authority having jurisdiction (AHJ) over the fire code when they are 
unable to meet the 50 feet property line requirement for the 
accumulation of ignitable or reactive waste. Together, these provisions 
that add flexibility to the regulations better represent the real-world 
conditions that many of the smaller hazardous waste generators operate 
under and ensure and allow proper management of hazardous waste while 
under those conditions.
    The RCRA hazardous waste generator regulatory program is primarily 
administered by the states, and therefore, its success is predicated in 
EPA supporting their inspection, enforcement and permitting activities. 
The Agency will work with the states to support their efforts in 
becoming authorized for these program revisions and will support both 
the regulated community and the implementing agencies in their efforts 
to comply with these new provisions.

V. Background

A. History of the Hazardous Waste Generator Program

    For the most part, the regulations for hazardous waste generators 
have not changed significantly since 1980, except for three major 
modifications. First, as a result of the Hazardous and Solid Waste 
Amendments (HSWA) of 1984, EPA promulgated a rule that created three 
generator categories; i.e., conditionally exempt small quantity 
generators, small quantity generators and large quantity generators (51 
FR 10146, March 24, 1986). Prior to that rule the regulatory framework 
for hazardous waste generators consisted of two categories: Small 
quantity generators and large quantity generators. The 1986 rule split 
the SQG category in two and created conditionally exempt small quantity 
generators (CESQG) (now known in this final rule as very small quantity 
generators).
    Second, also as a result of HSWA and the Land Disposal Restriction 
(LDRs) regulations,\2\ hazardous waste generators were required to 
ensure that their hazardous waste either met a specified treatment 
standard or performance standard, or, if neither, that the waste was 
treated to specified concentrations or performance standards prior to 
land disposal.
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    \2\ There are several regulations associated with LDRs. The more 
important Federal Register notices associated with these regulations 
include: 51 FR 40636, November 7, 1986; 52 FR 25787, July 8, 1987; 
53 FR 31211, August 17, 1988; 54 FR 26647, June 23, 1989; 55 FR 
22520, June 1, 1990; 57 FR 37194, August 18, 1992.
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    Third, the Agency modified the Uniform Hazardous Waste Manifest 
regulations and associated manifest

[[Page 85735]]

document used to track hazardous waste from a generator's site to its 
ultimate disposition (70 FR 10776, March 4, 2005; 70 FR 35034, June 16, 
2005). The revisions to the manifest standardized the content and 
appearance of the manifest form, made the forms available from a 
greater number of sources, and adopted new procedures for tracking 
certain types of hazardous waste shipments with the manifest. 
Otherwise, the changes that have occurred to the hazardous waste 
generator regulatory program have been relatively minor.

B. Hazardous Waste Generator Demographics

    In 2013, approximately 25,300 generators reported generating 
approximately 35.2 million tons of hazardous waste. Of the total number 
of reporting generators, approximately 20,800 were LQGs while 4,500 
were non-LQGs, meaning these entities submitted a biennial report but 
did not report generating sufficient amounts of hazardous waste to be 
categorized as an LQG.\3\
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    \3\ See ``Regulatory Impact Assessment of the Potential Costs, 
Benefits, and Other Impacts of the Final Hazardous Waste Generator 
Improvements Rule.'' A copy of the analysis is available in the 
docket for this action.
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    In 2013, LQGs generated approximately 35.2 million tons of 
hazardous waste in the aggregate. The 50 largest hazardous waste 
generators reported generating 29.2 million tons, or 83 percent of the 
total reported amount. While in total LQGs managed on average 13 waste 
streams (the mean), approximately 11,000 LQGs (or approximately 53 
percent) managed 6 waste streams (the median) or less. Approximately 
9600 LQGs (or approximately 46 percent) generated between 1 and 5 waste 
streams. These generators included sites from the waste treatment 
industry as well as academic and industrial laboratories. Overall, the 
Agency estimates that LQGs generate between 6 and 13 hazardous waste 
streams each year, which represents the median and mean number of 
wastes streams per LQG.\4\
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    \4\ Ibid.
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    Of the 35.2 million tons of hazardous waste generated by LQGs in 
2013, 33.4 million tons, or 95 percent, were generated in just five 
industrial sectors: Chemical manufacturing (NAICS 325); petroleum and 
coal products manufacturing (NAICS 324); waste management and 
remediation services (NAICS 562); primary metal manufacturing (NAICS 
331); and mining (NAICS 212).\5\
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    \5\ Ibid.
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    Unlike LQGs, who must submit a biennial report every two years 
describing the types and quantities of hazardous waste generated and 
its subsequent disposition, SQGs have not been required to provide such 
information to the Agency. Consequently, EPA lacks the level of detail 
for SQGs that is available for LQGs. However, based on a review of 
biennial report data provided by treatment, storage, and disposal 
facilities \6\ (which must report waste received from all hazardous 
waste generators) and site identification data (from SQGs obtaining an 
EPA ID number), EPA estimates the number of SQGs to range from 
approximately 49,900 to 64,300.\7\
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    \6\ See the Waste Received (WR) form as part of Biennial Report 
(EPA Form 8700-13A/B).
    \7\ See ``Regulatory Impact Assessment of the Potential Costs, 
Benefits, and Other Impacts of the Final Hazardous Waste Generator 
Improvements Rule.'' A copy of the analysis is available in the 
docket for this action.
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    Because VSQGs are not required to obtain a RCRA ID, the information 
available to the Agency is limited to those states that require their 
VSQGs to obtain a RCRA ID. Therefore, in estimating the size of the 
VSQG universe, the Agency developed a methodology that extrapolated the 
size of the VSQG universes based on the data available in those states 
that require VSQGs to obtain a RCRA ID. We first calculated the ratio 
of VSQGs to SQGs and VSQGs to LQGs in those states where information 
was available on the VSQG universe. Wethen used those ratios to 
estimate the size of a state's VSQG universe where VSQG information was 
unavailable. Using this methodology, EPA currently estimates the size 
of the VSQG universe to range from 353,400 to 591,800.\8\
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    \8\ Ibid.
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VI. Reorganization of the Hazardous Waste Generator Regulations and 
Organization of the Preamble

    EPA is finalizing its proposal to reorganize the hazardous waste 
generator regulations to make the regulations more user-friendly, which 
EPA expects will improve generator compliance. The most frequent 
stakeholder comment EPA received as part of its 2004 Program Evaluation 
of the hazardous waste generator program was to improve the user-
friendliness of the regulations. EPA proposed a reorganization on 
September 25, 2015 (80 FR 57918), and took comment on all aspects of 
that reorganization. The majority of the commenters supported EPA's 
proposal to reorganize the regulations, stating that they agreed with 
the Agency that the new framework is easier to understand, simpler, and 
will facilitate improved compliance by the regulated community. EPA 
also received some comments opposing the reorganization from commenters 
who were concerned that the changes would result in confusion for those 
who already understand the regulations and from commenters concerned 
about the cost of any necessary changes. After considering the 
comments, EPA has determined that reorganizing the regulations will 
result in a better, more straightforward set of regulations that is, on 
balance, easier for most people to understand, now and in the future of 
the generator program.
    This section serves as an introduction and a reference to the new 
look and feel of the generator regulations. This section makes passing 
mention of many of the provisions and revisions that we cover in much 
more detail later in the preamble. EPA has organized this preamble to 
correspond with the new organization of the regulations, discussing 
each provision being changed in its new relative place within the 
structure of the generator regulations. In addition, after the 
discussion in this section of where each provision will be found in the 
reorganized regulations, all following citations to regulatory text in 
this final rule will use the new citations found in the promulgated 
regulatory text. If applicable, we are including a note at the end of 
each section to direct the reader to where the same provision was found 
before the reorganization.
    EPA recognizes that the reorganization of these regulations may be 
a big adjustment for all those who use them, but has determined that 
the new structure makes better sense for a generator navigating through 
the system for the first time. Although many existing generators are 
familiar with the current regulations, every year many generators 
either enter the hazardous waste generator program or switch their 
generator category and therefore need to become familiar with their 
obligations. Similarly, an existing generator may need to examine a 
particular regulatory citation to ensure it is complying with the 
regulations correctly. The Agency believes that providing these 
generators with a user-friendly regulatory framework is an effective 
way to make the regulations easier to understand for those who need to 
comply with them.
    EPA intends to work closely with the states and other implementing 
agencies as well as the regulated community, particularly during the 
initial implementation period. EPA's efforts

[[Page 85736]]

will be to ensure all stakeholders are trained on the new organization 
and are given an opportunity to revise forms, guidance, and other 
materials as necessary. EPA will also be revising its own materials to 
reflect the new citations in the regulations.
    EPA is finalizing the following general organizational changes:
    (1) Integrating the generator regulations in Sec.  261.5 into the 
generator regulations at part 262 by moving Sec.  261.5 (which contains 
the regulations applicable to VSQGs, counting of hazardous waste, and 
mixing of hazardous wastes with non-hazardous wastes);
    (2) Separating the existing regulations at Sec.  262.34 for SQGs, 
LQGs and SAAs into three new sections:
    (a) Conditions for exemption for satellite accumulation areas (SAA) 
for small and large quantity generators,
    (b) Conditions for exemption for an SQG that accumulates hazardous 
waste; and
    (c) Conditions for exemption for an LQG that accumulates hazardous 
waste;
    (3) Using subtitles in these new sections; and
    (4) Where reasonable, incorporating the text of relevant part 265 
regulations into these new sections, rather than merely cross 
referencing them, as was the former approach.

A. Moving and Integrating Regulations From 40 CFR 261.5 Into 40 CFR 
Part 262

    Historically, certain hazardous waste generator regulations have 
been located in a different part of the regulations (40 CFR 261.5) from 
the rest of the generator regulations (40 CFR part 262). Many of the 
commenters on the proposal confirmed what EPA had heard from 
stakeholders who stated that the location of Sec.  261.5 was confusing 
and not user-friendly. Many commenters agreed that locating those 
requirements in part 262 to consolidate all the generator regulations 
in the same part was a useful revision that will alleviate much 
confusion in the regulated community and, in the process, will foster 
greater compliance with the regulations.
    Specifically, EPA is moving the definition of a VSQG that generates 
non-acute hazardous waste at Sec.  261.5(a) into the VSQG definition at 
Sec.  260.10, moving Sec.  261.5(c) through (e) about counting 
hazardous waste and Sec.  261.5(h) though (j) about VSQGs mixing waste 
to a new section at Sec.  262.13 titled ``Generator category 
determination'' and moving Sec.  261.5(b) and (f) and (g) to a new 
section at Sec.  262.14 titled ``Conditions for exemption for a very 
small quantity generator.'' \9\
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    \9\ EPA is renaming CESQGs to VSQGs (very small quantity 
generators). For a detailed discussion on this change, see section 
VII.A of this preamble.
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1. Hazardous Waste Generation Quantity Limits for VSQGs (40 CFR 260.10)
    Section 261.5(a) was previously used to set forth the non-acute 
hazardous waste quantity limits for a VSQG and Sec.  261.5(e) to 
provide quantity limits for generating acute hazardous waste and any 
residue or contaminated soil, waste, or other debris resulting from the 
cleanup of a spill of acute hazardous waste. Under the reorganized 
regulations, EPA now defines each category of generator at Sec.  
260.10, and, thus, Sec.  261.5(a) and (e) are incorporated into those 
definitions.
2. Determining Generator Category (40 CFR 262.13)
    Section 261.5(c) and (d) previously set forth the provisions for a 
hazardous waste generator to use in making its generator category 
determination. Every hazardous waste generator must because determine 
its generator category in order to identify which regulations are 
applicable to it. Because Sec.  261.5(c) and (d) are applicable to all 
hazardous waste generators, it makes sense to move them into 40 CFR 
part 262, with the other hazardous waste generator regulations. To 
further aid in making the regulations more user friendly, the Agency 
has promulgated a new section for generator category determination at 
Sec.  262.13, titled ``Generator category determination.'' This new 
section is thus located because, after a generator of a solid waste 
determines it has generated a hazardous waste (Sec.  262.11), the 
generator must then determine its hazardous waste generator category 
for the calendar month.
    In addition, Sec.  261.5(h) through (j), regarding the rules that 
apply for the mixing of hazardous waste with solid waste, including 
mixtures with used oil by VSQGs, have been relocated to Sec.  262.13, 
making them independent requirements rather than conditions for 
exemption. This move is logical in the context of the reorganization 
because the outcome of any determination a VSQG makes about the 
consequences of mixing waste ultimately affect its generator category 
first. In addition, Sec.  262.13 also contains a new citation to the 
mixing rule in Sec.  261.3 and makes it clear that the mixing rule 
applies to SQGs and LQGs. These revisions to the generator regulations 
are all discussed in more depth later in this preamble.
    Table 1--Crosswalk of Previous Citations to New Citations for 
Definitions and General Standards provides a summary of the crosswalk 
between the previous and new regulatory citations for determining a 
generator's category.

         Table 1--Crosswalk of Previous Citations to New Citations for Definitions and General Standards
----------------------------------------------------------------------------------------------------------------
              Regulation                  Previous citation           New citation               Comment
----------------------------------------------------------------------------------------------------------------
Definitions of Generator Categories..  Sec.  Sec.   260.10,     Sec.   260.10..........  Previous definition of
                                        261.5 and 262.34.                                 SQG in Sec.   260.10
                                                                                          was outdated.
                                                                                          Generator categories
                                                                                          were based on Sec.
                                                                                          Sec.   261.5 and
                                                                                          262.34.
Hazardous Waste Limits for VSQGs.....  Sec.   261.5(a) and (e)  Sec.   260.10..........  Included in the new
                                                                                          definition of VSQG.
Purpose, Scope, and Applicability....  Sec.   262.10..........  Sec.   262.10..........  Not moved, but expanded
                                                                                          significantly.
Hazardous Waste Determination and      Sec.  Sec.   262.11 and  Sec.   262.11..........  Content in Sec.
 Recordkeeping.                         262.40(c).                                        262.11 is expanded and
                                                                                          Sec.   262.40(c) is
                                                                                          incorporated.

[[Page 85737]]

 
Generator Category Determination.....  Sec.   261.5(c), (d),    Sec.   262.13..........  New section that
                                        and (h)-(j).                                      explains how to count
                                                                                          hazardous waste to
                                                                                          determine generator
                                                                                          category.
EPA Identification Numbers...........  Sec.   262.12..........  Sec.   262.18..........  Re-notification
                                                                                          requirements are also
                                                                                          in this section.
Landfill Ban for Liquids.............  Sec.   258.28..........  Sec.   262.35..........  For SQGs and LQGs.
----------------------------------------------------------------------------------------------------------------

3. VSQG Conditions for Exemption (40 CFR 262.14)
    Previous sections 261.5(b) and (f) through (j) established the 
regulations for VSQGs when accumulating acute and non-acute hazardous 
waste, identified where the acute and non-acute hazardous waste may be 
managed off site, and explained the implications of mixing hazardous 
waste with solid waste or used oil. Since these regulations set forth 
conditions for exemption for VSQGs, similar to how the regulations 
found in previous Sec.  262.34 set forth conditions for exemption for 
SQGs and LQGs, EPA is moving Sec.  261.5(b) and (f) and (g) to the 
newly created Sec.  262.14 titled, ``Conditions for exemption for a 
very small quantity generator.'' All the conditions for exemption for 
generators are now located parallel to one another in part 262. Section 
262.14 also includes the VSQG landfill ban for liquids and a new VSQG 
consolidation provision by LQGs under the control of the same person.
    In addition, VSQGs who episodically generate higher amounts of 
hazardous waste may follow the newly promulgated standards for episodic 
generation in part 262 subpart L in order to maintain their VSQG status 
while managing these higher amounts of hazardous waste. Table 2--
Crosswalk of Previous Citations to New Citations for VSQGs provides a 
crosswalk between the previous and the new VSQG conditions for 
exemption.

                       Table 2--Crosswalk of Previous Citations to New Citations for VSQGs
----------------------------------------------------------------------------------------------------------------
              Regulation                  Previous citation           New citation               Comment
----------------------------------------------------------------------------------------------------------------
VSQG Definition......................  Sec.   261.5(a)........  Sec.   260.10..........  Moved into new
                                                                                          definition of VSQG.
VSQG Mixtures........................  Sec.   261.5(h)-(j)....  Sec.   262.13(f).......  Moved into Generator
                                                                                          category
                                                                                          determination.
Conditions for Exemption for a Very    Sec.   261.5(b), (f),    Sec.   262.14..........  Included in VSQG
 Small Quantity Generator.              and (g).                                          conditions for
                                                                                          exemption.
VSQG Consolidation by LQGs Within the  N/A....................  Sec.                     New provision.
 Same Company.                                                   262.14(a)(5)(viii).
Landfill Ban for Liquids.............  Sec.   258.28..........  Sec.   262.14(b).......  Specific citation for
                                                                                          VSQGs.
Episodic Generation..................  N/A....................  Part 262 subpart L.....  New provision.
----------------------------------------------------------------------------------------------------------------

B. SQG and LQG Conditions for Exemption (40 CFR 262.16 and 262.17)

    SQGs and LQGs may accumulate their hazardous waste on site without 
complying with the storage facility permit and operating requirements, 
provided they follow all of the conditions for exemption established 
originally in Sec.  262.34. Section 262.34 became difficult to navigate 
because the SQG and LQG conditions for exemption were intertwined and 
contained many cross-references to sections in 40 CFR part 265. 
Therefore, the Agency is dividing Sec.  262.34 into three new sections 
at Sec. Sec.  262.15, 262.16 and 262.17. Section 262.15 lays out the 
conditions for exemption for SQGs and LQGs operating an SAA, Sec.  
262.16 identifies conditions for exemption for SQGs, and Sec.  262.17 
identifies the conditions for exemption for LQGs.
1. Satellite Accumulation Area Conditions for Exemption for SQGs and 
LQGs (40 CFR 262.15)
    Many generators use SAAs at their sites. These areas allow 
generators to accumulate hazardous waste near the point of generation 
under the control of the operator of the process generating the waste, 
which provides for efficiency and greater safety in the handling of 
hazardous waste. When the generator has accumulated 55 gallons of 
hazardous waste (or one quart of acute hazardous waste) in the SAA, the 
generator must then move the hazardous waste to the 90- or 180-day 
central accumulation area within three days. Under the old framework, 
the conditions for exemption for operating an SAA were located at Sec.  
262.34(c), between the hazardous waste accumulation conditions for LQGs 
and those for SQGs. This created confusion as to whether the provisions 
apply to LQGs only or to both SQGs and LQGs. In this final rule, the 
Agency is therefore moving 40 CFR 262.34(c) into its own section at 
Sec.  262.15 titled, ``Satellite accumulation area regulations for 
small and large quantity generators.''
    Additionally, the Agency is copying the text in Sec. Sec.  265.171, 
265.172 and 265.173(a) (which previously were simply referenced in 
Sec.  262.34(c)(1)(i)) into Sec.  262.15 in order to eliminate cross-
referencing and improve the user friendliness of the regulations. Table 
3--Crosswalk of Previous Citations to New Citations for SAAs provides a 
summary of the crosswalk between previous and new regulations for SAAs.

[[Page 85738]]



                       Table 3--Crosswalk of Previous Citations to New Citations for SAAs
----------------------------------------------------------------------------------------------------------------
              Regulation                  Previous citation           New citation               Comment
----------------------------------------------------------------------------------------------------------------
Satellite Accumulation Area            Sec.   262.34(c).......  Sec.   262.15..........  Moved from Sec.
 Provisions.                                                                              262.34.
Selected Part 265 Subpart I            Sec.   265.171.........  Sec.   262.15(a)(1)....  Duplicated from part
 Provisions.                                                                              265.
Selected Part 265 Subpart I            Sec.   265.172.........  Sec.   262.15(a)(2)....  Duplicated from part
 Provisions.                                                                              265.
Selected Part 265 Subpart I            Sec.   265.173(a)......  Sec.   262.15(a)(4)....  Duplicated from part
 Provisions.                                                                              265.
----------------------------------------------------------------------------------------------------------------

2. Conditions for Exemption for an SQG Accumulating Hazardous Waste (40 
CFR 262.16)
    As previously mentioned, the Agency is promulgating a new section 
40 CFR 262.16 titled, ``Conditions for exemption for a small quantity 
generator that accumulates hazardous waste.'' This reorganization moves 
Sec.  262.34(d) through (f) and (m) into Sec.  262.16. Specifically, 
the Agency is moving the bulk of Sec.  262.34(d) to Sec.  
262.16(b),\10\ Sec.  262.34(e) to Sec.  262.16(c), Sec.  262.34(f) to 
Sec.  262.16(d) and Sec.  262.34(m) to Sec.  262.16(e). EPA has also 
added subtitles and eliminated several cross-references to 40 CFR part 
265 in order to make the regulations easier to navigate.
---------------------------------------------------------------------------

    \10\ The portions of Sec.  262.34(d) that state what the 
generation limits are for this category of generator are moved to 
the definition of ``small quantity generator'' in Sec.  262.10.
---------------------------------------------------------------------------

    a. Addition of subtitles. EPA has added subtitles throughout Sec.  
262.16 to highlight to the reader the topic of each section or 
paragraph. Every subtitle is italicized after the regulatory citation. 
For example Sec.  262.16(b)(2) addresses ``Accumulation of hazardous 
waste in containers.''
    b. Incorporating 40 CFR part 265 subpart I, Sec.  265.201, and part 
265 subpart C into 40 CFR 262.16. EPA has integrated three portions of 
40 CFR part 265 into Sec.  262.16: Subpart I, Sec.  265.201 and subpart 
C. First, the regulations previously found at Sec.  262.34(d)(2) stated 
an SQG must comply with subpart I of part 265 except for Sec. Sec.  
265.176 and 265.178. Therefore, EPA has simply incorporated the text of 
the appropriate subpart I regulations at Sec.  262.16(b)(2). Second, 
the regulations previously found at Sec.  262.34(d)(3) stated that an 
SQG must comply with Sec.  265.201 in subpart J when using a tank. 
Thus, EPA has incorporated the text of Sec.  265.201--except for 
paragraph (a)--into Sec.  262.16(b)(3). Incorporation of paragraph (a) 
of Sec.  265.201 is not necessary because it describes what is already 
stated in Sec.  262.16--the conditions for exemption for an SQG 
accumulating hazardous waste in a tank for less than 180 days and 
accumulating no more than 6,000 kg on site at any time. Third, the 
regulations previously found at Sec.  262.34(d)(4) stated that an SQG 
must comply with subpart C of part 265. Therefore, EPA has incorporated 
the text of subpart C--Preparedness and Prevention--at Sec.  
262.16(b)(8) and (9).
    c. Other part 262 provisions for SQGs. In addition, part 262 
subpart L contains new standards for SQGs who episodically generate 
higher amounts of hazardous waste to maintain their designation as SQGs 
during these episodic events. Also, Sec.  262.35 is the landfill ban 
for liquids that applies to SQGs and LQGs.
    Table 4--Crosswalk of Previous Citations to New Citations for SQGs 
provides a summary of changes between the previous citations in the 
regulations and new citations for SQGs.

                       Table 4--Crosswalk of Previous Citations to New Citations for SQGs
----------------------------------------------------------------------------------------------------------------
              Regulation                  Previous citation           New citation               Comment
----------------------------------------------------------------------------------------------------------------
Definition of Small Quantity           Sec.   262.34(d).......  Sec.   260.10..........  Moved into new
 Generator.                                                                               definition of SQG.
Accumulation Time Limit..............  Sec.   262.34(d).......  Sec.   262.16(b).......  Moved.
Accumulation Limit...................  Sec.   262.34(d)(1)....  Sec.   262.16(b)(1)....  Moved.
Accumulation in Containers...........  Sec.   262.34(d)(2)      Sec.   262.16(b)(2)....  Duplicated from part
                                        (references part 265                              265.
                                        subpart I).
Accumulation in Tanks................  Sec.   262.34(d)(3)      Sec.   262.16(b)(3)....  Duplicated from part
                                        (references part 265                              265.
                                        subpart J).
Accumulation on Drip Pads............  .......................  Sec.   262.16(b)(4)      No previous regulatory
                                                                 references part 265      reference for SQGs
                                                                 subpart W.               using drip pads.
Accumulation in Containment Buildings  .......................  Sec.   262.16(b)(5)      No previous regulatory
                                                                 references part 265      reference for SQGs
                                                                 subpart DD.              using containment
                                                                                          buildings.
Marking of Tanks and Containers......  Sec.   262.34(d)(4)      Sec.   262.16(b)(6)....  Copied from Sec.
                                        (references Sec.                                  262.34 with some
                                        262.34(a)(2) and (3)).                            changes.
Preparedness and Prevention..........  Sec.   262.34(d)(4)      Sec.   262.16(b)(8) and  Duplicated from part
                                        (references part 265     (9).                     265 and moved from
                                        subpart C) and.                                   Sec.   262.34.
                                       Sec.   262.34(d)(5)....
Land Disposal Restrictions...........  Sec.   262.34(d)(4)      Sec.   262.16(b)(7)....  There is still a cross
                                        (references part 268).                            reference to part 268.
Transporting Over 200 Miles..........  Sec.   262.34(e).......  Sec.   262.16(c).......  Moved from Sec.
                                                                                          262.34.
Accumulation Time Limit Extension....  Sec.   262.34(f).......  Sec.   262.16(d).......  Moved from Sec.
                                                                                          262.34.
Rejected Loads.......................  Sec.   262.34(m).......  Sec.   262.16(e).......  Moved from Sec.
                                                                                          262.34.
Episodic Generation..................  N/A....................  Part 262 subpart L.....  New provision.
----------------------------------------------------------------------------------------------------------------


[[Page 85739]]

3. Conditions for Exemption for an LQG Accumulating Hazardous Waste (40 
CFR 262.17)
    As previously mentioned, the Agency is promulgating a new section 
40 CFR 262.17 titled, ``Conditions for exemption for a large quantity 
generator that accumulates hazardous waste.'' The Agency is moving 
Sec.  262.34(a),(b),(g) through (i) and (m) into Sec.  262.17. 
Specifically, the Agency is moving Sec.  262.34(a) to Sec.  262.17(a), 
moving Sec.  262.34(b) to Sec.  262.17(b), moving Sec.  262.34(g) to 
Sec.  262.17(c), moving Sec.  262.34(h) to Sec.  262.17(d), moving 
Sec.  262.34(i) to Sec.  262.17(e), and moving Sec.  262.34(m) to Sec.  
262.16(g). EPA has also deleted paragraphs (j) through (l), which deal 
with Performance Track, since the program is no longer in operation. 
EPA has also added subtitles and eliminated some cross-references to 
part 265 in order to make the regulations easier to navigate.
    a. Addition of subtitles. EPA is adding subtitles to Sec.  262.17 
to highlight to the reader the central concept addressed by each 
section or paragraph. Every subtitle is italicized after the regulatory 
citation. For example Sec.  262.17(a)(1) addresses ``Accumulation of 
hazardous waste in containers.''
    b. Incorporating 40 CFR part 265 subpart I into 40 CFR 262.17. EPA 
is incorporating the 40 CFR part 265 subpart I regulations, which were 
previously referenced at Sec.  262.34(a)(1)(i), into Sec.  
262.17(a)(1). EPA also considered incorporating the text of other 
subparts of part 265 that contain technical standards for LQGs into the 
new section Sec.  262.17 (i.e., part 265 subparts J, W, AA, BB, and 
CC), but ultimately decided not to incorporate the text of these 
subparts due to their length.
    c. Emergency planning and procedures regulations for LQGs in part 
265 subpart M. For generator preparedness and planning regulations, EPA 
removed the reference to part 265 subparts C and D for the 
preparedness, prevention, and emergency procedure regulations for LQGs 
and instead incorporated those regulations in part 262 with the other 
generator regulations. However, due to the length of these subparts, 
rather than copying the text of these subparts to Sec.  262.17, EPA 
created a new subpart M in part 262. EPA believes including these 
provisions in part 262, along with the rest of the generator 
regulations, will make the regulations easier to navigate.
    d. Other part 262 provisions for LQGs. In addition, Sec.  262.17(f) 
contains the newly promulgated standards for LQGs who accept and 
consolidate hazardous waste from VSQGs. Also, Sec.  262.35 includes the 
landfill ban for liquids that applies to SQGs and LQGs.
    Table 5--Crosswalk of Previous Citations to New Citations for LQGs 
provides a summary of changes between the previous citations and the 
new citations for LQGs.

                       Table 5--Crosswalk of Previous Citations to New Citations for LQGs
----------------------------------------------------------------------------------------------------------------
              Regulation                  Previous citation           New citation               Comment
----------------------------------------------------------------------------------------------------------------
Definition of Large Quantity           N/A....................  Sec.   260.10..........  New definition.
 Generator.
Accumulation Time Limit..............  Sec.   262.34(a).......  Sec.   262.17(a).......  Moved from Sec.
                                                                                          262.34.
Accumulation in Containers...........  Sec.   262.34(a)(1)(i)   Sec.   262.17(a)(1)      There is still a cross-
                                        references part 265      (Sec.   262.17(a)(1)     reference to part 265
                                        subparts I, AA, BB,      also references part     subparts AA, BB, and
                                        and CC.                  265 subparts AA, BB,     CC because of the
                                                                 CC).                     length of these
                                                                                          regulations.
Accumulation in Tanks................  Sec.   262.34(a)(1)(ii)  Sec.   262.17(a)(2)      There is still a cross-
                                        references part 265      references part 265      reference to part 265
                                        subparts J, AA, BB,      subparts J, AA, BB, CC.  subparts J, AA, BB, CC
                                        and CC.                                           because of the length
                                                                                          of these regulations.
Accumulation on Drip Pads............  Sec.                     Sec.   262.17(a)(3)      Accumulation time limit
                                        262.34(a)(1)(iii)        (Sec.   262.17(a)(3)     and recordkeeping
                                        (Sec.                    also references part     provisions move to
                                        262.34(a)(1)(iii) also   265 subpart W).          Sec.   262.17 and the
                                        references part 265                               extensive technical
                                        subpart W).                                       standards remain in
                                                                                          part 265.
Accumulation in Containment Buildings  Sec.   262.34(a)(1)(iv)  Sec.   262.17(a)(4)      Accumulation time
                                        (Sec.                    (Sec.   262.17(a)(4)     limit, labeling, and
                                        262.34(a)(1)(iv) also    also references part     recordkeeping
                                        references part 265      265 subpart DD).         provisions move to
                                        subpart DD).                                      Sec.   262.17 and the
                                                                                          extensive technical
                                                                                          standards remain in
                                                                                          part 265.
Marking and Labeling.................  Sec.   262.34(a)(2) and  Sec.   262.17(a)(5)....  Moved from Sec.
                                        (3).                                              262.34.
Preparedness, Prevention, and          Sec.   262.34(a)(4)      Sec.   262.17(a)(6)      Cross-references remain
 Emergency Procedures.                  references part 265      references part 262      but to a new subpart
                                        subparts C and D.        subpart M.               of the generator
                                                                                          regulations.
Personnel Training...................  Sec.   262.34(a)(4)....  Sec.   262.17(a)(7)....  Moved from Sec.
                                                                                          262.34.
Closure..............................  Sec.                     Sec.   262.17(a)(8)....  Duplicated from Sec.
                                        262.34(a)(1)(iv)B)                                Sec.   265.11 and 114
                                        references Sec.  Sec.                             with some revisions.
                                         265.11 and 265.114.
                                        Section 265.111
                                        references other
                                        sections in part 265.
Land Disposal Restrictions...........  Sec.   262.34(a)(4)      Sec.   262.17(a)(9)....  There is still a cross-
                                        references applicable                             reference to part 268.
                                        parts of part 268.
Extension of Accumulation Times......  Sec.   262.34(b).......  Sec.   262.17(b).......  Moved from Sec.
                                                                                          262.34.
Accumulation of F006.................  Sec.   262.34(g)         Sec.   262.17(c)         Moved from Sec.
                                        through (i).             through (e).             262.34.
Accepting waste from VSQGs under the   N/A....................  Sec.   262.17(f).......  New provision.
 control of the same person to
 consolidate before sending to TSDF.
Rejected Loads.......................  Sec.   262.34(m).......  Sec.   262.17(g).......  Moved from Sec.
                                                                                          262.34.
----------------------------------------------------------------------------------------------------------------


[[Page 85740]]

C. EPA Identification Number (40 CFR 262.12)

    In the interest in keeping the generator regulations in a logical 
order for a generator proceeding through the process for the first 
time, EPA has relocated the previous Sec.  262.12--EPA identification 
number--to Sec.  262.18. Section 262.12 has been reserved to prevent 
confusion by anyone referring to old guidance documents. EPA believes 
this move will improve the flow of the hazardous waste generator 
regulations as it places the section addressing EPA identification 
number after Sec.  262.13, which addresses how a generator determines 
its generator category. This sequence is appropriate because a 
hazardous waste generator must first determine its generator category 
in order to determine which regulations--including the requirement to 
obtain an EPA ID number--it must comply with. (For example, SQGs and 
LQGs must obtain an EPA identification number, but a VSQG does not).

D. What changed since proposal?

    In the final rule, EPA is not making any significant changes to the 
structure of the reorganization in the proposal. The majority of 
commenters supported the changes EPA proposed and stated the changes 
would make the regulations more clear to the majority of stakeholders.
    One minor change from the proposal that EPA is making in this final 
rule is to relocate the regulations on mixing solid waste and hazardous 
waste from each generator category section into Sec.  262.13 for the 
reasons discussed previously.

E. Guidance and Implementation

    As part of the implementation of this final rule, EPA is planning 
outreach to all stakeholders to discuss the reorganization in 
particular. The reorganization of the regulations will require 
adjustment by all parties that rely on EPA's generator regulations and 
EPA is committed to easing that adjustment through guidance and 
training.

VII. Detailed Discussion of Revisions to 40 CFR Part 260--Hazardous 
Waste Management System: General

A. Generator Category Definitions (40 CFR 260.10)

1. Introduction
    As part of the reorganization of the regulations and in an effort 
to make the generator regulations more accessible and easier to 
understand, EPA proposed to codify definitions for the three categories 
of hazardous waste generators (VSQG, SQG and LQG) and, in conjunction 
with those definitions, to also define ``acute hazardous waste'' and 
``non-acute hazardous waste'' for the purposes of use in the 
definitions (80 FR 57925-6).
    In the proposal, EPA noted that the term ``small quantity 
generator'' is codified in the regulations, but is outdated, whereas 
``conditionally exempt small quantity generator'' and ``large quantity 
generator'' have been used within the RCRA hazardous waste community 
for several decades, but their exact definitions have not been 
codified. The regulations differentiate among the categories by stating 
the quantity of hazardous waste generated in a calendar month in each 
instance, leading to cumbersome phrasing throughout the text.
    As a part of the codification of these definitions, EPA also 
proposed replacing ``conditionally exempt small quantity generator,'' 
the term for the smallest quantity category of generator, with ``very 
small quantity generator.'' \11\ EPA proposed this revision to remove 
confusion behind the phrase ``conditionally exempt.'' All three 
categories of generators are conditionally exempt from storage facility 
permit, interim status, and operating requirements, not just the 
smallest category. In addition, the new term is more descriptive of 
what the definition of the category actually represents. EPA notes this 
change is consistent with some states, such as Minnesota, that are 
already using the VSQG term. All regulations previously applicable to a 
CESQG apply to a VSQG.
---------------------------------------------------------------------------

    \11\ EPA is finalizing this revision and, therefore, will use 
this term to refer to the smallest generator category in this 
preamble discussion.
---------------------------------------------------------------------------

    VSQGs are generators that generate 100 kilograms or less of non-
acute hazardous waste and 1 kilogram or less of acute hazardous waste 
in a calendar month; SQGs are generators that generate greater than 100 
kilograms of non-acute hazardous waste but less than 1,000 kilograms of 
non-acute hazardous waste and 1 kilogram or less of acute hazardous 
waste in a calendar month; and LQGs are generators that generate 1,000 
kilograms or greater of non-acute hazardous waste and/or greater than 1 
kilogram of acute hazardous waste in a calendar month. However, 
generators often fail to consider residues from the cleanup of a spill 
of acute hazardous waste or do not count both the non-acute and acute 
hazardous waste they generate in a calendar month. Codifying 
definitions for these terms clarifies what categories of waste must be 
considered in determining generator category.
2. What is EPA finalizing?
    EPA is finalizing the generator category definitions as proposed to 
incorporate all the various categories of hazardous wastes--that is, 
acute hazardous waste, non-acute hazardous waste, and residues for the 
cleanup of a spill of acute hazardous wastes. Users of the generator 
regulations will benefit from the inclusion of the definitions of terms 
that are commonly used throughout the program. As a part of these 
revisions, EPA is also finalizing the definitions for ``acute hazardous 
waste'' and ``non-acute hazardous waste'' and the replacement of 
``conditionally exempt small quantity generator'' with ``very small 
quantity generator.''
    The generator category definitions are based solely on the amount 
of hazardous waste generated. While EPA acknowledges that accumulation 
limits may trigger different generator regulations, those accumulation 
limits do not affect a generator's generation category, which is based 
on how much hazardous waste is generated in a calendar month. 
Therefore, EPA is adding definitions for each of the generator 
categories to Sec.  260.10.
    A very small quantity generator is a generator who generates less 
than or equal to the following amounts in a calendar month: (1) 100 
kilograms (220 lbs) of non-acute hazardous waste; and (2) 1 kilogram 
(2.2 lbs) of acute hazardous waste listed in Sec.  261.31 or Sec.  
261.33(e); and (3) 100 kilograms (220 lbs) 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 
listed in Sec.  261.31 or Sec.  261.33(e).
    A small quantity generator is a generator who generates the 
following amounts in a calendar month: (1) Greater than 100 kilograms 
(220 lbs) but less than 1,000 kilograms (2,200 pounds) of non-acute 
hazardous waste; and (2) less than or equal to 1 kilogram (2.2 lbs) of 
acute hazardous wastes listed in Sec.  261.31 or Sec.  261.33(e); and 
(3) less than or equal to 100 kilograms (220 lbs) 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 
listed in Sec.  261.31 or Sec.  261.33(e).
    A large quantity generator is a generator who generates any of the 
following amounts in a calendar month: (1) Greater than or equal to 
1,000 kilograms (2,200 lbs) of non-acute hazardous waste; or (2) 
greater than 1 kilogram (2.2 lbs) of acute hazardous waste listed in 
Sec.  261.31 or Sec.  261.33(e); or (3) greater than 100 kilograms (220 
lbs)

[[Page 85741]]

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 listed in Sec.  261.31 or Sec.  261.33(e).
    In the comments addressing these revisions, several commenters 
suggested that the use of the word ``and'' between the types of waste 
being considered in the definitions of VSQG and SQG would mean that a 
generator must generate all three types of waste to qualify for the 
generator category. EPA disagrees, noting 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, 
as many of the commenters suggested, 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.
    EPA is also finalizing the proposal to replace ``conditionally 
exempt small quantity generator'' with ``very small quantity 
generator'' and is replacing all references in the regulations with 
this term. EPA will also be updating its materials and guidance to take 
into consideration the new term.
    In addition, EPA is adding definitions to Sec.  260.10 for the 
terms ``acute hazardous waste'' and ``non-acute hazardous waste.'' 
These terms are necessary because they are used in the definitions of 
the generator categories discussed above 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 Sec.  261.11(a)(2) and are therefore 
listed in Sec.  261.31 and assigned the hazard code of (H) or are 
listed in Sec.  261.33(e), also known as the RCRA P-list. In this 
rulemaking, any distinctions between acute and non-acute hazardous 
wastes are made only in the context of determining generator category. 
Otherwise, throughout the regulations, preamble, and guidance, the term 
``hazardous waste'' refers to both acute and non-acute hazardous waste.
3. What changed since proposal?
    EPA is finalizing the definitions for the generator categories as 
proposed with no changes. EPA is finalizing the replacement of 
``conditionally exempt small quantity generator'' with ``very small 
quantity generator'' with no changes. EPA is finalizing the definitions 
of acute and non-acute hazardous waste as proposed with no changes.
    EPA is making some changes to another area of the regulations as a 
result of some comments that showed that there is confusion about how 
the accumulation limits for VSQGs operate. EPA received multiple 
comments stating that the accumulation limits for VSQGs of 1,000 kg of 
hazardous waste, 1 kg of acute waste or 100 kg of residues from cleanup 
of a spill of acute hazardous waste (in Sec.  262.14) and for SQGs of 
6,000 kg of hazardous waste (in Sec.  262.16) should be part of the 
definitions of the generator categories in Sec.  260.10 and a factor in 
making a generator category determination.
    EPA maintains that although these 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.
---------------------------------------------------------------------------

    \12\ The Solid Waste Disposal Act as Amended by the Hazardous 
and Solid Waste Amendments of 1984, Section 3001(d).
---------------------------------------------------------------------------

    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 Sec.  261.5(f)(2) and (g)(2), 
which state the same principle. However, in order to make it more clear 
how these provisions operate, EPA has included the exact provisions 
that would apply to the excess waste to clarify this provision in Sec.  
262.14(a)(3) and (4). In addition, EPA is clarifying here that when the 
amount of waste that is accumulated exceeds the accumulation limit, all 
the accumulated waste at the VSQG must be managed under the 
requirements for an LQG, as EPA stated 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.''
4. Major Comments
    EPA received support from a variety of stakeholders on its proposal 
to promulgate definitions for the generator categories in the final 
rule. Many stakeholders agreed with EPA's assessment that officially 
defining the commonly-used terms for these generators in the 
regulations would be a helpful addition.
    Some commenters offered additional suggestions, such as revising 
the SQG threshold to be greater than 100 kg and less than or equal to 
1,000 kg to be easier to remember, to use ``less than'' (<) and 
``greater than'' (>) signs in the regulations, to change the primary 
unit of measurement in the regulations to pounds from kilograms and to 
rely on monthly averages for waste generation rather than actual 
monthly amounts. EPA is not making changes to the regulations in 
response to these comments. 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. Both these revisions would require administrative changes 
throughout the

[[Page 85742]]

hazardous waste generator system. In addition, EPA believes that the 
meaning of ``greater than'' and ``less than'' is clear without the use 
of the arithmetic symbols.
    Finally, EPA does not agree with the commenters who stated that it 
would be appropriate to allow a generator to average hazardous waste 
generation over several months and use the average to determine its 
generator category. Beyond the practical implementation concerns with 
this approach, and despite the commenters' argument that this approach 
would be consistent with the statute's intent, EPA has long interpreted 
the RCRA statement that a generator's category be based on the amount 
of waste generated ``during a calendar month'' at face value: The 
generator must know the quantity of hazardous waste it generates per 
month, not as an average of some sort, and be regulated 
accordingly.\13\ EPA rejected similar approaches in the March 24, 1986, 
final rule that established the current small quantity generator 
regulations and is not changing that interpretation as a part of this 
rulemaking.\14\
---------------------------------------------------------------------------

    \13\ The Solid Waste Disposal Act as Amended by the Hazardous 
and Solid Waste Amendments of 1984, Section 3001(d).
    \14\ 51 FR 10154, March 24, 1986.
---------------------------------------------------------------------------

    EPA does agree with the comment that any acute hazardous waste 
cleaned up in debris is counted as part of the ``residue or 
contaminated soil, water, or other debris resulting from the cleanup of 
a spill . . . of any acute hazardous waste'' and is not counted 
separately as acute hazardous waste.
    Regarding ``conditionally exempt small quantity generators,'' EPA 
received comments on the proposal arguing that the users of the term 
``conditionally exempt small quantity generator'' are familiar with its 
meaning and do not need a revision and that states will need to update 
materials and forms with the new term, VSQG. EPA has determined that 
although the users of the regulation are familiar with this term as it 
is used currently, there is real value in revising it so that those who 
will be introduced to the RCRA generator program in the future can make 
more sense of the terms. As stated previously, EPA will be revising its 
own materials, as necessary, to account for the new term and will work 
with states to phase in the changed terminology over time.
    Effect of the Reorganization: This section is not affected by the 
reorganization.

B. Generators That Generate Both Acute and Non-Acute Hazardous Waste in 
the Same Calendar Month (40 CFR 260.10)

1. Introduction
    As stated previously in the discussion of the definitions of the 
categories, when a generator is determining its generator category, it 
must consider three relevant types of hazardous waste: Hazardous waste 
(or ``non-acute hazardous waste,'' for purposes of this discussion), 
acute hazardous waste, and residues from the cleanup of a spill of 
acute hazardous waste. Historically, the RCRA hazardous waste 
regulations have not addressed situations involving combinations of 
wastes and Agency statements about this issue have been inconsistent. 
This situation led EPA to propose regulations to clarify a generator's 
category for a calendar month during which it generates any combination 
of non-acute hazardous waste, acute hazardous waste, and residues from 
the cleanup of a spill of acute hazardous waste.
    EPA discussed its history of statements on this topic in the 
proposed rule at 80 FR 57927, noting examples of contradictory EPA 
statements that a generator can have just one category per calendar 
month and EPA statements that a generator can manage acute hazardous 
waste as one category of generator and non-acute hazardous waste as a 
different category of generator in the same calendar month.
    EPA proposed a more practical approach that a generator can be in 
only one generator category in a calendar month and noted that many EPA 
Regions and states have taken this same approach in implementing the 
RCRA hazardous waste program.
    2. What is EPA finalizing?
    EPA is finalizing definitions of the generator categories that 
expressly state which generator category would apply to hazardous waste 
generators that generate a combination of non-acute hazardous waste, 
acute hazardous waste, and/or residues from the cleanup of spills of 
acute hazardous waste in a calendar month as discussed earlier in this 
section of the preamble.
    In conjunction with these changes, EPA is finalizing a new section 
Sec.  262.13 explaining how a generator determines its applicable 
generator category. This topic is fully discussed in section IX.C of 
this preamble.
    EPA's decision to finalize this approach is based partially on 
developing a practical solution to situations where a generator 
generates, for example, acute and non-acute hazardous waste in the same 
month. This approach is analogous to situations in which a generator 
that generates only non-acute hazardous wastes counts its various 
hazardous wastes. In those situations, a generator must consider the 
total amount of all its different kinds of non-acute hazardous waste, 
not the amount of each type of hazardous waste (e.g., type of waste 
identified by individual EPA hazardous waste number) separately. 
Therefore, a generator must similarly follow the same logic in 
considering the combination of acute hazardous wastes, non-acute 
hazardous wastes, and residues from the cleanup of a spill of acute 
hazardous waste generated in a calendar month when determining which 
category a generator belongs to.
    We note that many EPA Regions and states have taken this same 
approach in implementing the RCRA hazardous waste program and many of 
the state agencies that commented on the proposed rule stated they were 
in support of these changes to the regulations for the reasons EPA 
described in the preamble to the proposed rule, particularly because of 
the inconsistencies in the guidance.
    In practice, five waste generation scenarios exist with different 
combinations of acute hazardous waste, non-acute hazardous waste, and 
residues from the cleanup of spills of acute hazardous waste generated 
in a calendar month. These scenarios are summarized in Table 6--
Generator Categories Based on Quantity of Waste Generated.\15\
---------------------------------------------------------------------------

    \15\ This table is being finalized in the regulations as Table 1 
to Sec.  262.13.

[[Page 85743]]



                       Table 6--Generator Categories Based on Quantity of Waste Generated
----------------------------------------------------------------------------------------------------------------
                                                                 Quantity of residues
                                       Quantity of non-acute     from the cleanup of
 Quantity of acute  hazardous waste       hazardous waste           spilled acute
   generated in a  calendar month          generated in a          hazardous waste         Generator category
                                           calendar month           generated in a
                                                                    calendar month
----------------------------------------------------------------------------------------------------------------
> 1 kg..............................  Any amount.............  Any amount.............  LQG.
Any amount..........................  >= 1,000 kg............  Any amount.............  LQG.
Any amount..........................  Any amount.............  > 100 kg...............  LQG.
<= 1 kg.............................  > 100 kg and < 1,000 kg  <= 100 kg..............  SQG.
<= 1 kg.............................  <= 100 kg..............  <= 100 kg..............  VSQG.
----------------------------------------------------------------------------------------------------------------
Note: When calculating generator categories, the quantities of acute hazardous waste and non-acute hazardous
  waste are considered separately.

    In three of the five possible scenarios, the generator is an LQG; 
in one scenario, the generator is an SQG; and in one scenario, the 
generator is a VSQG.
    As the table indicates, in the first three scenarios, the generator 
is an LQG if it generates any of the following in a calendar month: 
More than 1 kilogram of acute hazardous waste, 1,000 kilograms or more 
of non-acute hazardous waste, or more than 100 kilograms of residues 
from the cleanup of a spill of acute hazardous waste. This is true 
regardless of the amount of waste generated in the other categories. 
This fact is made clear in the final regulatory definition of ``LQG'' 
by stating that a generator is an LQG if it generates ``any'' of the 
types of hazardous waste in the amounts listed and by using of the word 
``or'' between (1), (2), and (3).
    As an LQG, the generator must comply with the independent 
requirements for LQGs (specified in Sec.  262.10) and the conditions 
for exemption for LQGs (specified in Sec.  262.17), as well as any 
applicable conditions for exemption for SAAs at Sec.  262.15.
    In the fourth scenario, the generator is an SQG if, in a calendar 
month, it generates greater than 100 kilograms and less than 1,000 
kilograms of non-acute hazardous waste and also 1 kilogram or less of 
acute hazardous waste and 100 kilograms or less of residues from the 
cleanup of a spill of acute hazardous waste.\16\ The final regulatory 
text expresses this scenario by using the word ``and'' between (1), 
(2), and (3) in the definition of SQG.
---------------------------------------------------------------------------

    \16\ Amount of hazardous waste accumulated on site at any given 
time can also impact what regulations the SQG must comply with.
---------------------------------------------------------------------------

    As an SQG, the generator must comply with the independent 
requirements for SQGs (specified in Sec.  262.10) and the conditions 
for the exemption for SQGs (specified in Sec.  262.16), as well as any 
applicable conditions for exemption for SAAs at Sec.  262.15.
    Finally, in the fifth scenario, if a generator generates 1 kilogram 
or less of acute hazardous waste and 100 kilograms or less of non-acute 
hazardous waste and 100 kilograms or less of residue from the cleanup 
of a spill of acute hazardous waste, then the generator is a VSQG for 
that calendar month. The regulatory text expresses this scenario by 
using the word ``and'' between (1), (2), and (3) in the definition.
    As a VSQG, the generator must comply with the independent 
requirements for VSQGs (specified in Sec.  262.10) and the conditions 
for exemption for VSQGs (specified in Sec.  262.14).
3. What changed since proposal?
    EPA is finalizing the definitions for the generator categories as 
proposed and has not made revisions to how it expects generators to 
determine their generator category when they generate acute and non-
acute hazardous waste.
4. Major Comments
    Some commenters who opposed EPA's proposal that a generator should 
manage all its waste under the same generator category argued this 
would be a change to how they are currently operating and that it is 
burdensome to operate a whole generator site as an LQG because of the 
existence of LQG levels of acute hazardous waste.
    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 a generator that is operating in more than one 
category. 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, many states and EPA Regions commented 
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. In fact, these revisions are making the 
regulations consistent with how most programs are operating currently.
    Effect of the Reorganization: This section is not affected by the 
reorganization.

C. Definition of Central Accumulation Area (40 CFR 260.10)

1. Introduction
    In the proposal at 80 FR 57927, the Agency discussed defining the 
term ``central accumulation area'' (CAA) in Sec.  260.10. LQGs may 
accumulate hazardous waste on site without a permit or complying with 
the interim status standards for up to 90 days, provided they comply 
with the conditions of Sec.  262.17 and SQGs may do the same for up to 
180 days, provided they comply with the conditions of Sec.  262.16.\17\ 
Over the years, stakeholders have used different terms to refer to 
these on-site generator accumulation areas, including ``generator 
accumulation areas,'' ``less-than-90-day areas,'' and ``less-than-180-
day areas.'' In December 2008, EPA promulgated a definition of 
``central accumulation area'' in subpart K of part 262 to refer to 
these types of areas.\18\ EPA codified the term ``central accumulation 
area'' for the sake of convenience to distinguish these types of 
accumulation areas from satellite accumulation areas and laboratories, 
which are both subject to different regulations than central 
accumulation areas are in that rule. At the time, EPA promulgated the 
term in

[[Page 85744]]

Sec.  262.200 and indicated the definition only applied to part 262 
subpart K. Since then, the term has become more widely used and 
therefore EPA proposed to define the term ``central accumulation area'' 
in Sec.  260.10 to allow its use when referring to all generator 
accumulation areas, including those that are not operating under part 
262 subpart K.
---------------------------------------------------------------------------

    \17\ SQGs can also accumulate hazardous waste for up to 270 days 
if they ship the hazardous waste greater than 200 miles.
    \18\ ``Academic Labs Rule''; 73 FR 72912, December 1, 2008.
---------------------------------------------------------------------------

2. What is EPA finalizing?
    EPA 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 Sec.  262.16 (for small 
quantity generators) or Sec.  262.17 (for large quantity 
generators).\19\ The definition also states that a CAA at an eligible 
academic entity that chooses to be subject to part 262 subpart K must 
also comply with Sec.  262.211 when accumulating unwanted material and/
or hazardous waste.
---------------------------------------------------------------------------

    \19\ This definition includes citations to the newly promulgated 
sections of part 262 that are as part of the reorganization of the 
generator regulations. The predecessors to the small quantity 
generator regulations are at Sec.  262.34(d) through (f) and the 
predecessors to large quantity generator regulations are at Sec.  
262.34(a). For a full discussion of the reorganization, see section 
VI of the preamble.
---------------------------------------------------------------------------

    EPA emphasizes again that we are defining the term ``central 
accumulation area'' only as a matter of convenience. It is helpful for 
both the regulated community and the implementers to use a common term 
when referring to locations where generators accumulate hazardous waste 
other than satellite accumulation areas. Furthermore, the term is 
helpful for EPA to use when writing regulations, preamble, and 
guidance. The addition of the term does not establish any new 
regulatory standards or burden on generators.
    EPA also wants 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 are making this clear in the 
definition by stating that a ``central accumulation area'' means any 
on-site hazardous waste accumulation area with hazardous waste 
accumulating in units subject to either Sec.  262.16 or Sec.  262.17.
    Further, 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.
    As a result of making this change for all of part 262, we are also 
removing the definition of ``central accumulation area'' from part 262 
subpart K.
3. What changed since proposal?
    EPA is finalizing the definition for ``central accumulation area'' 
as proposed.
4. Major Comments
    EPA received comments on the proposed revisions that expressed 
concern that the word ``central'' might be misconstrued to mean a 
generator might be limited to maintaining just one CAA or that the CAA 
might have to be in the center of the generator's property. Commenters 
suggested other terms, such as ``generator accumulation area'' or 
``hazardous waste accumulation area.'' Although these terms would 
likely work equally well in many respects, ``central accumulation 
area'' is already commonly understood by many stakeholders. It has been 
in use for many years and has been in the regulations since the 
promulgation of the Academic Labs Rule. EPA has addressed the 
commenters concerns about the word ``central'' in the previous 
discussion and does not see a compelling reason to promulgate a term 
different than the one proposed.
    Effect of the Reorganization: This section is affected by the 
reorganization. The definition of ``central accumulation area'' 
references other regulatory citations that are part of the 
reorganization. The reorganization is discussed in section VI of this 
preamble.

VIII. Detailed Discussion of Revisions to 40 CFR Part 261--Requiring 
Biennial Reporting for Owners or Operators of Facilities That Recycle 
Hazardous Waste Without Storing It (40 CFR 261.6(c)(2))

A. Introduction

    As part of this rulemaking, EPA proposed to modify 40 CFR 
261.6(c)(2) and require owners or operators of facilities that recycle 
hazardous waste without storing the wastes, or facilities that receive 
and partially reclaim hazardous wastes prior to producing a commodity-
like material as described at Sec.  260.31, to comply with the biennial 
reporting requirements at 40 CFR 265.75. This modification was 
primarily a clarification of the existing rules because the Agency was 
concerned, based on an analysis of biennial reports, that not all of 
these type facilities were completing a biennial report when they 
should have been doing so. Recycling facilities and partial reclamation 
facilities receiving manifested hazardous waste by a hazardous waste 
transporter are similar to permitted TSDFs that also must complete a 
biennial report. Without biennial report information, the Agency and 
states may have an incomplete picture of which facilities recycle 
hazardous waste and the quantities of regulated hazardous wastes that 
are recycled, impeding EPA and the states' ability to provide adequate 
oversight for those facilities.
    The Agency believes that only a few recycling facilities will be 
affected by this change. Additionally, considering that most facilities 
already have sophisticated information systems to manage and track 
incoming shipments of hazardous waste, we believe the burden imposed on 
such facilities should be minimal if they are affected by this change.

B. What is EPA finalizing?

    The Agency is finalizing the proposal at Sec.  261.6(c)(2). Owners 
or operators of facilities that receive and partially reclaim hazardous 
wastes into a commodity like material, or recycle regulated hazardous 
waste (i.e., hazardous secondary materials not excluded from the 
definition of solid waste, or hazardous waste not exempt other 
recycling regulations) without storing it prior to recycling must 
comply with the biennial reporting requirements at 40 CFR 265.75. 
However, based on a few comments, the Agency wishes to make clear that 
this provision is only applicable to owners and operators of facilities 
that receive regulated hazardous waste from off site and/or do not 
store incoming hazardous waste prior to recycling. LQGs that generate 
and recycle their own regulated hazardous wastes continue to be 
regulated under Sec.  261.6(b).
    In an effort to ensure the universe of facilities affected by this 
new provision is aware of their obligation to complete and submit a 
biennial report, the Agency will highlight these changes in the 
Biennial Report Instructions and Forms and describe what facilities 
must do to complete and submit a report. Similarly, the Agency, as part 
of its outreach efforts for this new rule, will educate facilities 
about this new reporting requirement where appropriate.

C. Major Comments

    Most commenters supported this provision but a few commenters 
questioned the utility of this provision. As stated previously, the 
Agency is

[[Page 85745]]

aware of situations through the years where a partial reclamation 
facility or a recycling facility that does not store prior to recycling 
(and hence may not have a need for a RCRA storage permit) failed to 
complete and submit a required Biennial Report because they were 
receiving regulated hazardous waste. Without this information, the 
Agency and states have an incomplete understanding of hazardous waste 
recycling activities occurring nationally. This provision is meant to 
make such facilities aware of their biennial reporting obligations. In 
addition, such recycling facilities cannot accept regulated hazardous 
waste from generating facilities without the recycling facilities 
having a RCRA identification number.

IX. Detailed Discussion of Revisions to 40 CFR part 262--Standards 
Applicable to Generators of Hazardous Waste

A. Addition of Terms Used in this Part and Changes to Purpose, Scope, 
and Applicability (40 CFR 262.1 and 262.10)

    As previously discussed, one of the objectives of this rulemaking 
is to revise the hazardous waste generator regulations to make them 
more user-friendly and easily understood by both the regulated 
community and federal and state regulators. The hazardous waste 
generator regulations have long been located primarily in three 
different parts of the CFR (40 CFR parts 261, 262, and 265), making it 
sometimes difficult to determine what components of the regulations 
apply to different categories of hazardous waste generators.
    The reorganization is addressing some of these problems by reducing 
the need to refer to separate parts of the regulations through 
consolidation of the generator regulations into part 262 and by 
organizing the regulations based on a generator's category so 
generators can more easily determine which regulations apply to them. 
As described in section VI, EPA is finalizing three new sections in 
part 262 subpart A to set forth the conditions for exemption for each 
of the categories of generators that accumulate waste on site and one 
new section to set forth the conditions for exemption for SAAs. These 
new sections are Sec.  262.14 for VSQGs, Sec.  262.15 for SAAs, Sec.  
262.16 for SQGs, and Sec.  262.17 for exemption for LQGs.
    In concert with the reorganization of the generator conditions for 
exemption for on-site accumulation of hazardous waste, EPA is adding 
regulatory language to more clearly explain how the regulations work 
for generators and to lay out which provisions apply to each of the 
different categories of generators. EPA is making additional changes to 
otherwise clarify the framework of the hazardous waste generator 
program, including the addition of Sec.  262.1 and the revisions to 
Sec.  262.10. EPA is also adding an explicit prohibition on sending 
hazardous waste to a facility that is not authorized to accept it and 
is removing outdated and unnecessary provisions.
    Note that the changes to the regulatory text for Sec.  262.10 in 
this action take into account the revisions being made as a part of the 
``Hazardous Waste Export-Import Revisions'' Final Rule (Docket ID EPA-
HQ-RCRA-2015-0147; FRL-9947-74-OLEM), including replacing the reference 
to Sec.  262.12 in paragraph (d) with a reference to Sec.  262.18 and 
referring to subpart H of part 262 for provisions on imports and 
exports of hazardous waste instead of to subparts E and F, which are 
being removed and reserved.
1. Regulatory Framework for Independent Requirements and Conditional 
Exemptions for Generators (Sections 262.1, 262.10(a), and 262.10(g))
    a. Introduction. In developing the proposed rule, EPA determined 
that the RCRA regulations could be clarified regarding the distinction 
between the two types of generator requirements: (1) Those requirements 
that any generator generating hazardous waste must meet, which EPA is 
calling ``independent requirements,'' and (2) those conditional 
requirements that a generator who also accumulates waste must meet only 
if it wants the benefits of an exemption from RCRA storage facility 
permitting (or interim status) requirements, which EPA is calling 
``conditions for exemption.'' In order to make the regulations clearer 
regarding this distinction, EPA proposed to include definitions for 
these types of provisions in a new section of the regulations, to list 
which regulations for generators are independent requirements and which 
are conditions, and to clarify the regulatory difference between those 
types of requirements with regards to enforcement. These changes were 
proposed in a new Sec.  262.1 and in revisions to the existing Sec.  
262.10(a) and (g).
    b. What is EPA finalizing? EPA is finalizing the proposal to 
clearly define and reflect in the regulations the distinction between 
independent requirements and conditions for exemption that has existed, 
less explicitly, in the RCRA generator regulations since their initial 
implementation over 30 years ago. Because some commenters expressed 
continuing confusion over the distinction, a more extended discussion 
here will help to address and further clarify the meanings of the 
terms.
    The difference between independent requirements and conditions for 
exemption lies in the nature of each type of provision and in the 
consequences that may result if each is not met. An ``independent 
requirement'' in part 262 is the common type of regulatory requirement 
one usually thinks of, equivalent to a law that can be broken: It is 
the statement of a duty that must be met, or else a violation of RCRA 
or the regulations has occurred that is subject to a penalty. In other 
words, in the context of 40 CFR part 262, an ``independent 
requirement'' is an unconditional requirement or demand that is imposed 
upon the generator and with which the generator must comply. Because 
the sole purpose of the independent requirement is to achieve or 
prohibit the stated behavior, event, or standard, the only potential 
legal consequence to the generator from failing to meet an independent 
requirement, is some form of enforcement action for violating that 
particular requirement (e.g., a notice of violation, civil or criminal 
penalties, or injunctive relief under section 3008 of RCRA).
    Most important to the distinction between an ``independent 
requirement'' and a ``condition for exemption'' in part 262 is the fact 
that an independent requirement does not provide a mechanism for the 
generator to avoid having to comply with other requirements, such as 
the storage facility regulations in parts 264, 265 and 270.
    Also important to note is that the ``independent requirements'' of 
part 262 are not legally tied to the accumulation of hazardous waste. 
These part 262 independent requirements are applicable and enforceable, 
and must be met, by a generator of hazardous waste, whether or not the 
generator actually accumulates hazardous waste on site. In that sense, 
they are ``independent'' of the conditions for exemption from storage 
facility regulation, which are only applicable to generators who also 
accumulate hazardous waste. The independent requirements of part 262 
are therefore enforceable whether or not the generator has obtained, or 
is attempting to obtain, an exemption from the storage facility permit 
(or interim status) and operations requirements by meeting the 
conditions for that exemption in Sec. Sec.  262.14, 262.15, 262.16, or 
262.17.

[[Page 85746]]

    An example of such an ``independent requirement'' is Sec.  262.30, 
the pre-transport waste packaging requirement. This requirement is an 
unconditional demand, and failure to meet this requirement is subject 
to penalty or injunctive relief for violating Sec.  262.30. The 
requirement applies without regard to whether the generator accumulates 
waste on site; and it applies and is enforceable regardless of whether 
the generator has an exemption from storage facility permit and 
operations regulations.
    A condition for exemption, on the other hand, is a requirement that 
is contingent in nature: It is only necessary to meet the condition if 
the generator is using it to obtain an optional exemption from other 
requirements. A condition for exemption is not the common type of 
regulatory requirement that absolutely demands compliance under threat 
of penalty for violation of that requirement. Meeting a condition for 
exemption is required only if the generator wants an exemption, and 
then is ``required'' only in the sense that it is a necessary step to 
take in order to successfully obtain that optional exemption.
    The primary legal consequence of not complying with the condition 
for exemption is that the generator who accumulates waste on site can 
be charged with operating a non-exempt storage facility (unless it is 
meeting the conditions for exemption of a larger generator category). A 
generator operating a storage facility without any exemption is subject 
to, and potentially in violation of, many storage permit and operations 
requirements in parts 124, 264 through 268, and 270.
    As an example, Sec.  262.17 provides the conditions for the LQG 
exemption from storage facility regulation by stating that the LQG may 
accumulate hazardous waste on site without a permit or interim status, 
and without complying with storage facility operating requirements, 
provided it meets the conditions stated in that paragraph. The stated 
conditions for exemption in Sec.  262.17 are the necessary steps the 
LQG can take to obtain the exemption, if it chooses to do so.
    The distinction between part 262 independent requirements and part 
262 conditions for exemption is also important because violation of an 
independent requirement (as discussed previously in this section), such 
as an SQG failing to obtain an EPA identification number, can result in 
a notice of violation and enforcement action for that particular 
independent requirement only. In contrast, noncompliance with a 
condition for exemption, such as an LQG accumulating hazardous waste 
for more than 90 days may result in an entity losing its storage 
facility exemptions and becoming the operator of a non-exempt storage 
facility subject to the applicable requirements for storage facilities 
in parts 124, 264 through 268, and 270.
    The first part of the revisions EPA is finalizing contains the 
definitions for ``independent requirement'' and ``condition of 
exemption,'' so that the meaning of the terms will be clear as we have 
described them here. We use these terms throughout this preamble and 
the final regulations to distinguish between these two types of 
provisions for generators in part 262.
    EPA is also finalizing the changes to Sec.  262.10(a) with some 
revisions. Section 262.10(a) addresses the purpose, scope, and 
applicability of the hazardous waste generator regulations and contains 
both a list of which independent requirements apply to each generator 
category and also references to the later sections at which generators 
can find the full list of conditions for the applicable generator 
exemption. At the same time, Sec.  262.10(a) distinguishes which 
generator provisions are independent requirements and which are 
conditions for a generator exemption.
    The language in Sec.  262.10(a) also continues to explain the 
significance of the conditional exemption from storage facility permit, 
interim status, and operating requirements by stating specifically that 
if the conditions for exemption (those requirements in Sec.  262.14, 
262.15, 262.16, or 262.17) are not met, then the generator will be 
subject to the permitting or interim facility provisions in parts 124, 
264 through 268, 270, and section 3010 of RCRA.
    The reaction to the proposed changes was mixed among the states. 
Many states agreed that the explanations of conditions for exemption 
from permitting for generators accurately describes how the generator 
regulations have operated all along and stated that including this 
explanation in a straightforward way in the regulations would be a 
benefit and would make the RCRA program more transparent to the 
regulated community. Some states, however, expressed concern that the 
new regulations would limit their flexibility in how they enforce the 
RCRA regulations within their states and were opposed to the changes 
for that reason.
    Comments from industry stakeholders expressed great concern that 
the language EPA proposed represented a major shift in the Agency's 
enforcement paradigm to a draconian system of enforcement that would 
lead to an excessive number of violations and penalties. EPA disagrees 
with this comments and did not intend to create any sort of shift in 
EPA's enforcement actions. In response to these comments on the 
proposal, EPA has revised the final language to be clearer and to 
further explain the regulations.
    In this final rule, EPA reiterates that the distinction between 
independent requirements for all generators and conditions for 
exemption from the storage facility regulations that are available to 
generators who are accumulating hazardous waste on site has always 
existed in the RCRA program. It has been the Agency's longstanding 
position that generators that do not comply with a condition of a 
generator exemption fail to qualify for the exemption and (if they have 
not qualified for a larger generator exemption) they would be 
considered an operator of a non-exempt storage facility, in addition to 
being a generator. The changes to Sec.  262.10 in this rule do not 
constitute a substantive change to this long-standing position.
    Thus, these revisions to the regulations make this distinction more 
clear to all generators by listing the independent requirements and 
conditions for exemption applicable to all hazardous waste generators 
based on their generator category. The reason for this change is to 
reduce confusion for the regulated community in the context of 
compliance and any enforcement actions.
    Additionally, EPA is revising another part of Sec.  262.10 in its 
effort to make the framework of the regulations more clear. 
Historically Sec.  262.10(g) has stated that a generator is subject to 
the compliance requirements and penalties prescribed in section 3008 of 
[RCRA] if it does not comply with the requirements of part 262. 
However, this paragraph did not previously explain the distinction 
between the potential penalties for violating part 262 independent 
requirements and the consequences of not complying with the conditions 
for a generator exemption that are not subject to direct penalties. As 
a result, confusion has persisted over the legal consequences of 
failure to comply with the conditions for exemption and this confusion 
is reflected in the comments to our proposed rule.
    Therefore, EPA is revising Sec.  262.10(g) to make the legal 
framework clear to the regulated community. Section 262.10(g)(1) 
establishes that violation of an independent requirement, such as the 
hazardous waste determination

[[Page 85747]]

requirement of Sec.  262.11 or the EPA ID number requirement of Sec.  
262.18 is subject to penalty and injunctive relief under section 3008 
of RCRA. However, Sec.  262.10(g)(2) establishes, as explained 
throughout this portion of the preamble, that noncompliance with a 
condition for exemption is not subject to penalty and injunctive relief 
under section 3008 of RCRA as a violation of part 262. Rather, 
noncompliance with a condition for exemption by a generator 
accumulating waste on site results in the generator losing the storage 
facility exemption from parts 124, 264 through 268, and 270. Without an 
exemption, the generator is subject to the requirements of those parts 
of the storage facility regulations, the violation of which is subject 
to penalty and injunctive relief under section 3008 of RCRA.
    As a whole, EPA believes that these three sets of revisions--the 
new definitions in Sec.  262.1 and the revisions to Sec.  262.10(a) and 
(g)--will clarify EPA's longstanding position on how the RCRA generator 
program works and how the two types of requirements--independent 
requirements and conditions for exemption--interact and apply. As 
stated previously, EPA does not consider these revisions to the 
regulatory language as a change to the RCRA generator program because 
the regulations that were previously in Sec.  262.34 (now in Sec. Sec.  
262.14-17) and the provisions for VSQGs that were in Sec.  261.5 \20\ 
were always conditions for exemption from storage facility permit, 
interim status, and operating requirements and have always worked in 
the same way as we are explaining in this rule.
---------------------------------------------------------------------------

    \20\ Previously referred to as ``conditionally exempt small 
quantity generators.''
---------------------------------------------------------------------------

    As explained in the preamble to the proposal, the clarifications 
regarding the distinction between independent generator requirements, 
and the conditions for exemption from storage facility regulations for 
generators that accumulate hazardous waste on site, do not alter the 
way the generator regulatory scheme has operated over the last 30 
years. Similarly, the clarifications regarding the enforcement 
consequences of independent requirement violations and non-compliance 
with conditions for exemption do not signal a change from how most 
enforcement actions have been pursued when a generator has been found 
in noncompliance with a condition for exemption.
    For violations of independent generator requirements, federal and 
state regulatory agencies continue to retain full enforcement 
discretion authority to determine whether an enforcement action is 
warranted and if so, what enforcement tools, including notices of 
violation, civil and criminal complaints, penalties and injunctive 
relief, are appropriate to address any detected violations.
    Likewise, regulatory agencies retain the same discretion and 
authority regarding bringing various types of enforcement actions that 
they have always exercised in situations where non-compliance with 
conditions for exemptions have been detected. The clarifications in 
this rule do not mandate that regulatory agencies pursue enforcement 
actions where they previously would have exercised enforcement 
discretion in forgoing such actions. In addition, this final rule does 
not mandate charging and penalization of every violation of regulatory 
requirements that legally may result when a generator loses its 
exemption from the storage permit and operations requirements, when, 
for example, such action would be disproportionate to the seriousness 
of the generator's violations. EPA and states have always had, and 
continue to have, enforcement discretion to bring charges and seek 
penalties that accurately reflect the seriousness of the violations and 
their potential for harm.
    In addition, we do note that when implementing the regulations, 
enforcement agencies can elect to cite violations based on the failure 
to obtain a permit in part 270; or on a specific requirement in the 
storage facility operations regulations in parts 264 and 265 that is a 
companion to the out-of-compliance condition found in part 262; or 
both; and/or other violations found in the operations regulations that 
are applicable to the generator as a result of the non-compliance.
    c. What changed since proposal? In the definitions in Sec.  262.1, 
EPA made some changes to the language of the definition of ``condition 
for exemption'' to clarify the wording, to complete the list of 
sections in which conditions for exemption are found, and to correct 
the list of parts of 40 CFR from which generators can be exempted. EPA 
removed part 268 from that list. Although part 268 focuses on the 
technical requirements for land disposal, some parts of it apply to 
generators, notably parts of Sec.  268.7 and Sec.  268.9. EPA did not 
want to cause confusion by stating generators would be exempt from part 
268 provisions, because those particular part 268 provisions are 
designed specifically for generators and do apply.
    EPA has also made a few changes to the language in Sec.  262.10(a) 
since the proposal. Some commenters on the proposed rule suggested that 
we include a list of the independent requirements applicable to VSQGs 
in Sec.  262.10(a)(1) to make the regulations parallel for VSQGs, SQGs, 
and LQGs. VSQGs have very few independent requirements, but a VSQG does 
have to make a waste determination and determine its generator 
category. EPA agrees with this comment and, therefore, we have inserted 
a new Sec.  262.10(a)(1)(i) for VSQGs and listed these two independent 
requirements there.
    In addition to that change, we also revised the language in Sec.  
262.10(a)(2) to clarify the language and to correct the list of parts 
that would be applicable to generators that fail to meet the conditions 
for exemption by deleting part 263 for transporters of hazardous waste 
and adding the permit requirements in part 270. EPA realized the 
proposed language was not consistent and, in some places, included 
references that would not be accurate.
    EPA also made changes to the revisions in Sec.  262.10(g) in 
response to comments that this language was confusing and too 
``legalistic.'' It is important to EPA that the regulated community 
understand the concepts we are describing. Therefore, in Sec.  
262.10(g)(1), EPA revised the language to make it clear that the 
provision is focused on the independent requirements for generators 
that, by definition, appear in part 262 of the regulations and not 
requirements in other parts.
    EPA also made changes to Sec.  262.10(g)(2), which addresses 
noncompliance with conditions for exemption. Several comments stated 
that the language here was confusing. To address this concern, EPA 
revised the language in an attempt to clarify it for the average 
generator. The language now explains what might happen in the case of 
noncompliance in a more narrative fashion, stating what the 
consequences are of not qualifying for the exemption from the 
permitting regulations, as EPA has already described in this preamble. 
Finally, EPA revised the list of parts that apply to a generator that 
does not qualify for the exemption from the storage facility 
regulations, in order to be consistent with other places in the rule.
    Effect of the Reorganization: Sections 262.1 and 262.10(g) are not 
affected by the reorganization. Section 262.10(a) is affected by the 
reorganization--the section now describes the structure of much of part 
262. The reorganization is discussed in section VI of this preamble.

[[Page 85748]]

2. Generators Shall Not Transport to a Non-Designated Facility
    a. Introduction. As the Agency has stated numerous times in the 
development and implementation of the RCRA hazardous waste program, a 
fundamental aspect of the program is the responsibility placed on the 
generator of hazardous waste to ensure its hazardous waste is properly 
managed from cradle to grave. Numerous existing regulatory provisions 
are designed to ensure that generators send their hazardous waste only 
to authorized TSDFs or other authorized facilities. See for example, 
Sec. Sec.  262.18(c),\21\ 262.20(b), 262.40(a). However, from 
experience with implementing the program, the Agency has found 
situations where a generator failed to send its hazardous waste to a 
facility authorized to receive that waste, thus creating both 
regulatory and potential hazardous waste mismanagement problems. The 
Agency believes that a statement expressly prohibiting a generator from 
sending hazardous waste to a facility not authorized to accept it is 
necessary to ensure that generators understand they have this 
obligation. Therefore, the Agency proposed adding such a new 
independent requirement at Sec.  262.10(a)(3).
---------------------------------------------------------------------------

    \21\ Section 262.18(c) has been moved as part of the 
reorganization from Sec.  262.12(c).
---------------------------------------------------------------------------

    b. What is EPA finalizing? EPA is finalizing this provision as 
proposed and is promulgating Sec.  262.10(a)(3), which clearly and 
explicitly states that a generator cannot offer or otherwise cause its 
waste to be sent to a facility that is not authorized to accept it.
    This provision is being added to the regulatory framework and not 
replacing Sec. Sec.  262.18(c), 262.20(b), 262.40(a), as those 
provisions are aimed at other aspects of the generator program (for 
example, ensuring manifests are properly completed).
    EPA received general support from most of the commenters on this 
provision, with one commenter stating that the provision was 
unnecessary. EPA believes that the provision is necessary, as it is a 
cornerstone of the generator program and should be explicitly stated in 
the regulations to ensure that all generators are aware of it.
    Effect of the Reorganization: This section is not affected by the 
reorganization.
3. Deletion of Sec.  262.10(c)
    a. Introduction. EPA proposed deleting and reserving Sec.  
262.10(c) of the hazardous waste regulations because it is outdated, 
confusing and unnecessary. The provision describes the requirements for 
a generator who treats, stores, or disposes of hazardous waste on site 
and includes a list of provisions these generators must comply with.
    When Sec.  262.10(c) was initially promulgated on February 26, 
1980, the hazardous waste generator regulations distinguished between 
the generators that sent hazardous waste to be managed off site and 
those that managed their hazardous waste on site. Generators that sent 
hazardous waste off site could manage it for 90 days in an accumulation 
area, but generators that managed hazardous waste on site were expected 
to manage it under their permits or under interim status regulations. 
The purpose of Sec.  262.10(c) was to provide the list of requirements 
that generators managing hazardous waste were required to follow in 
addition to those permits or interim status requirements.
    This distinction meant that the two types of generators had very 
different standards for the areas where newly generated hazardous waste 
was managed. Significantly, generators sending hazardous waste off site 
could easily make physical changes to their accumulation areas, whereas 
a similar generator managing hazardous waste on site under a permit had 
to go through the permit modification process to make the same kind of 
changes. EPA effectively eliminated the distinctions by revising these 
regulations (45 FR 76624, November 19, 1980 and 47 FR 1248, January 11, 
1982). The final rule promulgated in January 11, 1982, made a change to 
Sec.  262.10(c) that added the generator accumulation provisions at 
Sec.  262.34 to the list of provisions that apply to a generator that 
treats, stores, or disposes of hazardous waste on site. Currently, the 
Agency does not make this distinction between generators that send 
waste for treatment off site and those that manage waste on site. This 
revision is therefore outdated and, thus, should be deleted and 
reserved.
    b. What is EPA finalizing? EPA received general support from most 
commenters who addressed this issue and is finalizing the deletion of 
the paragraph. Section 262.10(c) will be reserved to avoid reusing that 
specific paragraph.
    Effect of the Reorganization: This deletion is not affected by the 
reorganization.
4. Deletion of Reference to Laboratory XL Project Regulations (40 CFR 
262.10(j) and Part 262 Subpart J)
    The Laboratory XL Project was created for Boston College, the 
University of Massachusetts, and the University of Vermont, and was 
finalized in the Federal Register on September 28, 1999 (64 FR 53292). 
Originally, the program was to expire on September 30, 2003. But on 
June 21, 2006, EPA extended the program and the new expiration date was 
changed to April 15, 2009 (71 FR 35550). Since the program has now 
expired, EPA is deleting paragraph (j) from Sec.  262.10, as well as 
part 262 subpart J and reserving them.
    Effect of the Reorganization: This deletion is not affected by the 
reorganization.

B. Waste Determinations (40 CFR 262.11)

1. Introduction
    Under RCRA, generators are the first critical link in ensuring safe 
management of hazardous waste. They are the cradle in the cradle-to-
grave RCRA system. The first and most important step in the regulations 
is for generators of solid waste (as defined at Sec.  261.2) to 
determine whether their waste is also a hazardous waste by using Sec.  
262.11. If a generator fails to identify a hazardous waste as 
hazardous, it will not start the waste down the hazardous waste 
management path and the critical gateway to the RCRA Subtitle C safe 
management system will be missed. Such mismanagement of hazardous waste 
may result in damage to human health and/or the environment.
    Thus, the success of the hazardous waste regulatory program 
depends, to a great extent, on generators making accurate hazardous 
waste determinations. However, as described in the proposal, EPA has 
observed through various efforts that generators struggle with this 
crucial first step with the estimated rates of non-compliance ranging 
from 20 to 30 percent.\22\ With an estimated generator universe in the 
hundreds of thousands, the potential for the mismanagement of hazardous 
waste and the impact on public health and the environment is 
significant. Therefore, given the importance of this regulatory 
provision, the Agency proposed several changes to the waste 
determination regulations at Sec.  262.11 in an effort to clarify them, 
and thereby foster

[[Page 85749]]

improved compliance by generators. These proposed changes were intended 
primarily to codify Agency interpretations that have been developed and 
implemented over the last 35 years in Federal Register notices, policy, 
letters, and other guidance.
---------------------------------------------------------------------------

    \22\ Hazardous Waste Determination Program Evaluation, IEc, 
April 2013. http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf; and Summary of Waste Determination Meetings with 
VT and NH State Officials on September 27-28, 2010; and ``10 Most 
Common Hazardous Waste (RCRA) Violations in Georgia: 40 CFR 262.11 
``Hazardous Waste Determination,'' Georgia Department of Natural 
Resources https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/guidehwdet.pdf. For more citations, see the 
proposed Generator Improvements Rule, page 57936-57937, September 
25, 2015.
---------------------------------------------------------------------------

    Specifically, the proposed rule included revisions to the Sec.  
262.11 regulations that would (1) clarify that hazardous waste 
determinations must be accurate; (2) confirm 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 in such a way as to change the hazardous waste determination; 
(3) revise the language on how to make a determination for listed 
hazardous waste in Sec.  262.11 to explain more fully how generators 
can make this kind of determination using generator knowledge; (4) 
explain more completely in the regulations at Sec.  262.11 how a 
generator should evaluate its waste to determine whether the waste may 
exhibit one of the hazardous characteristics; (5) move the independent 
recordkeeping and retention requirements for hazardous waste 
determinations currently found at Sec.  262.40(c) into Sec.  262.11 to 
integrate this provision more directly into the hazardous waste 
determination regulations; (6) revise the hazardous waste determination 
recordkeeping regulations to require that SQGs and LQGs maintain 
records of any test results, waste analyses, or other determinations 
made in accordance with Sec.  262.11 for at least three years, 
including waste determinations where a solid waste (as defined in Sec.  
261.2) is found not to be a RCRA hazardous waste (as defined in Sec.  
261.3); (7) revise the hazardous waste determination regulations by 
copying Sec.  262.40(d) into Sec.  262.11 to address situations where 
an enforcement action has been initiated and the period of record 
retention (e.g., three years from when the record was generated) must 
be extended automatically during the course of any unresolved 
enforcement action regarding the regulated activity or as requested by 
the Administrator, and (8) require generators identify all applicable 
EPA hazardous waste numbers (EPA hazardous waste codes) in subparts C 
and D of part 261 if the solid waste is determined to be a hazardous 
waste.
    The Agency also requested comment regarding how best to emphasize 
the importance of accurate hazardous waste determinations and the 
length of time records must be maintained. Finally, EPA also asked for 
comment on the utility of developing an electronic decision making tool 
for hazardous waste determinations.
2. What is EPA finalizing?
    The Agency is finalizing the following changes to Sec.  262.11:
    (1) Requiring that a solid and hazardous waste determination must 
be accurate, and expanding on why this determination is important; 
i.e., to ensure the proper management of the waste within the RCRA 
framework;
    (2) Requiring 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, 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 such that its waste classification may have changed;
    (3) Incorporating regulatory language that elaborates on how to 
make a hazardous waste determination for listed and characteristic 
hazardous waste;
    (4) Referencing the applicable RCRA regulations for identifying 
possible exclusions or exemptions for the hazardous waste at in Sec.  
262.11(e).
    (5) Moving the independent recordkeeping and retention requirements 
for hazardous waste determinations currently found at Sec.  262.40(c) 
into Sec.  262.11(f), with clarifications on what records must be kept; 
and
    (6) Requiring SQGs and LQGs to identify the applicable RCRA waste 
codes for the hazardous waste they have generated, but clarifying that 
such identification must occur no later than immediately prior to 
shipping hazardous waste off site to a RCRA permitted treatment, 
storage and disposal facility in accordance with the requirements of 
Sec.  262.32.
    The Agency is not finalizing the proposed requirement that SQGs and 
LQGs maintain records of their non-hazardous waste determinations. Nor 
is the EPA finalizing a requirement for SQGs and LQGs to maintain 
records of their hazardous waste determinations until the generator 
closes its site.
    Finally, EPA requested feedback regarding the feasibility and 
effectiveness of developing electronic decision-making tools for 
hazardous waste determinations and whether such tools would be a 
helpful to generators. Based on comments, the Agency is not finalizing 
any provision related to electronic decision-making tools for hazardous 
waste determinations but will continue to explore feasibility in the 
future. The Agency took comment on a number of electronic tools and 
reporting options and has organized our discussions of all of these 
options in section XIII of this preamble. See this section for a more 
in-depth discussion regarding electronic waste determination decision 
tools and other electronic options.
    a. Solid and hazardous waste determinations must be accurate. The 
Agency is finalizing the proposed requirement for generators to make 
accurate hazardous waste determinations. However, we are also modifying 
the proposed regulatory text in response to comments 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.
    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.'' \23\
---------------------------------------------------------------------------

    \23\ Comment by individual consumer. Docket number: EPA-HQ-RCRA-
2012-0121-0160
---------------------------------------------------------------------------

    Some commenters argued 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 Sec.  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.

[[Page 85750]]

    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 Sec.  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 
Sec.  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 Sec.  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.
    One commenter mentioned that the term `accurate' also does not 
provide any guidance about how intensive or deep a generator's research 
must be to meet the intended standard. This commenter goes on to 
discuss that a five-minute review of a Safety Data Sheet (SDS) and 
product brochure may well be `accurate' but much too superficial to 
ensure the generator has considered all potentially hazardous 
attributes of the waste. The Agency disagrees with this commenter. 
Waste determinations are site specific and each generator must evaluate 
the amount of time and effort needed to make an accurate waste 
determination. In some cases, a review of an SDS may suffice because 
the identification of the constituents and their concentration ranges 
may make it clear whether the chemical is or is not a hazardous waste 
upon disposal. Conversely, the Agency can see a number of situations 
where a generator must conduct analysis and testing to meet this 
requirement. Regardless of the effort invested in making a hazardous 
waste determination, the Agency's intent is that the results of the 
determination be accurate and bring about the proper management of the 
waste under the RCRA regulatory framework.
    b. A hazardous waste determination must be made at the point of 
generation before any dilution, mixing, or other alteration of the 
waste occurs. As described in the proposed rule, 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 was first generated. By requiring that the 
hazardous waste determination be made at the point of generation in 
Sec.  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 Sec.  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.\24\ The 
Agency is finalizing this requirement as proposed.
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    \24\ See 45 FR 33095-96, May 19, 1980 and 55 FR 11830, March 29, 
1990.
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    Many commenters expressed concern with EPA's proposed requirement 
that hazardous waste determinations must be made at the point of 
generation. For many generators, the Agency believes making a hazardous 
waste determination on new wastes should be an infrequent evaluation. 
An analysis of 2013 biennial report data identified 46 percent of LQGs 
generated between one and five waste streams. Similarly, this same 
analysis found that overall LQGs generated a median of 6 hazardous 
waste streams and a mean of 13 hazardous waste streams.\25\ Many of 
these generators continue to generate the same wastes over long time 
periods, and absent changes in the waste, the generator may continue to 
rely on an initial determination of the waste's RCRA status 
(particularly for listed hazardous wastes). Of course, should a 
generator in this scenario change either its production feedstocks or 
production process, or know of any other factors that may result in 
changes to the waste's origin or properties, the generator may have a 
new waste requiring a new waste determination.
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    \25\ See ``Regulatory Impact Assessment of the Potential Costs, 
Benefits, and Other Impacts of the Final Hazardous Waste Generator 
Improvements Rule.'' A copy of the analysis is available in the 
docket for this action.
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    Based on EPA's 2013 Hazardous Waste Determination Program 
Evaluation \26\ and stakeholder discussions, the Agency has determined 
that most generators make a hazardous waste determination by using 
knowledge of their processes, including feedstocks and possible side 
reactions, and other materials used at the facility to evaluate whether 
waste is hazardous or not. In order to properly classify and manage 
waste, generators must make a hazardous waste determination when the 
waste is first generated. Most generators should have sufficient 
knowledge of their waste to determine whether the waste is hazardous 
and why it is hazardous i.e., whether the waste meets one of the 
listing descriptions in subpart D of part 261 \27\ or whether the waste 
may exhibit one or more hazardous waste characteristics described in 
subpart C of part 261, and to manage the hazardous waste according to 
its hazards, under RCRA. When generator knowledge is inconclusive or 
uncertain, testing may be appropriate.
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    \26\ Hazardous Waste Determination Program Evaluation, IEc, 
April 2013. http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.
    \27\ Note: If the waste is listed, a generator may file a 
delisting petition under 40 CFR 260.20 and 260.22 to EPA or the 
authorized state to demonstrate that the waste from this particular 
site or operation is not a hazardous waste.
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    We have and continue to recognize 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

[[Page 85751]]

hazardous waste if the hazardous waste determination is confirmed by 
the test.\28\
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    \28\ See letter from Lowrance to Axtell, April 21, 1989, RCRA 
Online 11424.
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    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.
    Both the retail and 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 both of 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.
    A few commenters disagreed with the proposal to add language 
clarifying that waste determinations must be made at the ``point of 
generation,'' arguing that the Agency has issued waste determinations 
in the past contradicting this policy. The Agency disagrees with this 
commenter. 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.
    However, in response to comments, the Agency is stating that 
existing guidance and memoranda addressing specific situations relating 
to the point of generation are not superseded by this final rule. 
Specific examples of such situations are discussed in the Agency's 
Response to Comment document found in the docket to this rule.
    As part of finalizing Sec.  262.11(a), the Agency is also 
finalizing the language that explicitly clarifies the waste 
determination policies identified and 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.

    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.\29\ 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.
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    \29\ See for example, discussion at 80 FR 57939 and 55 FR 39410, 
September 27, 1990.
---------------------------------------------------------------------------

    c. Use of generator knowledge and testing in making a hazardous 
waste determination. At Sec.  262.11(c) and at Sec.  262.11(d)(2), the 
Agency, in its proposed rule, elaborated on the existing regulatory 
text associated with the use of generator knowledge to determine 
whether wastes are either listed hazardous wastes and/or 
characteristically hazardous waste, respectively. As part of this 
proposed change, the Agency provided examples of the types of knowledge 
and information deemed acceptable that generators may use. The types of 
information identified in Sec.  262.11(c) and Sec.  262.11(d)(2) that 
generators could use as acceptable knowledge in determining if their 
wastes are listed wastes, or characteristically hazardous, were not all 
inclusive, or limited to those examples. However, this may not have 
been clear in the proposal. The Agency, therefore, is finalizing Sec.  
262.11(c) and now Sec.  262.11(d)(1) with slight changes to clarify 
that the examples identified in the regulatory text are not limited to 
those kinds of information.\30\
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    \30\ Note: As stated below, the Agency reversed Sec.  
262.11(d)(1) and (d)(2) in the final rule, with paragraph (d)(1) 
emphasizing the types of knowledge a generator could use in making a 
hazardous waste determination and paragraph (d)(2) addressing test 
methods.

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[[Page 85752]]

    Similarly, in the proposal at Sec.  262.11(d)(1), the Agency 
elaborated on the test methods generators may use to determine whether 
their wastes are hazardous. Included were test methods set forth in 
subpart C of part 261 or an equivalent method approved by the 
Administrator under Sec.  260.21. The Agency, in its proposal, also 
stated under Sec.  262.11(d)(2) that where a test method is specified 
in the regulation, the results of the regulatory test, when properly 
performed, are ``definitive'' for determining the regulatory status of 
the waste.
    The Agency received numerous comments on this latter provision, 
with commenters expressing concerns that by stating a regulatory test, 
when properly performed, is ``definitive'' in determining a waste's 
regulatory status, EPA was also implying that use of generator 
knowledge was not definitive and less trustworthy as a means to make a 
hazardous waste determination. Several commenters went so far as to 
suggest the Agency, for all practical purposes, was eliminating the 
ability to use process knowledge for waste determinations and was 
requiring actual testing.
    These commenters misinterpreted the proposed change. The Agency 
reaffirms that generators may use knowledge of their processes and of 
the materials used in the process, among other types of information (as 
described in the proposal preamble), to make a hazardous waste 
determination. In fact, generators can only use knowledge of their 
process and knowledge of the materials used in the production process 
to determine whether their waste meets any of the F-, K-, P- and U-
waste listings.
    Further, in determining whether wastes may exhibit a hazardous 
characteristic, EPA expects that most generators will use generator 
knowledge to make waste determinations, and this is appropriate 
provided that such knowledge results in an accurate determination. 
Where generator knowledge is inconclusive or uncertain, testing using 
the test methods described in part 261 subpart C, or equivalent methods 
approved by the Agency in Sec.  260.21, will resolve any uncertainty. 
The results of such testing, when properly performed, are definitive 
because these tests are part of the regulatory definition for those 
parts of the hazardous characteristics that include them. The Agency is 
reversing the order of the proposed Sec.  262.11(d)(1) and (d)(2) in 
the final regulations to clarify the roles of knowledge and testing in 
making hazardous waste determinations.
    One commenter mentioned that while EPA has adopted the terminology 
``acceptable knowledge'' in the rule from its waste analysis guidance, 
we have not identified what is unacceptable knowledge and we may be 
adding confusion to the process. While the Agency believes the term 
``acceptable knowledge'' is clear, and has used it in discussing this 
topic in older Federal Register notices, and also included examples of 
those types of information that may assist a generator in making an 
accurate hazardous waste determination in the proposal preamble, the 
Agency also stated above that the examples provided do not comprise an 
inclusive list, but rather are examples. As to what the Agency would 
view as ``unacceptable,'' guessing is not acceptable. 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 
previously, 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.\31\
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    \31\ 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.
---------------------------------------------------------------------------

    One commenter also suggested that the word ``applicable'' be 
inserted before ``methods'' in proposed Sec.  262.11(d)(1) to read: 
``The person must test the waste according to the applicable methods 
set forth in Subpart C of Sec.  Part 261 or according to an equivalent 
method approved by the administrator under Sec.  260.21 and in 
accordance with the following . . . (emphasis added)''. The commenter 
argued that 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. The Agency agrees with this clarification and has modified 
the regulatory text accordingly.
    d. Possible exclusions and restrictions for the waste at Sec.  
262.11(e). The Agency is moving the language that was proposed at Sec.  
262.11(g) to Sec.  262.11(e) in the final rule. This language states 
that if the waste is determined to be hazardous, the generator must 
refer to the applicable RCRA regulations of this chapter to determine 
whether other possible exclusions or restrictions apply to the 
management of the specific waste. The Agency believes, in retrospect, 
that this paragraph belongs more appropriately immediately after the 
generator has determined whether it has generated either a listed and/
or characteristically hazardous waste. As a result of this change, 
subsequent paragraphs in this section shift in numbering as well.
    e. Recordkeeping Requirements at Sec.  262.11(f). The Agency is 
finalizing, with clarifications, a number of revisions to the waste 
determination recordkeeping requirements proposed at Sec.  262.11(e), 
but being finalized at Sec.  262.11(f). First, we are finalizing the 
move of the waste determination recordkeeping requirements previously 
found in Sec.  262.40(c), into Sec.  262.11, in order to highlight the 
recordkeeping requirement for hazardous waste determinations. The 
Agency is also providing a reference in Sec.  262.40(c) to the new 
regulatory location of the hazardous waste determination recordkeeping 
requirement in Sec.  262.11(f) instead of deleting and reserving Sec.  
262.40(c). EPA is finalizing this change as a conforming change with 
the reorganization to prevent generators that are looking for 
recordkeeping requirements in Sec.  262.40 to miss the other 
recordkeeping requirement now located in Sec.  262.11.
    Second, we are finalizing the proposed expanded language to better 
articulate the types of waste determination information that must be 
maintained as records of hazardous waste determinations made using

[[Page 85753]]

generator knowledge and/or testing. This language includes a list of 
specific types of records that might be used when making a waste 
determination by either method. To further clarify, the Agency is 
incorporating into the final rule language the term ``other 
determinations,'' which was previously in the text in Sec.  262.40(c). 
This term captures the concept that records must be kept for hazardous 
waste determinations made by any method.
    While the Agency is aware that some states interpret the words 
``other determinations'' in the existing Sec.  262.40(c) recordkeeping 
requirement to include non-hazardous waste determinations, as discussed 
in the proposed rule, EPA has not held, and continues to not hold, the 
same interpretation. By adding this language back into the final 
hazardous waste determination recordkeeping regulatory section rather 
than deleting it, as proposed, it is possible that those states will 
maintain their more stringent interpretation.
    As discussed in more detail later on, EPA 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.
    Third, the Agency is finalizing the time period as proposed: Waste 
determination records must be maintained for at least three years. EPA 
asked for comment on extending the time period to the life of the 
facility and commenters were practically unanimous in opposing the 
extension, responding with various reasons why extending this time 
period is not practical, including the existence of a statute of 
limitations after which no enforcement actions can be brought against a 
generator, and the fact that once a production process changes and a 
particular waste is no longer generated, those records are not needed 
for the life of the facility.
    EPA proposed to change when the three-year clock would start for 
this recordkeeping requirement to the date last generated. However, we 
are reverting to the original Sec.  262.40(c) language that states that 
three years is measured from the date that the waste was last sent to 
on-site or off-site treatment, storage, or disposal. The few comments 
on this proposed change referred to previously existing regulatory 
language as if the commenters did not realize we had proposed a change. 
The Agency has reconsidered this issue and concludes that generators 
will have an easier time maintaining records of when their waste was 
sent for disposal rather than generated. Moreover, maintaining the 
status quo in the original regulations eliminates the need for 
generators to change operating procedures.
    Fourth, the Agency is deleting the sentence regarding the co-
mingling of wastes proposed at Sec.  262.11(e). With the Agency 
addressing the mixing of solid with hazardous wastes by generators at 
Sec.  262.13(f), this statement in Sec.  262.11 is not needed.
    Fifth, a few commenters suggested that types of information not be 
limited to those cited in the proposed rule at Sec.  262.11(e). The 
Agency believes that the language in Sec.  262.11(e) is very broad 
intentionally to capture any type of information used to support a 
hazardous waste determination. Thus, we believe that the examples 
provided are not all-inclusive and this is already implicit in the 
regulatory text and we have not made a change.
    Finally, the Agency is reaffirming in preamble that inspectors have 
the existing authority to require a generator to perform a waste 
determination during an inspection to support their finding that the 
waste of concern is not a hazardous waste if no documentation exists.
    f. SQGs and LQGs must identify the RCRA waste codes associated with 
the hazardous waste. The Agency is finalizing at Sec.  262.11(g), the 
requirement proposed at Sec.  262.11(f) that all applicable EPA 
hazardous waste numbers (EPA hazardous waste codes) be identified, but 
with two clarifications: (1) This requirement only applies to SQGs and 
LQGs; and (2) the codes do not need to be marked on the container until 
the hazardous waste is being prepared for shipment off site (i.e. pre-
transport requirements). However, SQGs and LQGs may have waste 
management practices in place and choose to identify the RCRA waste 
codes sooner than prior to shipment.
    EPA is limiting this requirement in the final rule to SQGs and LQGs 
because VSQGs have no requirement to label or mark their hazardous 
waste. Without this labeling or marking requirement, the Agency 
believes it is unnecessary for the VSQG to identify all applicable 
hazardous waste codes.
    Currently, there is no direct or explicit regulatory linkage 
between the hazardous waste identification requirements of Sec.  262.11 
and hazardous waste manifesting requirements of subpart B of part 262 
where RCRA waste codes must be identified. From stakeholder 
discussions, the EPA understands that some states interpret the 
hazardous waste determination process to include identifying the waste 
codes. We view this requirement to simply provide the connection 
between what wastes are in the container and what is on the hazardous 
waste manifest document. The Agency believes this linkage is important 
to program integrity and received support from commenters.
    These commenters mentioned that the proposed identification of RCRA 
waste codes on containers at the time of the pre-transport requirements 
at Sec.  262.32 provides another level of hazard communication for 
regulatory inspectors and emergency responders. They also suggested 
that this requirement decreases overall burden for generators, 
transporters and TSDFs because there will be fewer instances when a 
generator has failed to identify its hazardous waste, and therefore 
fewer cases where a designated facility needs to identify the hazardous 
waste or send the wastes back to the generator for proper 
identification. Similarly, this additional marking information also 
provides for quicker and more confident acceptance screening at the 
receiving facility.
    Commenters opposing this requirement raised concerns about the 
increase in burden and potential conflicts with DOT requirements, such 
as with 49 CFR 172.401. EPA disagrees that this is an increase in 
burden. Generators have always had to identify hazardous waste codes 
for the manifest and many states already require waste codes on 
containers. Without EPA hazardous waste codes, TSDFs may not be able to 
treat the waste to meet LDR requirements. In terms of potential DOT 
conflicts, EPA's pre-shipment marking requirements in Sec.  262.32 
(where we are finalizing the marking of hazardous waste codes on 
containers) are designed to be in compliance with 49 CFR 172.304 and 
these regulations reference that the marking must be in compliance with 
the DOT regulations.
    Other commenters raised the concern that adding waste codes to 
containers managed on site does not improve a generator's ability to 
properly manage that waste. EPA agrees with these comments that 
generators treating, storing, or disposing their hazardous waste on 
site do not need to identify the hazardous waste codes because they 
should have sufficient information already about their waste to ensure 
they meet the proper LDR requirements.
    Finally, as discussed in more detail in the marking and labeling 
section IX.E, EPA is finalizing the requirement in

[[Page 85754]]

Sec.  262.32 to add the waste codes to containers with the 
clarification that in lieu of marking their containers with EPA waste 
codes, generators may use a nationally recognized electronic systems 
such as bar coding (common industry practice) that includes the EPA 
waste codes. Also, EPA reaffirms that it is not changing the manifest 
waste code procedures. See the marking and labeling section IX.E for 
additional discussion.
    g. Non-hazardous waste determination documentation. The Agency is 
not finalizing the proposed recordkeeping requirement that generators 
maintain documentation of their non-hazardous waste determinations. 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.
    Numerous organizations voiced disapproval of the Agency's proposal 
to require SQGs and LQGs to document their non-hazardous waste 
determinations. Reasons included, but were not limited to, the 
following themes:
    (1) The Agency has no legal authority to require such documentation 
because the Subtitle C regulations do not regulate non-hazardous 
wastes;
    (2) 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;
    (3) The Agency failed to account for generators that generate 
numerous waste streams every day, such as the retail sector and 
academic and industrial laboratories; and
    (4) 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.
    Counterbalancing these arguments were comments from other 
organizations supportive of the non-hazardous waste determination 
recordkeeping requirement with 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.
    The Agency concludes that many of these arguments, 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.
    Several commenters questioned the Agency's authority to require 
such documentation of non-hazardous waste determinations because the 
Subtitle C regulations do not regulate non-hazardous wastes. 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 an alternative approach.
    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.
    Several commenters also questioned the need for 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. The Agency does not disagree with this argument, but in reality, 
not all generators are motivated to comply, given the high rate of non-
compliance with making accurate hazardous waste determinations.
    Other commenters, particularly in the retail and academic and 
industrial laboratory sectors, stated that the Agency failed to account 
for organizations with numerous waste streams generated every day when 
proposing documentation of non-hazardous waste determinations. 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, the Agency is not finalizing this provision.
    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 previously, the 
Agency supports this non-hazardous waste determination recordkeeping 
practice by industry and recommends it as a best management practice.
    The Agency did receive a number of comments supporting the proposal 
to require SQGs and LQGs to document their non-hazardous waste 
determinations. 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

[[Page 85755]]

evaluating whether the solid waste they have generated is a hazardous 
waste.

C. Determining Generator Category (40 CFR 262.13)

    A generator must correctly count the quantity of hazardous waste 
that it generates in order to determine its generator category. During 
the development of the proposed rule, EPA determined that the extent of 
the counting requirements in the generator regulations at the time 
consisted of lists in Sec.  261.5(c)-(d) and (h)-(j) of what materials 
must and must not be included when counting waste. These regulations 
did not address other counting considerations. EPA therefore proposed a 
new Sec.  262.13 to describe how a generator determines its generator 
category, containing the previously existing language in Sec.  
261.5(c)-(d) as well as some specific steps to calculate an amount that 
includes the correct amounts of hazardous waste.
    Elsewhere in the proposed rule, EPA proposed regulatory language 
for each of the categories of generators describing how the rules 
regarding mixing from Sec.  261.5(h)-(j) would impact their generator 
categories and how to count mixtures of hazardous waste and solid 
waste. EPA is consolidating the discussion of counting hazardous waste 
from all these areas of the proposed rule into Sec.  262.13 for the 
final rule in order to make these requirements easily understandable by 
the regulated community and thus improve compliance and consistency.
1. Counting Hazardous Waste
    a. Introduction. The purpose of proposed Sec.  262.13 was to lay 
out the framework for making a generator category determination in 
paragraph (a) and to stress that the generator's category can change 
from month to month. The proposed regulation set forth procedures to 
determine whether a generator is a VSQG, an SQG, or an LQG for a 
particular month, as defined in Sec.  260.10. As EPA discussed in the 
proposed rule, the regulations in Sec.  262.13 do not constitute a new 
requirement for generators, but in the regulations up to this point, 
the counting requirements have not been presented in a clear and 
succinct manner.
    b. What is EPA finalizing? EPA is finalizing a new Sec.  262.13 to 
address how to make a generator category determination. It includes the 
language discussed in this section on counting as well as the mixing 
requirements discussed later in this chapter of the preamble. The 
addition of the definitions of generator categories to Sec.  260.10 and 
this paragraph on how to make a generator category determination 
provide specific instructions on this matter for the regulated 
community and thereby improve compliance with the generator 
regulations.
    The introductory language of Sec.  262.13 states that a generator 
must determine its generator category and that the category is based on 
the amount of hazardous waste that is generated in a calendar month. 
This requirement for a generator category to be based on a monthly 
generation amount is derived from the RCRA statute and is critical to 
the framework of the generator regulations.\32\ The regulations also 
state that a generator's category can change from month to month. 
Although many generators change categories several times a year, 
depending on various factors such as inputs, demand, processing volume, 
and production, EPA knows many generators choose to operate as LQGs all 
the time to simplify their regulatory compliance. EPA encourages this 
practice, but notes in the regulations that actual generator category 
can change month to month.
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    \32\ RCRA 3001(d).
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    In addition, EPA notes that a VSQG or an SQG that generates more 
hazardous waste in a particular calendar month than allowed in its 
generator category must make a determination that it now meets the 
higher generator category (if it is not covered by the episodic 
generation provisions discussed in section X of this preamble).
    Paragraph (a) of Sec.  262.13 presents basic procedures for 
counting hazardous waste generated in the calendar month, subtracting 
or excluding anything that is exempt and using the difference to 
determine the generator category. Paragraph (b) of Sec.  262.13 
specifically addresses the situation in which a generator generates any 
combination of non-acute hazardous waste, acute hazardous waste, and 
the residues from the cleanup of a spill of acute hazardous waste. This 
paragraph presents a series of steps for a generator to follow when 
determining its generator category to ensure it selects the appropriate 
category for the total amount and types of hazardous waste generated.
    Sections 262.13(c) and (d) are existing provisions that EPA is 
moving from Sec.  261.5(c) and (d) of the existing regulations with a 
few small wording changes to reinforce that category determinations are 
made monthly and do not otherwise represent a change in the generator 
regulations.
    Section 262.13(e) completes the main process of counting by stating 
that based on the generator category that is determined under the steps 
laid out in the section, the generator should determine which of the 
sets of generator provisions apply to it.
    c. What changed since proposal? EPA made several changes to Sec.  
262.13(a)-(e) in response to the comments received on the proposed 
rule. First, several commenters pointed out that this section tailors 
its procedures for generators that generator acute and non-acute 
hazardous waste in the same month, but does not directly address 
generators that generator only acute hazardous waste or non-acute 
hazardous waste. EPA agrees with this comment and, therefore, converted 
the proposed paragraph (a) to introductory language for the section and 
made a new Sec.  262.13(a) that addresses those generators that 
generate only acute or non-acute hazardous waste. This section includes 
a simplified version of the same procedures in paragraph (b) for those 
without both types of hazardous waste.
    Commenters also noted that although EPA included a Table 1 to Sec.  
262.13 in the regulations, the table was not referenced in the 
regulations. EPA therefore added references to Table 1 in the 
regulatory text in paragraphs (a) and (b). Also, in Table 1 in this 
section, we are deleting the first column of numbers that denoted which 
generation scenario was being represented by each row. This column was 
potentially useful in the preamble discussion, but served no purpose in 
the regulations and has been removed.
    In addition, several commenters stated that although a generator's 
category is based on the amount of hazardous waste it generates in a 
calendar month, every generator need not make an exact category 
determination every month. The commenters argued that many generators 
have a very accurate sense of what category they are month-to-month 
because their processes generate consistent amounts of hazardous waste 
over time. Only those generators with generation amounts near the limit 
would have to count regularly to make the category determination. These 
commenters stated that many generators with categories that fluctuate 
from month-to-month choose to operate as LQGs full time and would, 
therefore, not need to count every month to determine generator 
category.
    EPA agrees with the commenters and therefore has made revisions to 
the introductory language for the section to state that a generator is 
required to determine its generator category. The language continues to 
stress that a category is based on monthly generation

[[Page 85756]]

and may change from month to month, but generators are not required to 
follow the included steps every month. EPA notes, however, that an LQG 
must keep track of its amounts of hazardous waste for the purpose of 
completing the Biennial Report, when applicable.
    Finally, EPA added the language in Sec.  262.13(e) upon determining 
that although the purpose of the section is to lead the generator 
through counting its hazardous waste for the purpose of determining the 
correct generator category, the proposed regulations did not include 
the final step in the process.
    Effect of the Reorganization: This section is partially affected by 
the reorganization. Some of the language in Sec.  262.13 on what 
materials to count when determining generator category moved from 
previous Sec.  261.5, but much of this regulation is new text. Section 
VI of this preamble discusses the reorganization.
2. Mixtures of Non-Hazardous Waste and Hazardous Waste
    a. Introduction. In an effort to explain how mixtures of non-
hazardous waste (solid waste) and hazardous waste affect generator 
category determinations, the Agency proposed a series of modifications 
in Sec. Sec.  262.14, 262.16 and 262.17 for VSQGs, SQGs and LQGs, 
respectively. The proposed rule also discussed how SQGs and LQGs are 
subject to the mixture rules in Sec.  261.3. As explained in the 
preamble to the proposed rule on page 57928, this clarification was 
also designed to clarify the language that was found at Sec. Sec.  
261.5(h) and (i) which addressed the mixing of hazardous waste and non-
hazardous waste by a VSQG and the implications to its generator 
category if the mixture is determined to be a hazardous waste. The 
language specifically addressed how the regulations apply when VSQG 
hazardous waste is mixed with non-hazardous solid waste and the 
resulting combination exceeds the VSQG quantity limits.
    b. What is EPA finalizing? The Agency is finalizing the regulations 
applicable to generators mixing hazardous waste with solid waste as 
follows:
    1. Moving the proposed relevant provisions of Sec. Sec.  262.14(b), 
262.16(d) and 262.17(f) applicable to mixtures of hazardous waste and 
solid waste to Sec.  262.13(f). The act of mixing a solid waste and a 
hazardous waste is not the same as a generator accumulating hazardous 
waste, nor is the act of mixing in any way related to the conditions 
for exemption from permitting. The purpose of moving the requirements 
for mixtures to Sec.  262.13 is to make generators aware of the 
regulations applicable to mixtures of hazardous waste and solid waste, 
and to accurately explain how the mixing of a hazardous waste with a 
solid waste may affect a generator's category determination for the 
calendar month.
    2. Clarifying that a VSQG mixing hazardous waste with solid waste 
can remain subject to Sec.  262.14, even though the mixture may exceed 
the VSQG quantity limits (either 100 kg per month generated or 1,000 kg 
accumulated on site at any one time) unless the mixture exhibits one or 
more of the characteristics of a hazardous waste. If the resultant 
mixture exhibits a hazardous waste characteristic, the VSQG must add 
the quantity from the resulting mixture with any other regulated 
hazardous waste generated in the calendar month and determine whether 
the total quantity generated exceeds the generator calendar month 
quantity identified in the definition of generator categories found in 
40 CFR 260.10.
    3. For both SQGs and LQGs:
    a. Reemphasizing that both the hazardous waste portion of the 
resulting mixture and other amounts of hazardous waste generated in a 
calendar month must be counted towards a generator's category 
determination.
    b. Making SQGs and LQGs aware of the Sec.  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).
    c. Stating that SQGs and LQGs are subject to the regulations 
applicable to mixtures found in Sec.  261.3(a)(2)(iv), (b)(2) and (3), 
and (g)(2)(i).
    d. Stating that 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 Sec.  268.40, as well as 
the ``impermissible dilution'' requirements in Sec.  268.3.\33\
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    \33\ Also see EPA document, Land Disposal Restrictions: Summary 
of Requirements, U.S. EPA Office of Solid Waste and Emergency 
Response and Office of Enforcement and Compliance Assurance, EPA-
530-R-01-007, Revised August 2001.
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    4. For all generators, reminding them they must make a hazardous 
waste determination at Sec.  262.11 when mixing a hazardous waste with 
a solid waste.
    c. What changed since proposal? As discussed previously, the Agency 
made a significant number of clarifying changes in the final rule for 
this provision based on review and evaluation of comments. These 
include the following: Moving the relevant proposed provisions of 
Sec. Sec.  262.14, 262.16 and 262.17 applicable to mixtures of 
hazardous waste and solid waste to Sec.  262.13 (f); stating that SQGs 
and LQGs are subject to the mixture rule found in Sec. Sec.  
261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); stating that SQGs and 
LQGs must comply with Sec.  268.3(a), which prohibit's impermissible 
dilution to avoid regulation; for all generators, stating that both the 
hazardous waste portion generated from mixing and the hazardous waste 
generated in a calendar month must be counted for establishing the 
generator category for that month; and stating that all generators must 
make a hazardous waste determination for their mixed waste.
    d. Major comments. Many commenters supported the proposed changes 
to include the application of the mixture rules in a generator's 
regulatory category determination. Others, however, requested greater 
clarity and specificity regarding these regulatory provisions. They 
asked for an explanation of the parameters allowed when mixing a solid 
waste and a hazardous waste. They also asked for clarification about 
when an SQG or LQG that mixes a characteristic hazardous waste with a 
solid waste and generates a mixture that no longer exhibits the 
hazardous characteristic must also meet the treatment standards found 
at Sec.  268.40, and a clarification that a hazardous waste 
determination is also required for wastes resulting from mixing of 
solid waste and hazardous waste. EPA made adjustments to Sec.  
262.13(f) in response to these comments where appropriate.
    One commenter pointed out that the applicable regulations for 
mixtures are unrelated to the conditions for an exemption from 
operating without a permit and therefore, the requirements applicable 
to mixtures do not belong under Sec. Sec.  262.14, 262.16, and 262.17. 
The Agency agrees these are valid

[[Page 85757]]

comments and has incorporated these changes as already described.
    Effect of the Reorganization: This section is affected by the 
reorganization. The mixing provisions for VSQGs that are now found in 
Sec.  262.13 were previously located in Sec.  261.5(i) and (h). The 
reorganization is discussed in section VI of this preamble.

D. Very Small Quantity Generator Conditions for Exemption (40 CFR 
262.14)

    The regulations for VSQGs have moved, with some changes, from their 
previous location in Sec.  261.5 to Sec.  262.14 as part of the 
reorganization of the generator regulations. Although there are some 
changes to these regulations, they were mainly relocated from one part 
to the other. Please see section VI of this preamble for a discussion 
of the reorganization and for an overview of the new Sec.  262.14.

E. Marking and Labeling and Hazardous Waste Numbers (40 CFR 
262.15(a)(5), 262.16(b)(6), 262.17(a)(5), 262.32(b)-(d), 263.12(b) and 
268.50(a)(2)(i)

    This section discusses the final rules associated with the marking 
and labeling of hazardous waste accumulated on site by SQGs and LQGs in 
containers and tanks. This section also addresses the marking and 
labeling requirements for (1) hazardous waste transporters that store 
containers of hazardous waste at transfer facilities (see 40 CFR 
263.12) and (2) TSDFs that store containers of hazardous waste under 
the storage prohibition of the land disposal restriction requirements 
at 40 CFR 268.50(a)(2)(i). Lastly, in this section, we discuss the 
application of EPA hazardous waste codes to containers prior to 
shipment off site to a designated facility.
    The regulatory changes EPA proposed to the 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. As one commenter 
stated, ``The department appreciates the opportunity to revisit this 
important topic, as we believe [it] 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.'' \34\ Accordingly, EPA proposed to strengthen the 
marking and labeling for containers and tanks throughout the cradle to 
grave management chain, including for SAAs, SQGs, LQGs, VSQGs that send 
their hazardous waste to LQGs under the same control, episodic 
generators, transfer facilities, and TSDFs. The Agency proposed 
consistent changes for marking and labeling throughout the regulations, 
and many of the comments we received on the topic marking and labeling 
are relevant throughout, so the primary discussion of those changes 
will be in this section. In certain instances, specific aspects of the 
marking and labeling requirements are addressed in other sections of 
this preamble, such as with VSQGs that send their hazardous waste to 
LQGs under the same control, episodic generators, and SQGs and LQGs 
that accumulate on drip pads and in containment buildings.
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    \34\ Missouri Department of Natural Resources, EPA-HQ-RCRA-2012-
0121-0223.
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1. Marking and Labeling for SQGs and LQGs With Containers in SAAs (40 
CFR 262.15(a)(5))
    a. Introduction. The previous regulations for SAAs in Sec.  
262.34(c)(1)(ii) required an SQG or LQG to mark its SAA containers 
``either with the words `Hazardous Waste' or with other words that 
identify the contents of the containers'' [emphasis added]. The Agency 
proposed two modifications to strengthen the labeling and marking 
regulations for containers accumulating hazardous waste in SAAs. First, 
EPA proposed to change the ``or'' to an ``and'' and thus require that 
generators mark containers in the SAA with both the words ``Hazardous 
Waste'' and ``other words to identify the contents of the container.'' 
Although the words ``Hazardous Waste'' are important to convey that the 
container contains a waste, as opposed to a product, and that a 
hazardous waste determination has been made for the contents, it does 
not convey more practical information regarding the contents of the 
container that workers must be familiar with for purposes of on-site 
handling.
    Second, 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. 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. Therefore, EPA proposed that 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. That 
is, we proposed that generators could 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 1910.1200; a chemical hazard label consistent with 
NFPA code 704; or a hazard pictogram consistent with the United 
Nations' Global Harmonized System (GHS). We also proposed that 
generators could also 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.
    These proposed changes were 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 
previously)

[[Page 85758]]

from which generators could choose to indicate the hazards of the 
container.
    In summary, EPA proposed to modify the marking and labeling 
regulations for SAAs to require SQGs and LQGs to mark containers with 
the following: (1) The words ``Hazardous Waste''; (2) other words that 
identify the contents of the containers (examples which 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 DOT requirements at 49 CFR part 172 subpart D); and (3) 
an indication of the hazards of the contents of the container. Examples 
of hazards 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 DOT requirements at 49 CFR 
part 172 subpart E (labeling); a label consistent with the OSHA Hazard 
Communication Standard at 29 CFR 1910.1200; a chemical hazard label 
consistent with the NFPA code 704; or a hazard pictogram consistent 
with the United Nations' GHS. EPA also proposed that SQGs and LQGs 
could 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. 
EPA did not propose to change the existing requirement for when the SAA 
maximum accumulation volumes are exceeded, to ``mark the container 
holding the excess accumulation of hazardous waste with the date the 
excess amount began accumulating'' (40 CFR 262.34(c)(2)).
    b. What is EPA finalizing for the marking and labeling of 
containers in SAAs? 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 1910.1200; or a chemical hazard 
label consistent with the NFPA code 704).
    c. What changed since proposal? The Agency received a large number 
of comments regarding the marking and labeling changes throughout the 
proposed rule. In response to comments, we have 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.\35\ Another commenter 
suggested that we allow generators to choose between identifying the 
contents of the container and identifying the hazards of the 
contents.\36\ 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. As one commenter noted, ``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 the wastes they may encounter.'' \37\ 
One other minor change is that we removed the mention of the United 
Nations Globally Harmonized System (GHS) as a means of identifying the 
hazards of the contents of the container. Now that OSHA has aligned its 
regulations with the GHS, it is no longer necessary to identify the GHS 
separately.
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    \35\ Colorado Department of Public Health and Environment 
(CDPHE), EPA-HQ-RCRA-2012-0121-0085.
    \36\ Department of Energy, EPA-HQ-RCRA-2012-0121-0123.
    \37\ Savannah River Site, EPA-HQ-RCRA-2012-0121-0092.
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    d. Major comments. While some commenters supported our proposed 
marking/labeling regulations, many other commenters objected to the 
burden imposed by the additional marking/labeling requirements. 
Commenters questioned the benefits and the practicality of the proposed 
requirements, although one commenter noted it had similar marking and 
labeling procedures in place for over twenty years and they worked very 
well.\38\ Several commenters, particularly 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.
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    \38\ Savannah River Site, EPA-HQ-RCRA-2012-0121-0092.
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    Some commenters had the 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. In fact, one commenter supported EPA's approach of 
``giving generators options to accomplish this strengthened 
communication.'' \39\ 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.\40\
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    \39\ Institute of Makers of Explosives, EPA-HQ-RCRA-2012-0121-
0126.
    \40\ See 49 CFR 172.304(a)(4) which requires DOT markings to be 
``located away from any other marking (such as advertising) that 
could substantially reduce its effectiveness. Also see 49 CFR 
172.406(f) which states that a ``label must be clearly visible and 
may not be obscured by markings or attachments.
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    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

[[Page 85759]]

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.
    On a separate but related matter, one commenter reminded EPA that 
OSHA has new regulations for hazard communication that align with the 
GHS system and that the regulated community needs to adjust to these 
before RCRA changes are adopted.\41\ OSHA's transition to the GHS 
regulations have been phased in over time, with June 1, 2016, as the 
final phase-in date. These RCRA final regulations will not be effective 
in most states until the authorized state adopts the revised 
regulations, and therefore, most generators will have ample time to 
plan for these RCRA marking and labeling changes before they become 
effective. Furthermore, generators may choose to use the OSHA/GHS 
system for identifying the hazards of the contents of their containers 
and thereby reduce the burden of learning additional marking/labeling 
mechanisms. It is important to note, however, that EPA is requiring 
only that the hazards of the contents are identified. And although 
generators may use the OSHA/GHS system to comply with this provision, 
we are not requiring full OSHA/GHS compliant marking and labeling for 
hazardous wastes. For our purposes, an OSHA/GHS hazard statement or 
pictogram would be sufficient.
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    \41\ Tennessee Chamber of Commerce & Industry, EPA-HQ-RCRA-2012-
0121-0225.
---------------------------------------------------------------------------

    Finally, commenters asked EPA to clarify several aspects of the 
container marking and labeling requirements. First, one commenter asked 
us to specify that the labeling should occur at the initial point of 
generation.\42\ We concur with this commenter that the marking and 
labeling requirements apply at the point of generation of the hazardous 
waste which is both the time and place where the hazardous waste is 
initially generated. Second, 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.\43\ Alternatively, as one commenter 
suggested, generators using small containers may attach a tag to a 
container to comply with the marking and labeling requirements.\44\ 
Third, 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.
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    \42\ Tennessee Department of Environment and Conservation, EPA-
HQ-RCRA-2012-0121-0116.
    \43\ 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.
    \44\ Carl Severn, EPA-HQ-RCRA-2012-0121-0079.
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2. Marking and Labeling for SQGs and LQGs With Containers in CAAs (40 
CFR 262.16(b)(6) and 262.17(a)(5))
    a. Introduction. The previous LQG and SQG regulations in Sec.  
262.34(a)(3) and Sec.  262.34(d)(4), respectively, required each 
container to be labeled or marked clearly with the words, ``Hazardous 
Waste.'' The Agency proposed two modifications to strengthen the 
labeling and marking for SQGs and LQGs accumulating hazardous waste in 
containers. In order to provide continuity and consistency, these 
changes were similar to those proposed for containers in satellite 
accumulation areas (see section IX.E.1.) First, the Agency proposed 
that SQGs and LQGs accumulating hazardous waste in containers mark them 
with the words ``Hazardous Waste.'' Second, EPA proposed that SQGs and 
LQGs mark or label their containers in CAAs with ``other words that 
identify the contents of the containers.'' Third, we proposed that SQGs 
and LQGs mark and label their containers with an indication of the 
hazards of the contents. EPA stated that this approach would establish 
consistency between the marking and labeling practices of hazardous 
wastes accumulated in containers in SAAs and CAAs, and thereby allowing 
some degree of business efficiency as containers are moved from SAAs 
into CAAs. We did not propose to change the existing provision that 
requires SQGs and LQGs to mark clearly and visibly the date 
accumulation began on each container and make that marking visible for 
inspection.
    b. What is EPA finalizing? The Agency is finalizing the following 
marking and labeling provisions for SQGs and LQGs accumulating 
hazardous wastes in containers located in CAAs. SQGs and LQGs 
accumulating hazardous waste in containers must mark their containers 
with the words ``Hazardous Waste.'' SQGs and LQGs also must mark and 
label their containers with an indication of the hazards of the 
contents of the containers. Examples of hazards 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 OSHA Hazard Communication Standard at 29 CFR 1910.1200; or a 
chemical hazard label consistent with the NFPA code 704. Also, as 
discussed in section IX.E.7, SQGs and LQGs are required to mark their 
containers with the applicable EPA hazardous waste number(s) prior to 
shipping their containers off site to a RCRA-permitted TSDF.
    The marking and labeling requirements for containers in CAAs are 
consistent and identical to the marking and labeling requirements for 
hazardous wastes accumulated in containers located in SAAs. For the 
reasons cited under the SAA discussion (i.e., simplifying requirements, 
avoiding implementation problems, responding to commenter concerns), 
EPA is finalizing the same marking and labeling requirements for 
hazardous wastes accumulated in containers located in CAAs and SAAs. 
The only difference is that SQGs and LQGs must mark or label containers 
in SAAs with the date that maximum volumes (or mass) are exceeded, 
while SQGs and LQGs must mark or label containers in CAAs with the date 
the hazardous waste first began accumulating. Both of these dating 
requirements are existing requirements that remain unaffected by this 
final rule.
    c. What changed since proposal? For the same reasons discussed 
under section IX.E.1, the Agency is not finalizing the requirement for 
SQGs and LQGs with CAAs to mark or label their containers with ``other 
words that identify the contents of the container.''
3. Marking and Labeling for SQGs and LQGs With Tanks in CAAs (40 CFR 
262.16(b)(6)(ii) and 262.17(a)(5)(ii))
    a. Introduction. The Agency also proposed a number of changes to 
improve the marking and labeling of hazardous wastes accumulated in 
tanks by both SQGs and LQGs at Sec.  262.16(b)(6)(ii) and Sec.  
262.17(a)(5)(ii),

[[Page 85760]]

respectively. Specifically, the Agency proposed that SQGs and LQGs: (1) 
Mark or label their tanks with the words ``Hazardous Waste''; (2) use 
inventory logs, monitoring equipment, or records to identify the 
contents of the tank and its associated hazards; (3) use inventory 
logs, monitoring equipment or records to identify the date each period 
of accumulation begins; and (4) keep inventory logs or records with the 
above information in close proximity to the tank.
    b. What is EPA finalizing? EPA is finalizing the following marking 
and labeling requirements for SQGs and LQGs accumulating hazardous 
waste in tanks: (1) While hazardous wastes are being accumulated on 
site, SQGs and LQGs must mark their tanks with the words ``Hazardous 
Waste''; (2) consistent with the revised requirements for the marking 
and labeling of containers, SQGs and LQGs must mark or label their 
tanks with an indication of the hazards of the contents. Examples of 
hazards 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 OSHA Hazard Communication Standard at 29 
CFR 1910.1200; or a chemical hazard label consistent with the NFPA code 
704); (3) use inventory logs, monitoring equipment, or other records to 
demonstrate that hazardous waste has been emptied within 180 days for 
SQGs (or 90 days for LQGs) 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 for SQGs (or 90 days for LQGs) of 
first entering; and (4) keep inventory logs or records with the above 
information on site and readily available for inspections.
    c. What changed since proposal? Three changes were made between the 
proposed rule and the final rule. First, consistent with the changes to 
container marking and labeling, SQGs and LQGs are not required to 
identify the contents of their tanks, although we strongly recommend 
generators maintain records identifying the contents of the tanks as a 
best management practice. Second, we have modified where inventory logs 
or records for tanks must be kept. We had proposed that the information 
must be in close proximity to the tank. Commenters indicated that 
having records in close proximity may not always be practical or even 
desirable. For instance, some hazardous waste accumulation tanks are 
outside and having records in close proximity would mean that the 
records would be exposed to the elements. In response to comments, we 
have modified the regulations so that the records must be kept on site 
and readily available for inspections. Ideally these records will be in 
close proximity to where hazardous waste is being accumulated in the 
tank, or if not practical (i.e., exposure to weather, physically 
infeasible, etc.) in a control room, or other central location at the 
facility.
    Third, 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.
    As an example, if a tank with a continuous flow process has a 
capacity of 10,000 gallons, an inflow of hazardous wastes of 1,000 
gallons per day and an outflow estimated at 500 gallons per day, then 
the expected residence time of the hazardous waste in the tank would be 
20 days. The residence time would be calculated by first subtracting 
the daily outflow from the daily inflow (1,000 - 500 = 500). Then the 
tank capacity would be divided by the difference between the outflow 
and the inflow (10,000/500 = 20). The resulting residence time is 20 
days.
    d. Major comments. Commenters were supportive of the proposed 
changes for marking and labeling of tanks with the words ``Hazardous 
Waste'' and maintaining records that prove the amount of time hazardous 
waste remained in the tank did not exceed either 90 or 180 days for 
LQGs and SQGs, respectively. One commenter mentioned, and EPA agrees, 
that the markings must be visible and legible to a person observing the 
tank. Another commenter supported the options we proposed for 
indicating the hazards of tanks, noting that it will help generators be 
able to choose the method that work best for their facility. Several 
commenters were supportive of the flexibility provided to generators to 
prove the amount of time hazardous waste remained in the tank (e.g., 
inventory logs, monitoring equipment, or records). EPA notes that 
generators may use paper or electronic records, provided they are on 
site and readily available for inspection. Several commenters expressed 
concern that EPA did not explicitly discuss tanks with continuous flow 
processes in the proposed regulatory text (though they are discussed in 
the preamble to the proposed rule). As discussed previously, the Agency 
has revised the regulatory text of the final rule to explicitly address 
these comments.
4. Marking and Labeling for SQGs and LQGs With Drip Pads and 
Containment Buildings
    In the proposed rule, the Agency proposed marking and labeling 
requirements for generators accumulating hazardous waste on drip pads 
and in containment buildings. Upon review of comments and further 
evaluation, the Agency now believes the marking and labeling provisions 
for these type of units belongs more appropriately under the discussion 
of the waste accumulation regulations for these types of units. 
Therefore, for further discussion, the Agency directs the reader to 
section IX.G.--Accumulation of Hazardous Waste by SQGs and LQGs on Drip 
Pads and in Containment Buildings.
5. Marking and Labeling for Transfer Facilities (40 CFR 263.12(b))
    a. Introduction. The Agency proposed to change the marking and 
labeling requirements for transporters handling hazardous waste in 
containers at transfer facilities, found at Sec.  263.12(b), to be 
consistent with the proposed

[[Page 85761]]

changes for marking and labeling for containers for SQGs, for LQGs, and 
in SAAs. More specifically, EPA proposed that transporters storing 
hazardous wastes in containers at transfer facilities mark the 
containers with the following: (1) The words ``Hazardous Waste''; (2) 
other words that identify the contents of the containers, with examples 
that may include, but are not limited, the name of the chemical(s), or, 
as applicable, the proper shipping name and technical name markings 
used to comply with DOT requirements at 49 CFR part 172 subpart D; and 
(3) an indication of the hazards of the contents of the container. In 
addition to these proposed changes, EPA also proposed to require that 
containers of hazardous waste at transfer facilities be labeled with 
the applicable EPA hazardous waste number(s) (EPA hazardous waste 
codes), which would help the TSDF receiving the hazardous waste comply 
with the LDR regulations in 40 CFR part 268.
    The Agency proposed these modifications to ensure hazardous wastes 
are appropriately labeled and marked throughout its cradle-to-grave 
management, including transportation to a RCRA-permitted or interim 
status TSDF or to another transfer facility. Similarly, this additional 
information on the container would alert workers and other handlers to 
the contents of the container and the potential hazards of the 
materials therein.
    In proposing these changes, the Agency believed that, in almost all 
cases, containers received by the transfer facility would already be 
marked and labeled by the generator, and therefore, any additional 
burden on the transfer facility would be minimal. However, in the 
preamble to the proposed rule, the Agency identified other situations 
where a transporter would be required to initiate the marking and 
labeling of a container; e.g., when the transporter consolidates two 
containers with the same hazardous waste into a new container or when 
it is able to combine and consolidate two different hazardous wastes 
that are compatible with each other and are able to be subsequently 
managed consistently in compliance with the applicable regulations in 
parts 264, 265, 267, 268 and 270 of this chapter.
    b. What is EPA finalizing? The Agency is requiring that 
transporters must mark or label containers with the words ``Hazardous 
Waste'' when they consolidate the contents of two or more containers 
with the same hazardous waste into a new container, or when the 
transporter consolidates hazardous wastes that are compatible with each 
other. As discussed in section IX.E.7, when such consolidation occurs, 
the transporter will also be required to mark or label the container 
with the applicable RCRA waste codes, in compliance with Sec.  
262.32(b) or (c).
    c. What changed since proposal? First, consistent with the marking 
and labeling requirements being finalized in several sections of this 
rule, transporters are not required to mark or label the container with 
its contents. However, the Agency expects that transporters, as well as 
generators, will identify the contents of the container as a best 
management practice. Second, as discussed elsewhere, in cases where a 
transporter must mark its containers with the applicable EPA hazardous 
waste codes, they will have flexibility in how they comply. Third, 
because containers at transfer facilities are, by definition, in 
transport, DOT marking and labeling apply to them. As a result, we have 
removed the proposed requirement to identify the hazards of the 
container, since it would be duplicative of (and possibly even 
contradictory to) the DOT requirements. Fourth, consistent with the 
pre-transport requirements for SQGs and LQGs in Sec.  262.32, the 
Agency is clarifying that the marking and labeling applies to 
transporters using containers of 119 gallons or less (i.e., what DOT 
refers to as non-bulk packaging).
    d. Major comments. Comments both supported and opposed this 
provision. Critical comments questioned the need for this provision 
because generators are responsible for the marking and labeling of 
containers that subsequently arrive at transfer facilities. Similarly, 
more than one commenter questioned the need for transporters to mark 
containers with the applicable EPA hazardous waste codes and discussed 
the problems requiring this information would cause to the waste 
management industry since they have well-established waste profile 
systems that accomplish that function. One commenter also was critical 
of the manner in which the regulatory text was written whereby the 
Agency made it the responsibility of the transporter to ensure all 
marking and labeling information is correct. Another commenter pointed 
out that as per DOT regulations, rail cars used to accumulate and 
transport hazardous waste and other bulk shipments do not have to be 
labeled ``Hazardous Waste'' in transit. As discussed in an earlier 
section, the Agency took these comments into account when finalizing 
this rule.
6. Marking and Labeling for TSDFs With Containers and Tanks (40 CFR 
268.50(a)(2)(i))
    a. Introduction. As part of its effort to improve risk 
communication with respect to the management of hazardous waste, the 
Agency also proposed changing the regulations for marking and labeling 
containers at TSDFs in Sec.  268.50(a)(2)(i)--consistent with the 
proposed marking and labeling changes for SAAs, SQGs, LQGs, and for 
transfer facilities. More specifically, EPA proposed that TSDFs storing 
hazardous wastes in containers mark their containers with the 
following: (1) The words ``Hazardous Waste''; (2) other words that 
identify the contents of the containers, with examples that may 
include, but are not limited, the name of the chemical(s), or, as 
applicable, the proper shipping name and technical name markings used 
to comply with DOT requirements at 49 CFR part 172 subpart D; and (3) 
an indication of the hazards of the contents of the container. The 
Agency also proposed that containers must be labeled with the 
applicable EPA hazardous waste number(s) (EPA hazardous waste codes), 
which help the TSDF comply with the applicable land disposal 
restriction (LDR) regulations. The LDR regulations list many of the 
treatment standards based on the hazardous waste code. In the proposal, 
the Agency left unchanged the pre-existing provisions of Sec.  
268.50(a)(2)(i), which require TSDFs to clearly mark each container to 
identify its contents and the date each period of accumulation begins.
    b. What is EPA finalizing? The Agency is finalizing the requirement 
for TSDFs to mark or label containers of hazardous waste with the words 
``Hazardous Waste,'' an indication of the hazards of the contents, and 
the applicable EPA hazardous waste numbers (waste codes) consistent 
with Sec.  262.32(b)-(d). As with transfer facilities, EPA expects 
almost all incoming containers received by a TSDF will already have the 
appropriate marking and labeling information and, therefore, that a 
TSDF will usually only need to mark or label a container themselves 
when receiving shipments from facilities that are neither SQGs nor 
LQGs. As an example, TSDFs may receive hazardous wastes directly from 
VSQGs. Under the federal program, VSQGs are not required to mark and 
label their containers ``Hazardous Wastes'' and identify the hazards 
associated with the wastes in the container. In this situation, the 
TSDF must mark or label the container with the words ``Hazardous 
Waste,'' the

[[Page 85762]]

applicable hazardous waste codes, and identify the hazards of the 
container. Additionally, consistent with the pre-existing regulations 
at Sec.  268.50(a)(2)(i), a TSDF must also continue to mark or label 
each container of hazardous waste to identify the contents of the 
container and the date each period of accumulation begins, regardless 
of whether the TSDF receives the containers from a VSQG, SQG, LQG, or 
transfer facility. The Agency is also reiterating that if a TSDF 
generates its own hazardous waste, it must follow the applicable RCRA 
generator regulations in part 262, including the marking and labeling 
provisions for containers and tanks.
    c. What changed since proposal? The Agency revised the marking and 
labeling requirements pertaining to identifying the hazards of the 
container, consistent with changes in other parts of this rule (i.e., 
the SAAs, SQGs, LQGs, and transfer facilities marking and labeling 
requirements).
    d. Major comments. The Agency received few comments concerning this 
provision of the rule. Some commenters supported the proposed changes 
while other commenters stated that these changes were unnecessary. As 
discussed previously, the Agency believes it has responded to 
commenters who expressed concerns by clarifying the applicability of 
this provision.
7. Hazardous Waste Numbers (Waste Codes) (40 CFR 262.32(b) and (c))
    a. Introduction. The Agency proposed Sec.  262.32(c) to require 
SQGs and LQGs to mark their containers with the applicable EPA 
hazardous waste number (RCRA hazardous waste code) prior to 
transporting their hazardous waste off site to a designated RCRA 
facility for subsequent management. EPA proposed this revision 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. As 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 this 
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.
    b. What is EPA finalizing? The Agency is finalizing the pre-
transport marking requirements at Sec.  262.32 by modifying Sec.  
262.32(b) to include the EPA hazardous waste number or code as part of 
the marking requirements for containers, and also adding Sec.  
262.32(c) to allow generators, transporters and TSDFs, in lieu of Sec.  
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.\45\ 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.
---------------------------------------------------------------------------

    \45\ 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
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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.
    c. What changed from proposal? In response to comments, the Agency 
is providing needed flexibility in complying with this requirement to 
account for alternative ways of marking containers with EPA hazardous 
waste codes. By doing so, the Agency is accommodating existing 
processes used by many generators and the waste management industry. 
Also in response to comment, we are providing an exception for lab 
packs that will be incinerated.
    d. Major comments. Several commenters pointed out that while many 
generators still mark their containers with the applicable EPA 
hazardous waste codes, the industry trend is for generators to rely on 
their waste handlers who have developed sophisticated computerized 
systems that use detailed waste profiling procedures with bar codes and 
scanners (similar to package shipping and other national logistics 
companies). They use these systems to accurately identify individual 
drum contents and some include the EPA hazardous waste numbers. As 
stated by one commenter, TSDFs commonly prepare labels and shipping 
papers for their generator customers, and as part of this service, also 
utilize a waste profiling process that fully describes the waste in 
terms of physical state, common name, hazard codes, LDR applicability, 
and DOT description.\46\ This commenter argues that to not allow this 
industry-wide service to continue would only cause confusion to a well-
established process. EPA agrees and has modified the requirement 
accordingly.
---------------------------------------------------------------------------

    \46\ Environmental Technology Council, EPA-HQ-RCRA-2012-0121-
0134.
---------------------------------------------------------------------------

F. Revisions to Satellite Accumulation Area (SAA) Regulations for SQGs 
and LQGs (262.15)

    Hazardous waste generators are allowed, though not required, to use 
SAAs, provided that the generators meet the conditions for their use. 
SAAs are designed to assist generators who generate and accumulate 
small amounts of hazardous waste in different areas of their 
facilities. Alternatively, SQGs and LQGs may choose to accumulate 
hazardous waste only in CAAs rather than in SAAs. If an SQG or LQG does 
choose to accumulate hazardous waste in an SAA, the generator may 
accumulate a limited amount of

[[Page 85763]]

hazardous waste within each SAA. Once that threshold is reached, the 
SQG or LQG must transfer the hazardous waste to a CAA. Alternatively, a 
generator may accumulate hazardous waste within an SAA and never move 
the waste to a CAA once the threshold is reached, but instead, ship the 
waste directly off site to a RCRA designated facility (e.g., a TSDF).
    The Agency proposed six changes to the regulations for SAAs, now 
found at Sec.  262.15. These six proposed regulatory changes and the 
final regulatory changes are individually discussed here in detail. In 
addition to these six proposed regulatory changes, EPA discussed two 
additional issues in the preamble to the proposed rule: (1) Our 
intention to rescind a guidance memo regarding the accumulation of 
reactive (D003) hazardous waste at locations away from the point of 
generation and (2) examples to help generators better understand the 
term ``under the control of the operator,'' which is used in the SAA 
regulations. These proposed changes were in response to stakeholder 
requests for additional clarification, additional flexibility or 
increased environmental protection that have been expressed through the 
years in various interactions, including the 2004 Generator 
Initiative,\47\ with the regulated community, as well as state and 
regional regulators.
---------------------------------------------------------------------------

    \47\ In 2004, EPA held a series of public meetings to solicit 
input from stakeholders about the generator regulations.
---------------------------------------------------------------------------

    The Agency is finalizing these six proposed regulatory changes, 
with minor modifications, along with three additional minor changes. 
These nine regulatory changes are all summarized individually here, and 
six of the changes are discussed in further detail later on. First, 
SQGs and LQGs that accumulate hazardous waste in SAAs will now be 
required to comply with the special requirements for incompatible 
wastes found at Sec.  265.177 (with minor revisions). Second, we are 
providing regulatory flexibility by providing limited exceptions to the 
regulation requiring generators to keep containers closed at all times 
(with minor revisions). Third, when maximum volumes are reached in 
SAAs, we are clarifying that generators will have three consecutive 
calendar days to remove the hazardous waste from the SAA or come into 
compliance with the CAA regulations. Fourth, we are providing 
additional flexibility to allow generators that accumulate acute 
hazardous waste in SAAs to choose between using a maximum accumulation 
volume (1 quart for liquids) or maximum accumulation weight (1 kg or 
2.2 lbs for solids). Fifth, we are clarifying the regulations for 
situations when the maximum volume (or weight) is exceeded in an SAA. 
Sixth, containers used in SAAs will be subject to the strengthened 
marking and labeling standards (note these marking and labeling changes 
are the same as those for containers in CAAs and were discussed 
previously in section IX.E. of the preamble to this final rule). The 
seventh change being made to SAA regulations pertains to the 
applicability of preparedness, prevention and emergency procedures. The 
eighth change is a minor wording change in response to a comment from 
the Association of State and Territorial Solid Waste Management 
Officials (ASTSWMO).\48\ They recommend, and we agree, that under Sec.  
262.15(a)(1), the regulatory language should have the word 
``immediately'' added to state explicitly that if a container in an SAA 
is leaking, the generator must immediately transfer the hazardous waste 
to a container in good condition that does not leak (emphasis added). 
Similarly, a generator has the option to transfer a damaged or leaking 
container to a CAA, also immediately, and we have added language to 
clarify that the CAA must be operated in compliance with the CAA 
regulations. Therefore, Sec.  262.15(a)(1) now states that if a 
container holding hazardous waste is not in good condition, or if it 
begins to leak, the generator must immediately transfer the hazardous 
waste from this container to a container that is in good condition and 
does not leak, or immediately transfer and manage the waste in a 
central accumulation area operated in compliance with Sec.  262.16(b) 
or Sec.  262.17(a). The ninth change is rewording of Sec.  262.15(a) to 
be consistent with changes made to the SQG and LQG regulations to make 
it clear that an SQG or LQG can choose to operate an SAA and that the 
SAA is not required to comply with the SQG regulations of Sec.  
262.16(b) or LQG regulations of Sec.  262.17(a), and is not required to 
have a permit or interim status, and is not required to comply with 
parts 124, 264 through 267, and 270, provided the generator complies 
with the conditions of exemption for an SAA.
---------------------------------------------------------------------------

    \48\ Association of State and Territorial Solid Waste Management 
Officials (ASTSWMO), EPA-HQ-RCRA-2012-0121-0217.
---------------------------------------------------------------------------

    With regard to the non-regulatory actions pertaining to SAAs that 
were discussed in the proposed rule, we are moving forward to rescind 
the January 13, 1988 memo that allowed a storage shed outside of a 
building where a reactive hazardous waste (D003) is initially generated 
to be considered an SAA.\49\ Finally, we will further discuss in the 
preamble what is meant by ``under the control of the operator,'' a term 
that is used in the SAA regulations. These two non-regulatory actions 
are discussed individually in detail later.
---------------------------------------------------------------------------

    \49\ Letter from Marcia E. Williams, Director of EPA's Office of 
Solid Waste, to Michael E. Young, Atlantic Research Corporation, 
January 13, 1988, RCRA Online 11317.
---------------------------------------------------------------------------

1. Requiring SQGs and LQGs To Comply With the Special Requirements for 
Incompatible Wastes for Containers Accumulating Hazardous Wastes in 
SAAs (40 CFR 262.15(a)(3))
    We proposed that SQGs and LQGs accumulating hazardous waste in SAAs 
must comply with the special requirements for incompatible wastes found 
at Sec.  265.177. The regulations at Sec.  265.177 include three 
requirements (1) incompatibles must not be placed in the same container 
unless Sec.  265.17 (b) \50\ is complied with, (2) hazardous waste must 
not be placed in an unwashed container that previously held an 
incompatible unless Sec.  265.17 (b) is complied with and (3) a 
container holding an incompatible must be separated from the other 
material by means of a dike, berm, wall, or other device. The Agency 
believes that in developing the regulations for SAAs in 1984, it 
inadvertently failed to account for SQGs and LQGs that might accumulate 
incompatible wastes. Most commenters were supportive of requiring SQGs 
and LQGs that accumulate hazardous waste in SAAs to comply with the 
special requirements for incompatible wastes found at Sec.  265.177, 
including a few states that said they already have corrected this 
oversight in their state regulations. However, some commenters argued 
it was unnecessary to add it to the regulations because it is in a 
generator's best interest to keep incompatibles separate and therefore 
they already comply with this best management practice at their SAAs. 
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

[[Page 85764]]

and LQGs accumulating hazardous waste in SAAs comply with the part 265 
subpart I container management standards for incompatible hazardous 
wastes at Sec.  265.177. We agree with the commenter who ``view[s] this 
as a codification of an existing safe practice.'' \51\
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    \50\ Section 265.17(b), which is entitled General requirements 
for ignitable, reactive, or incompatible wastes is in part 265 
subpart B, the General Facility Standards that apply to interim 
status TSDFs. Section 265.17(b) also applies to SQGs and LQGs that 
accumulate ignitable, reactive, or incompatible wastes in CAAs.
    \51\ University of Nebraska-Lincoln (UNL), comment number EPA-
HQ-RCRA-2012-0121-0121.
---------------------------------------------------------------------------

    Several commenters objected to the third requirement of Sec.  
265.177 in that they felt it unnecessary and impracticable to require 
that a container holding an incompatible hazardous waste in an SAA be 
separated from the other material by means of a dike, berm, wall, or 
other device. This proposed regulatory language was taken directly from 
the language in Sec.  265.177, which applies to interim status TSDFs, 
as well as CAAs at SQGs and LQGs. The commenters argue that a dike, 
berm or wall would not be feasible in the confines of an SAA, which is 
only allowed to accumulate a maximum of 55 gallons of hazardous waste. 
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. One commenter provided an 
example of what they do to avoid potential comingling of incompatible 
wastes in their CAA--they ``. . . segregate incompatible wastes onto 
separate pallets in the 90-day accumulation area. Pallets holding 
incompatible wastes are separated by at least one pallet width (i.e., 
the ``pallet footprint'') in all directions. For example, a pallet of 
oxidizers and a pallet of flammables cannot be placed next to, above, 
or below each other.'' \52\ Another commenter suggested that drip 
trays, or secondary containers would be more appropriate means to 
segregate incompatibles accumulating in SAAs.\53\ The Agency believes 
that either of these practices constitute ``any practical means,'' and 
are allowed by the SAA regulations for separating incompatibles in 
SAAs.
---------------------------------------------------------------------------

    \52\ Stericycle, comment number EPA-HQ-RCRA-2012-0121-0127.
    \53\ Pacific Northwest National Laboratory, comment number EPA-
HQ-RCRA-2012-0121-0078.
---------------------------------------------------------------------------

    EPA is making one additional minor revision to this section of the 
SAA regulations. We are removing the reference to piles, open tanks and 
surface impoundments. Containers are the only type of waste 
accumulation units allowed in SAAs. As previously noted, these 
regulations were copied from the interim status TSDF regulations, where 
these additional waste accumulation units are allowed. At the time of 
proposal, the Agency inadvertently overlooked this and is therefore 
making conforming changes as part of this rulemaking.
2. Limited Exceptions To Keeping Containers Closed at all Times in SAAs 
(40 CFR 262.15(a)(4))
    The previous regulations for generators accumulating hazardous 
waste in SAAs required containers accumulating hazardous waste to be 
kept closed, except when it is necessary to add or remove waste (Sec.  
262.34(c)(1)(i), which referenced the container regulations for interim 
status TSDFs in Sec.  265.173(a)). We proposed to modify this provision 
for SAAs, now found at Sec.  262.15, in order to allow containers of 
hazardous waste in SAAs to remain open under limited circumstances. 
These changes pertain only to containers accumulating hazardous waste 
in SAAs; it will not affect the requirements for container management 
at CAAs or interim status TSDFs. Specifically, we proposed that 
containers of hazardous waste in SAAs may be open when it is necessary 
either for the operation of equipment to which the SAA container is 
attached or to prevent dangerous situations, such as the build-up of 
extreme pressure or heat, because closing a container can be more 
dangerous than keeping it open temporarily in those situations. 
Stakeholders had identified situations where keeping SAA containers 
closed can interfere with the operation of equipment when the container 
is attached directly to the equipment via piping or tubing. 
Stakeholders had also identified situations in which closing a 
container can be more dangerous than keeping it open temporarily; for 
example, when the hazardous waste is very hot. Therefore, EPA proposed 
to modify the regulations to allow containers to be vented in such 
situations. In 2008, the Agency finalized these limited exceptions to 
the closed container requirement as part of the Academic Laboratories 
rule (subpart K) and thought they would benefit other generators as 
well.
    Nearly all commenters supported this proposed change. However, some 
state commenters were concerned the regulatory language was not 
sufficiently 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. However, these commenters 
thought the regulatory text should include language to make our intent 
clear. In response to these 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.'' \54\ 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. At this time, we are not 
extending this flexibility to containers accumulating in CAAs.
---------------------------------------------------------------------------

    \54\ Minnesota Pollution Control Agency, EPA-HQ-RCRA-2012-0121-
0232.
---------------------------------------------------------------------------

3. Clarify What Is Meant by ``Three Days'' (40 CFR 262.15(a)(6)(i))
    The previous SAA regulations at Sec.  262.34(c)(2) stated that a 
generator who accumulates either hazardous waste or acutely hazardous 
waste must, with respect to that amount of excess waste, comply 
``within three days'' with paragraph (a) of that section or other 
applicable provisions of the chapter. Over the years, the Agency was 
frequently asked what was meant by ``three days.'' As a result, the 
Agency proposed to amend the regulations to replace the term ``three 
days'' with ``three calendar days,'' as opposed to ``three business 
days'' or ``three working days.'' The Agency already clarified this 
term in a 2004 memo,\55\ which was based on preamble discussions from 
the

[[Page 85765]]

proposed and final SAA regulations.\56\ As stated in the memo, 
``Originally, the Agency had proposed to use 72 hours as the time limit 
but realized that determining when 72 hours had elapsed would have 
required placing both the date and time of day on containers. In the 
final rule the Agency switched to using three days so that generators 
only need to date containers that hold the excess of 55 gallons of non-
acute hazardous waste (or 1 quart of acute hazardous waste).'' The 
Agency was simply proposing to codify long-standing, existing policy on 
the issue of what ``three days'' meant, as it is used in the SAA 
regulations.
---------------------------------------------------------------------------

    \55\ Memorandum from Robert Springer, Director or EPA's Office 
of Solid Waste, to RCRA Regional Directors, ``Frequently Asked 
Questions About Satellite Accumulation Areas,'' March 17, 2004, RCRA 
Online 14703.
    \56\ Proposed rule: January 3, 1983 48 FR 118; Final rule: 
December 20, 1984; 49 FR 49569.
---------------------------------------------------------------------------

    Comments on this issue were mixed, with some commenters supporting 
the codification of the policy, while others preferred that we allow 
the term ``three days'' to mean ``three business days'' or ``three 
working days.'' Still others suggested that we take this opportunity to 
lengthen the time frame to 5, 7, or even 10 days. 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.'' \57\ 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.''
---------------------------------------------------------------------------

    \57\ The Boeing Company, EPA-HQ-RCRA-2012-0121-0133.
---------------------------------------------------------------------------

4. Providing a Maximum Weight for the Accumulations of Acute Hazardous 
Waste in Containers at SAAs (40 CFR 262.15(a))
    The SAA regulations impose maximum volumes of hazardous waste that 
may be accumulated in an SAA without a permit, or interim status, or 
complying with the central accumulation area standards for SQGs or 
LQGs. For non-acute hazardous waste, the maximum volume is 55 gallons. 
For acute hazardous waste, the maximum volume has been, until this 
rulemaking, 1 quart. When the SAA regulations were finalized in 1984, 
EPA explained that 55 gallons was selected for non-acute hazardous 
waste in part because it is the size of the most commonly used 
accumulation container.\58\ EPA also explained in that final SAA rule 
that 1 quart was chosen for acute hazardous waste because it is the 
volumetric equivalent of 1 kilogram of acute hazardous waste used 
elsewhere in the regulations \59\ and that commenters expressed 
opposition to using a weight measure. Since then, however, stakeholders 
have indicated that the 1-quart volume maximum is not a practical way 
to measure the accumulation of some wastes, particularly non-liquid 
acute hazardous wastes. Therefore, we proposed to add a weight 
measurement \60\ to the SAA regulations for the maximum accumulation of 
acute hazardous wastes. Specifically, we proposed that 1 quart or 1 
kilogram (2.2 pounds) of acute hazardous waste may be accumulated in an 
SAA. We proposed that generators that accumulate acute hazardous waste 
in SAAs would have the choice of whether to use 1 quart or 1 kilogram, 
but they would be required to identify which metric they choose. We did 
not propose to add a similar weight equivalent to the 55-gallon 
threshold for non-acute hazardous waste because stakeholders had not 
expressed a similar need; however, we did request comment on whether it 
would be useful to have a maximum weight for the accumulation of non-
acute hazardous waste in SAAs.
---------------------------------------------------------------------------

    \58\ December 20, 1984; 49 FR 49569-70.
    \59\ Though this is only a rough equivalent, as 1 quart is an 
English unit and 1 kg is a metric unit. Further, as one commenter 
noted, whether 1 quart (or liter) is equivalent to 1 kg depends on 
the density of the waste (Iowa State University, EPA-HQ-RCRA-2012-
0121-0099).
    \60\ As one commenter pointed out, 1 kg is more accurately a 
measurement of mass, not weight (Minnesota Pollution Control Agency, 
EPA-HQ-RCRA-2012-0121-0232).
---------------------------------------------------------------------------

    Although some commenters did not see the need for the additional 
flexibility for the accumulation of acute hazardous waste in SAAs, most 
commenters supported the change, with a minor revision. Specifically, 
commenters suggested that, instead of allowing a generator to choose 
which unit to use, we should specify in the regulations that the 1 
quart maximum for acute hazardous waste in an SAA should apply to 
liquids and the 1 kg maximum for acute hazardous waste in an SAA should 
apply to solids. We agree with these commenters and we are revising the 
final regulatory language for SAAs so that acute hazardous wastes that 
are liquids have a maximum volume of 1 quart, and acute hazardous 
wastes that are solids have a maximum mass of 1 kg (or 2.2 lbs). The 
maximum thresholds for acute hazardous wastes are not intended to be 
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 lb limit will 
be applied.
    In contrast, for non-acute hazardous waste, commenters indicated 
that the existing volumetric accumulation limit of 55 gallons for SAAs 
is sufficient and that it is not necessary to add a mass equivalent. 
Therefore, for non-acute hazardous waste, 55 gallons will remain the 
only unit for measuring maximum accumulation limits in SAAs. EPA 
continues to rely on its existing interpretation that at an SAA where 
more than one type of waste is accumulated, the total allowable 
accumulation is 55 gallons of hazardous waste--not 55 gallons per waste 
stream.\61\
---------------------------------------------------------------------------

    \61\ Memorandum from Robert Springer, Director or EPA's Office 
of Solid Waste, to RCRA Regional Directors, ``Frequently Asked 
Questions About Satellite Accumulation Areas,'' March 17, 2004, RCRA 
Online 14703.
---------------------------------------------------------------------------

    One commenter asked for clarification about whether the weight of 
the packaging (such as fully dispensed vials that once held P-listed 
pharmaceuticals) would have to be included in determining the maximum 
mass or volume of an acute hazardous waste in an SAA. 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.\62\ This would also be the case when 
calculating the maximum accumulation weight (mass) of acute hazardous 
waste in an SAA.
---------------------------------------------------------------------------

    \62\ Letter from Barnes Johnson, Director of EPA's Office of 
Resource Conservation and Recovery, to Charlotte A. Smith, 
PharmEcology Services, February 17, 2016, RCRA Online 14875.
---------------------------------------------------------------------------

5. Modifying the Language for When the Maximum Volume or Weight Is 
Exceeded in an SAA (40 CFR 262.15(a)(6))
    Previously, the regulation at Sec.  262.34(c)(2) stated that, when 
the maximum volumes are exceeded in an SAA, a generator ``must, with 
respect to that amount of excess waste, comply within three days with 
paragraph (a) of this section or other applicable provisions of this 
chapter.'' The Agency proposed to reword this regulation in order to 
more clearly state the generator's options for managing the materials 
that exceed the limit. The

[[Page 85766]]

proposed regulatory text stated that a generator who accumulates either 
non-acute hazardous waste or acute hazardous waste listed in Sec.  
261.31 or Sec.  261.33(e) in excess of the amounts listed in paragraph 
(a)(1) of this section at or near any point of generation must remove 
the excess from the satellite accumulation area within three calendar 
days either to (1) a central accumulation area, (2) an on-site interim 
status or permitted treatment, storage, or disposal facility, or (3) an 
off-site designated facility. The proposed regulatory text also stated 
that during the three-calendar-day period, the generator must continue 
to comply with paragraphs (a)(1)(i) through (iv) of this section and 
must mark the container(s) holding the excess accumulation of hazardous 
waste with the date the excess amount began accumulating. The Agency 
did not view this as a substantive change to the SAA regulations.
    We are finalizing this change, with two minor changes to address 
commenters' concerns. First, commenters pointed out that the proposed 
rewording of this section of the SAA regulations expands a generator's 
options for where the excess hazardous waste can be sent when the 
maximum volumes (or mass) are reached, but it removed the option that 
had originally existed to convert the SAA to a CAA and manage the 
hazardous waste in place. At the time of proposal, the Agency did not 
anticipate that generators would choose to convert SAAs into CAAs. 
However, one commenter pointed out that some generators do not have a 
CAA to move the waste to and therefore must manage the SAA as an CAA 
when volumes (or mass) are exceeded. In response to comments, 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. Second, in this section of the SAA 
regulations, as well as other sections of the SAA regulations, where we 
mention CAAs, we have inserted the citation for the CAA regulations.
    Other comments on this section of the SAA regulations were related 
to the phrasing of the previous SAA regulations that we did not propose 
to change. Specifically, the Connecticut Department of Energy and 
Environmental Protection (CT DEEP) ``believes that the revised language 
should not focus on the ``excess waste,'' but on the waste that was 
accumulated before the excess amount was generated. That is, the rule 
should require that the waste that was in storage before the generation 
of the ``excess waste'' be removed from the area, not just the ``excess 
waste.'' This would prevent situations in which only the ``excess 
waste'' is removed time and time again, leaving the remaining waste 
behind indefinitely.'' \63\ EPA agrees with CT DEEP and, during the 
development of the proposed rule, we sought to revise this aspect of 
the SAA regulations. We also agree with CT DEEP 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.'' 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 CT DEEP's 
description as a best management practice for removing hazardous waste 
from an SAA. One alternative suggested by Wisconsin Department of 
Natural Resources (WDNR) 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.'' \64\ 
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.
---------------------------------------------------------------------------

    \63\ Comment number EPA-HQ-RCRA-2012-0121-0178.
    \64\ Comment number EPA-HQ-RCRA-2012-0121-0206.
---------------------------------------------------------------------------

6. Preparedness, Prevention, and Emergency Procedures for SQGs and LQGs
    EPA is adding paragraphs (a)(7) and (a)(8) to the SAA regulations 
in Sec.  262.15 to clarify that the preparedness, prevention, and 
emergency procedures for SQGs and LQGs that are found in Sec.  
262.16(b)(8) and part 262 subpart M, respectively, extend to any SAAs 
on site, as well as CAAs. These specific changes to the SAA regulatory 
text were not proposed, although we did request comment, but are being 
added in the final rule in response to comments we received on the 
proposed addition of part 262 subpart M, which is discussed more 
thoroughly in section XI of this preamble.
7. Rescinding a Memo Regarding Accumulating Reactive Hazardous Waste 
Away From the Point of Generation
    In a memo dated January 13, 1988, EPA wrote that a storage shed 
that is outside of a building where a reactive hazardous waste (D003) 
is initially generated could be considered an SAA.\65\ According to the 
company's incoming letter to EPA, the Atlantic Research Corporation 
(ARC) ``manufactures solid rocket propellant. In it's [sic] operations, 
ARC generates waste chemicals which are accumulated in containers 
located in storage sheds outside of the buildings generating the 
materials. The waste chemicals are accumulated outside of the buildings 
for safety reasons due to the explosive nature of the work conducted.'' 
\66\
---------------------------------------------------------------------------

    \65\ Letter from Marcia E. Williams, Director of EPA's Office of 
Solid Waste, to Michael E. Young, Atlantic Research Corporation, 
January 13, 1988, RCRA Online 11317.
    \66\ Ibid.
---------------------------------------------------------------------------

    There were no proposed regulatory changes associated with this 
action; however, in the preamble to the proposed rule, EPA gave notice 
that it was proposing to revoke this interpretation. EPA agreed with 
ARC that in some instances it is safer to accumulate hazardous waste 
away from the initial point of generation, such as hazardous wastes 
that are explosive. However, in the preamble to the proposed rule, EPA 
reasoned that, because SAAs are subject to less stringent conditions 
than CAAs, it is not appropriate for such dangerous hazardous wastes to 
be stored in SAAs. Rather, EPA stated that if a generator accumulates 
hazardous waste that is so dangerous it needs to be accumulated away 
from the point of generation, it should be accumulated under the more 
rigorous accumulation standards for central accumulation areas.
    We received more than a dozen comments on this action. Several 
commenters supported the action to rescind the memo. Others, such as 
Pacific Northwest National Laboratory (PNNL), Utility Solid Waste 
Activities Group (USWAG) and Institute of Makers of Explosives (IME) 
supported it, but suggested that additional clarity was

[[Page 85767]]

needed.\67\ We intend to rescind the memo, as proposed, while 
addressing commenters' concerns. First, 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.''
---------------------------------------------------------------------------

    \67\ Comments EPA-HQ-RCRA-2012-0121-0078, EPA-HQ-RCRA-2012-0121-
0093 and EPA-HQ-RCRA-2012-0121-0126, respectively.
---------------------------------------------------------------------------

    Both PNNL and USWAG were concerned that EPA was implying 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. Additionally, PNNL was concerned 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.'' This was not our intent. 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.
    In its comments IME said it ``would have no objection to rescinding 
this memorandum so long as the agency allows accumulated SAA waste to 
be temporarily moved from the initial point of generation for purposes 
of complying with the regulations of other federal agencies. For 
example, a number of IME member companies collect hazardous waste in 
containers at SAAs. Regulations administered by the Bureau of Alcohol, 
Tobacco, Firearms and Explosives (``ATF'') require that these 
containers be moved to a magazine at the end of a shift . . . The 
containers are returned to the SAA at the start of the subsequent 
shift.'' \68\ EPA's SAA and CAA regulations do not prohibit generators 
from moving hazardous waste from the SAA's initial point of generation 
to a CAA (e.g. magazine) and back again to the SAA for further 
accumulation.
---------------------------------------------------------------------------

    \68\ Comment EPA-HQ-RCRA-2012-0121-0126.
---------------------------------------------------------------------------

8. Examples of the Meaning of ``Under the Control of the Operator''
    The previous SAA regulation at Sec.  262.34(c)(1) used the term ` 
''under the control of the operator,'' as do the revised SAA 
regulations being finalized at Sec.  262.15(a). EPA has not defined 
this term in the regulations, has not discussed it in preamble and 
discussed it only minimally in guidance letters.\69\ However, over the 
years, the Agency has received inquiries about what constitutes ``under 
the control of the operator.'' In an effort to assist generators to 
better understand this term and to foster improved compliance with the 
SAA provisions, the Agency provided examples in the preamble to the 
proposed rule. For example, EPA stated that it would consider waste to 
be ``under the control of the operator'' if the operator controlled 
access to an area, building, or room in which the SAA is located, such 
as with entry by access card, key or lock box. Another example EPA 
provided was if the operator accumulates waste in a locked cabinet and 
controlled access to the key, even if the cabinet is stored inside a 
room to which access is not controlled.
---------------------------------------------------------------------------

    \69\ Letter from Sylvia K. Lowrance, Director of the Office of 
Solid Waste to Mr. D.B. Redington, February 23, 1993, RCRA Online 
11728.
---------------------------------------------------------------------------

    Commenters were concerned that EPA is imposing new requirements on 
SAAs. 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 any 
regulatory text to define the term ``under the control of the 
operator.''
    A number of commenters provided helpful examples of what they 
believe constitutes ``under the control of the operator'' as it 
pertains to the SAA regulations. For example, the Oklahoma Department 
of Environmental Quality ``believes that the term ``Under the control 
of the operator'' has a much broader meaning than those examples in the 
proposed rules; e.g. a situation 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.'' \70\ One state commenting as part of the 
Association of State and Territorial Solid Waste Management Officials 
(ASTSWMO) ``believes as a general rule the SAAs in a manufacturing 
plant are not in locked cabinets or in locked rooms. They are generally 
in centralized locations along the assembly lines so all the employees, 
in several shifts, have access to them. SAA closest to the assembly 
line employees would be under their control and be at or near the point 
of generation. This state does not believe the regulated community 
would agree to buying several locked cabinets and placing them on the 
plant floor. It would be very inconvenient for the employees to run and 
look for the person with the keys to unlock the cabinet every time they 
need to place waste in the SAA. The sites have controlled access so the 
entire building would be under control of the operator.'' \71\ The 
District of Columbia (DC) Department of Energy and Environment suggests 
that `` 'under control of the operator' would not include situations 
where the waste cannot be seen unless the area is equipped with 24 hour 
video surveillance or 24 hour sensor surveillance. DC also suggests 
adding criteria such as: the area must be monitored daily by trained 
personnel and access to the area must be limited to prevent access by 
untrained personnel or visitors.'' \72\
---------------------------------------------------------------------------

    \70\ Comment Number EPA-HQ-RCRA-2012-0121-0182.
    \71\ Comment Number EPA-HQ-RCRA-2012-0121-0217.
    \72\ Comment Number EPA-HQ-RCRA-2012-0121-0248.
---------------------------------------------------------------------------

    In addition, one commenter referenced an EPA memo that discussed 
the term ``under control of the operator.'' \73\ EPA states: ``The 
condition that wastes accumulated under the satellite provision `be 
under control of the operator of the process generating the waste' is 
met provided the generator demonstrates that the personnel responsible 
for generating/or accumulating the waste have adequate control over the 
temporary storage of these wastes. The EPA recognizes that for many 
wastes, the person who first generates the waste may not be the same 
person responsible for the accumulation of all of these wastes; rather, 
another worker may have responsibility of overseeing the temporary 
storage of wastes.'' The Agency then states that ``the goal is that 
this temporary accumulation is performed responsibly and safely, with 
adequate oversight and control.'' On a related matter, commenters asked 
EPA to clarify whether an ``operator'' must be a single

[[Page 85768]]

individual. 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.\74\ However, the term operator does refer to an individual or 
individuals responsible for the equipment or processes generating the 
hazardous waste and does not refer to a company or entity as a whole.
---------------------------------------------------------------------------

    \73\ Letter from Sylvia K. Lowrance, Director of the Office of 
Solid Waste to Mr. D.B. Redington, February 23, 1993, RCRA Online 
11728.
    \74\ Memorandum from Robert Springer, Director or EPA's Office 
of Solid Waste, to RCRA Regional Directors, ``Frequently Asked 
Questions About Satellite Accumulation Areas,'' March 17, 2004, RCRA 
Online 14703.
---------------------------------------------------------------------------

    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.
G. Accumulation of Hazardous Waste by SQGs and LQGs on Drip Pads and in 
Containment Buildings
    As part of its reorganization efforts to improve the user-
friendliness of the hazardous waste generator regulations, the Agency 
proposed to consolidate the waste accumulation provisions for tanks, 
drip pads and containment buildings into one section. The Agency also 
proposed to include specific provisions for SQGs that may accumulate 
hazardous waste on drip pads and in containment buildings at Sec.  
262.16 (b)(4) and (5), respectively. Previously, the regulatory 
provisions for LQGs referred to drip pads and containment buildings, 
but these accumulation units were not specifically identified in the 
SQG provisions. Therefore, if an SQG desired to accumulate hazardous 
waste in these type units, they could only do so by complying with the 
more stringent LQG regulations. In the proposed rule, the Agency 
attempted to provide clarity by adding the regulations applicable to 
LQG drip pads and containment buildings (previously found at Sec.  
262.34 (a)(1)(iii) and (iv)) to provisions for SQGs accumulating 
hazardous waste in these units.
    With respect to the marking and labeling provisions for hazardous 
waste accumulated on drip pads and in containment buildings, the Agency 
proposed that SQGs and LQGs mark or label its waste accumulation units 
with the words ``Hazardous Waste'' in a conspicuous place easily 
visible to employees, visitors, emergency responders, waste handlers, 
etc. We also proposed that SQGs and LQGs use inventory logs, monitoring 
equipment, or records to: Identify the contents of the drip pad and 
containment building and its associated hazards; to identify the date 
upon which each period of accumulation begins; and keep inventory logs 
or records with the above information in close proximity to the drip 
pad and containment building.
1. Drip Pads
    a. What is EPA finalizing? The Agency is finalizing the regulations 
associated with the accumulation of hazardous waste on drip pads for 
SQGs and LQGs Sec.  262.16(b)(4) and Sec.  262.17(a)(3), respectively. 
This provision was previously found at Sec.  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 at least once every 90 days. Similarly, at 
closure, SQGs and LQGs must comply with Sec.  265.445(a) and (b), but 
not (c). Once the hazardous wastes are 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 accumulation 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.\75\
---------------------------------------------------------------------------

    \75\ See U.S. Environmental Protection 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).
---------------------------------------------------------------------------

    Additionally, consistent with this same guidance for wood 
preservers, EPA is clarifying in this final rule that VSQGs may 
accumulate hazardous waste on drip pads as long as they also comply 
with the technical standards of 40 CFR part 265 subpart W to ensure the 
drip pads are operated in an environmentally safe and responsible 
manner.\76\
---------------------------------------------------------------------------

    \76\ Ibid., 5-8
---------------------------------------------------------------------------

    b. What changed since proposal? 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 Sec.  
262.34 (a)(1)(iii). By incorporating this provision, the Agency will 
also address the requirements that generators

[[Page 85769]]

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.
    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.
    c. Major Comments. Commenters primarily focused on explaining how 
drip pad operations work and identifying the mistake the Agency 
inadvertently made in consolidating the waste accumulation regulations 
for all types of units. Commenters also requested that the Agency 
change the waste accumulation time for SQGs from 90 days to 180 days 
for wastes removed from the drip pad to be consistent with other waste 
accumulation unit time limits. This comment is also consistent with 
Agency guidance issued for drip pads.\77\ One commenter identified a 
number of problems associated with the marking and labeling of 
hazardous wastes on drip pads, including generators marking drip pads 
with the words ``Hazardous Waste'' in a conspicuous place easily 
visible to employees, visitors, emergency responders, waste handlers, 
etc, and identifying the hazards of wastes as being inappropriate. As 
discussed previously, the Agency has responded to these comments.
---------------------------------------------------------------------------

    \77\ Ibid, section 5-17.
---------------------------------------------------------------------------

2. Containment Buildings
    a. What is EPA finalizing? The Agency is finalizing the regulations 
that were proposed in Sec.  262.16 (b)(5) and Sec.  262.17 (a)(4) for 
hazardous wastes accumulated in containment buildings by both SQGs and 
LQGs, respectively.\78\ This provision states that an SQG or LQG 
accumulating hazardous waste in a containment building must comply with 
subpart DD of 40 CFR part 265, place its professional engineer 
certification that the building complies with the design standards 
specified in 40 CFR 265.1101 in the generator's files prior to 
operation of the unit, and maintain the following records by use of 
inventory logs, monitoring equipment, records, or any other effective 
means: (1) A written description of procedures to ensure that each 
waste volume remains in the unit for no more than 90 days, a written 
description of the waste generation and management practices for the 
site showing that they are consistent with respecting the 90 day limit, 
and documentation that the procedures are complied with; or (2) 
documentation that the unit is emptied at least once every 90 days. The 
Agency is also stating that these records must be readily available 
upon request from the implementing agency. These recordkeeping 
provisions were found under the marking and labeling provisions for 
containment buildings in the proposed rule.
---------------------------------------------------------------------------

    \78\ This regulatory text was originally found at Sec.  
262.34(a)(1)(iv).
---------------------------------------------------------------------------

    The Agency is also requiring SQGs and LQGs accumulating hazardous 
waste in containment buildings to label their containment building with 
the words ``Hazardous Waste'' located in a conspicuous place easily 
visible to employees, visitors, emergency responders, waste handlers or 
other persons on site and also provide an indication of the hazards of 
the waste using one of several methods described under Sec.  
262.16(b)(6)(i)(B) and (b)(6)(ii)(B)--Labeling of containers and tanks.
    b. What changed from proposal? Similar to the changes made for drip 
pads, the Agency moved the marking and labeling provisions to the waste 
accumulation section because these provisions more appropriately 
address how generators will meet the 90 day waste accumulation time 
limit. The Agency is also adding a provision to clarify that the 
records used to demonstrate that hazardous wastes have been removed 
within 90 days must be readily available upon request from the 
implementing agency.
    c. Major comments. There were very few comments about this 
provision. One commenter did not support the provision allowing SQGs to 
accumulate hazardous waste in containment buildings because these are 
complicated units requiring a fairly high level of knowledge and 
expertise to properly construct and operate. While the Agency agrees 
with this commenter conceptually, we have no basis to prohibit such an 
operation, such as damage cases from generators accumulating hazardous 
wastes in such units. Another commenter sought clarification to 
differentiate between containment buildings and manufacturing process 
buildings. 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. Also, the Agency maintained the 90 
day accumulation time period for any SQGs accumulating hazardous wastes 
in containment buildings consistent with what was proposed.

H. Special Requirements for Ignitable and Reactive Wastes for LQGs (40 
CFR 262.17(a)(1)(vi))

    Some generators, especially as those located in urban environments, 
have expressed their concern regarding the LQG provision requiring 
generators to place containers holding ignitable or reactive waste 15 
meters (50 feet) from the site's property line. In some cases, it may 
not be physically possible to meet this standard, particularly if the 
width of the site is 100 feet or less or when the generator's 
operations have expanded such that it no longer has the ability to 
accumulate ignitable or reactive waste at least 15 meters (50 feet) 
from the site's property line. Insurance companies and local fire 
departments often assist hazardous waste generators in minimizing their 
environmental hazards and liabilities, but site dimensions may 
sometimes physically prevent a generator from complying with this 
condition.
    The Agency proposed to allow LQGs to apply for a site-specific 
waiver from their local fire department if they are unable to meet the 
15 meter ignitable and reactive hazardous waste accumulation property 
line condition. This proposed change would require LQGs to obtain a 
written approval from a local fire department and keep the written 
approval in their records.

[[Page 85770]]

Additional details are discussed in section XI of the preamble of the 
proposed rule (80 FR 57979).
1. What is EPA finalizing?
    The Agency is finalizing the proposed regulation with a minor 
modification. The final regulation allows an LQG to apply for a site-
specific waiver from the authority having jurisdiction (AHJ) over the 
fire code if the LQG is unable to meet the 15 meter ignitable and 
reactive hazardous waste accumulation property line condition. If an 
LQG wants this waiver, they are required to obtain a written approved 
waiver from the AHJ who has the ability to determine a safe and 
practical location for the facility to store ignitable or reactive 
waste that is within 15 meters (50 feet) of the facility's property 
line. LQGs are then required to keep the written approval in their 
records.
2. What changed since proposal?
    EPA originally proposed that the facility contact their local fire 
department for the site-specific approval. While several commenters 
agreed that most fire departments are well qualified to approve this 
waiver, some commenters indicated that there may be some confusion as 
to who can approve this waiver. For example, some areas may require a 
designated official to interpret and enforce the fire code rather than 
the local fire department. In this case, the designated official will 
grant the approval. The Agency did not intend to restrict the ability 
of those who can grant this approval 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.
    To address these comments, the Agency changed the terminology from 
the ``fire department'' to the ``authority having jurisdiction (AHJ)'' 
over the fire code within the facility's state or locality. 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. 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 the more general term will ensure that regardless of who has 
the authority (local/state), the generator will be able to apply for 
the site-specific waiver. Furthermore, the Agency believes that the AHJ 
is well qualified at finding the most appropriate place to accumulate 
this waste and to determine that there is a sufficient level of 
protection for the facility and the surrounding community prior to 
issuing this approval.
    We requested comment on whether EPA should set conditions for the 
waiver, but determined from the commenters that the decision should be 
made on a site-specific basis dependent on the characteristics of the 
generator, the physical make-up of the site, and the surrounding area. 
EPA expects the AHJ to be sufficiently qualified to make a site-
specific determination for the waiver and consider relevant factors 
when making that decision, such as the length of time the hazardous 
waste can be accumulated, the amount of hazardous waste that can be 
accumulated, and any physical or technical controls. The AHJ should 
also consider any potential off-site conditions, such as the proximity 
to populated public areas (schools, hospitals, or playgrounds), off-
site sources of ignition, and the proximity to an adjacent property's 
storage area of ignitable or reactive waste.
3. Major Comments
    A few commenters recommended that EPA directly allow deference to 
locally applicable fire codes rather than requiring the generator to 
obtain an approval. EPA proposed a rule in 1984 that is similar to the 
commenters' recommendation. It would have amended the buffer zone 
requirements and adopted NFPA fire codes but the rule was never 
finalized.\79\ However, the 1984 proposal shows that adopting the fire 
code appears to be more complicated than the commenters realize due to 
the differences in terms and definitions. Furthermore, fire codes 
differ from locality to locality and some rural areas have no fire code 
or fire department. While EPA agrees that this recommendation would be 
easier to implement for the generator since it removes the approval 
process, at this time, the Agency cannot defer to local fire codes 
because the complexity involved may increase confusion and in some 
cases it may present a danger for the community or for the facility 
itself. However, the Agency may reevaluate this topic in future 
rulemakings.
---------------------------------------------------------------------------

    \79\ 49 FR 23290, June 5, 1984.
---------------------------------------------------------------------------

    The Agency took comment on whether owners and operators of 
permitted and interim TSDFs should also be able to apply for this 
approval. While several commenters agreed that TSDFs should be 
included, 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 
hazardous waste.\80\ Considering that parts of the permit process may 
be bypassed if owners/operators of TSDFs were allowed to apply for this 
waiver, EPA concludes that it is not appropriate to include TSDFs in 
this waiver.
---------------------------------------------------------------------------

    \80\ 40 CFR part 270.
---------------------------------------------------------------------------

    Effect of the Reorganization: This section is affected by the 
reorganization. The special requirements for ignitable and reactive 
waste were found at 40 CFR 265.176.

I. LQG Closure Regulations (40 CFR 262.17(a)(8))

    In an effort to improve the clarity and understanding of the 
closure regulations for LQGs, as well as to strengthen M. he closure 
regulations to improve environmental protection, the Agency proposed 
three changes to the closure provisions for LQGs previously found at 
Sec.  262.34(a)(1)(iv)(B).
    First, EPA proposed to consolidate the closure regulations for LQGs 
accumulating hazardous waste at Sec.  262.17(a)(8). EPA believed the 
organization of the closure regulations previously found at Sec.  
262.34(a)(1)(iv)(B) (which referred to various closure requirements in 
part 265) was confusing and difficult to follow. The proposed 
consolidation included both the facility-wide general performance 
requirements found at Sec. Sec.  265.111 and 265.114 for hazardous 
wastes accumulated in containers, tanks, drip pads, and containment 
buildings, and the unit-specific requirements found at Sec.  265.197 
for tanks, Sec.  265.445 for drip pads and Sec.  265.1102 for 
containment buildings.
    Second, EPA proposed to strengthen the closure regulations for LQGs 
accumulating hazardous waste in containers in central accumulation 
areas that plan to stop hazardous waste accumulation by requiring them 
to meet the same type of closure regulations that apply to tanks, drip 
pads and containment buildings, including those situations where a 
generator is not able to demonstrate that its hazardous waste, 
hazardous constituents, leachate, contaminated run-off, or hazardous 
waste decomposition products can be practicably removed or 
decontaminated (i.e., cannot ``clean close''). The Agency demonstrated 
the need for closure requirements to apply to LQGs accumulating 
hazardous waste in containers as discussed in detail in the

[[Page 85771]]

preamble to the proposed rule at 80 FR 57955 and provided in the docket 
a list of Superfund damage cases to the environment caused by 
generators who accumulated hazardous wastes in containers and abandoned 
these facilities.
    Third, EPA proposed to require an LQG to notify EPA or the 
authorized state using EPA Form 8700-12 at least 30 days prior to 
closing the generator's facility or when the generator closes a unit 
accumulating hazardous waste. Additionally, EPA proposed that an LQG 
notify EPA or its authorized state within 90 days after closing the 
facility or the unit accumulating the hazardous waste. This 
notification would state the LQG had clean closed or failed to clean 
close and therefore, must close as a landfill.
1. What is EPA finalizing?
    Based on review and evaluation of comments, the Agency is 
finalizing the following provisions associated with the closure 
regulations for LQGs. First, we are consolidating the closure 
regulations at Sec.  262.17(a)(8). These regulations consist of two 
components: Closure of a waste accumulation unit, such as a tank system 
and container accumulation area, and closure of a generator's facility.
    When closing a waste accumulation unit at Sec.  262.17(a)(8), a 
generator may either elect to place a notice in its operating record 
that identifies the unit they are closing and not conduct the formal 
closure performance standards of Sec.  262.17(a)(8)(iii) in the case of 
a container, tank or containment accumulation unit, or Sec.  
262.17(a)(8)(iv) in the case of a drip pad unit, until the facility 
closes, or they can formally perform the closure provisions in Sec.  
262.17(a)(8)(ii)(B) through Sec.  262.17(a)(8)(iv) including clean 
closure performance standards and notification to EPA that the facility 
has closed that accumulation unit within 90 days of closing the unit.
    When closing the facility, the generator would be required to meet 
the notification standards of Sec.  262.17(a)(8)(ii) and performance 
standards of Sec.  262.17(a)(8)(iii) for container, tank and 
containment building units, and Sec.  262.17(a)(8) (iv) for drip pad 
units. The performance standards of Sec.  262.17(a)(8)(iii) include 
four paragraphs. The first two paragraphs incorporate the closure 
performance requirements at Sec. Sec.  265.111 and 265.114 when an 
LQG's waste accumulation unit or facility closes. The third paragraph 
addresses what must be done with any hazardous wastes generated as a 
result of an LQG clean closing its waste accumulation areas. The fourth 
paragraph addresses the situation when an LQG that has accumulated 
hazardous waste in a container, tank or containment building waste 
accumulation area cannot meet the closure performance standards or 
clean close (i.e., situations where contaminated soils and wastes 
cannot be practicably removed or decontaminated).
    In addition, LQGs with drip pads must continue to comply with the 
unit-specific closure performance standards found at Sec.  265.445(a) 
and (b) \81\ and the general closure requirements now found at Sec.  
262.17(a)(8)(iii)(A)(1) and (3). In the proposed rule, the Agency 
consolidated drip pad closure requirements with tanks and containment 
buildings and in the process, incorrectly modified the closure 
requirements. In this final rule, Sec.  262.17(a)(8)(iv) has been added 
to specifically address the closure requirements for drip pads and 
correct the modification.
---------------------------------------------------------------------------

    \81\ See Generator Closure Requirements, RCRA/Superfund Hotline 
Monthly Report, December 1998, EPA530-R-98-005.
---------------------------------------------------------------------------

    As mentioned previously, LQGs need to notify EPA or their 
authorized state using the Site ID form (EPA Form 8700-12) when they 
are closing their facility. Specifically, LQGs must notify EPA or the 
authorized state using the Site ID form (EPA Form 8700-12) at least 30 
days prior to closing their facility, and also notify EPA or the 
authorized state within 90 days after closing the facility. This second 
notification using form 8700-12 would state that the LQG has either met 
the closure performance standards of Sec.  262.17(a)(8)(iii) or failed 
to meet such standards, in which case they must notify that they are 
closing as a landfill. In the case of LQGs with drip pads, they would 
either notify using form 8700-12 they had met the closure performance 
standards of Sec.  265.445(a), or if they failed to meet those 
standards, notify that they must close in comply with the requirements 
of Sec.  265.445(b). In response to comments, the Agency is allowing 
LQGs to request additional time to clean close at Sec.  
262.17(a)(8)(ii)(C). However, the LQG must notify EPA using form 8700-
12 or its authorized state within 75 days after closing their site to 
request an extension and provide an explanation as to why the 
additional time is required.
    Third, the Agency is clarifying that closure requirements do not 
apply to satellite accumulation areas at Sec.  262.17(a)(8)(v). While 
the Agency did not receive any specific comments on the scope of 
closure requirements, we are clarifying that the closure requirements 
do not apply to satellite accumulation areas.
2. What changed since proposal?
    The Agency simplified and clarified the closure process. First, EPA 
is providing LQGs a choice for when they close a hazardous waste 
accumulation unit (i.e., CAA, tank, containment building, drip pad): 
(1) Put a notice in the operating record stating they closed the 
accumulation unit, or (2) follow the closure procedures in Sec.  
262.17(a)(8)(ii)-(iv). The Agency is making this change in the final 
rule based on information from commenters who described normal 
operating situations where accumulation units close and reopen, or are 
relocated to another part of the site. The Agency did not want the 
accumulation unit closure provisions to interfere with facility 
operations and the generation and accumulation of hazardous wastes, 
especially as the Agency is aware of situations where hazardous wastes 
are placed in containers that are mobile storage devices. However, when 
closing their overall facility, generators must ensure all remaining 
hazardous wastes they have generated and accumulated are removed from 
their facility and clean close per Sec.  262.17(a)(8)(iii) (i.e., 
minimize the need for further maintenance by controlling, minimizing, 
or eliminating the post-closure escape of hazardous waste, hazardous 
constituents, leachate, contaminated run-off, or hazardous waste 
decomposition products to the ground or surface waters or to the 
atmosphere to the extent necessary to protect human health and the 
environment).
    Second, rather than have LQGs notify EPA or an authorized state 
every time they close a waste accumulation unit, they must now notify 
only when they are closing their facility. The Agency received many 
comments that providing a notification every time a waste accumulation 
unit is closing, particularly for container waste accumulation units, 
is impractical. Commenters noted that opening, closing and reopening 
waste accumulation units, even temporarily, occurs periodically and the 
Agency does not want to interfere with the operations of the facility.
    Third, in finalizing the closure performance standards Sec.  
262.17(a)(8)(iii), the Agency has reverted back to the existing 
regulatory text previously found at Sec.  265.197(a) for closure of 
tanks and Sec.  265.1102(a) for closure of containment buildings for 
purposes of consistency, and because one of the primary purposes of 
this

[[Page 85772]]

section is to consolidate the closure regulations found in different 
parts of the program.
    Finally, the Agency separated the closure performance requirements 
for drip pads because they are different than those of containers, 
tanks and containment buildings.
3. Major Comments
    Many commenters supported the consolidation of closure requirements 
to make them more user-friendly and easier to comply with. Many 
commenters did not support EPA's proposal to require notification every 
time a waste accumulation area was closing and requiring LQGs to clean 
close every time a waste accumulation area closed. In both cases, 
commenters stated the proposed changes were inefficient, impractical 
and/or unnecessary. One commenter, representing several generator 
organizations, did not believe closure standards should be identified 
as conditions for exemption. However, EPA notes that closure standards 
are a condition for exemption under the existing RCRA program. See 
section IX.A for a more detailed discussion of the distinction between 
conditions for exemption and independent requirements. This commenter 
also recommended that the concept proposed in Sec.  
262.17(a)(8)(ii)(A)(1) that closure should be undertaken ``to the 
extent necessary to protect human health and the environment,'' should 
be moved up to the introductory paragraph since this is an important 
risk-based concept applicable to all of the requirements in Sec.  
262.17(a)(8)(ii)(A), not just to subparagraph (1). The Agency believes 
the regulations being finalized already take into account a risk-based 
concept because ``minimizing the need for further maintenance by 
controlling, minimizing, or eliminating, to the extent necessary to 
protect human health and the environment'' is a risk-based standard. 
Hence, we have not finalized this change.
    This same commenter expressed serious concerns that this proposal 
was a major departure from existing regulations regarding the clean 
closure of container central accumulation areas and specifically, the 
requirement that if the facility could not clean close, then the 
generator must close as a landfill with all the associated requirements 
(e.g., installing groundwater monitoring wells upgradient and 
downgradient from the container area; installing monitoring wells for 
30 years or longer during a post-closure care groundwater monitoring 
program, etc.)
    The Agency agrees that this is a new provision. However, as 
discussed in the proposal (80 FR 57955), many Superfund removal actions 
over the years have resulted from generators who failed to clean close 
their hazardous waste container accumulation areas. The EPA believes 
that facilities accumulating hazardous wastes in containers should have 
to close as a landfill if they cannot clean close like all other LQGs 
accumulating hazardous waste. The inability to clean close would 
indicate major environmental problems have occurred at the generator's 
facility. If so, the responsibility falls on the generator to address 
the potential contamination just as a generator would address any 
problems that resulted from its accumulated hazardous wastes in tanks, 
drip pads, or containment buildings. 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., Generally, if a LQG has been managing its hazardous waste in 
accordance with the LQG provisions including proper accumulation 
standards and spill clean-up, then clean closure will consist of 
removing the containers from the accumulation area. EPA anticipates 
this will be the case in most situations for container central 
accumulation areas. The Agency has determined that clean closure 
requirements should apply equally to all hazardous waste accumulation 
areas.
    Finally, one commenter pointed out that the proposal to consolidate 
the closure standards for drip pads with tanks and containment 
buildings would modify existing drip pad closure requirements. The 
Agency acknowledges this was an inadvertent mistake and has reverted 
back to the existing subpart W requirements of part 265. However, for 
purposes of consolidation and consistency, LQGs that accumulate 
hazardous waste on drip pads and that are closing their facility must 
still comply with the notification and waste management provisions 
found at Sec.  262.17(a)(8)(ii) and (a)(8)(iii)(A)(3), as well as 40 
CFR part 265 subpart W.
    Effect of the Reorganization: This section is affected by the 
reorganization. The closure requirements were previously found in Sec.  
262.34(a)(1)(iv)(B). The reorganization is discussed in section VI of 
the preamble.

J. Documentation of Inspections of Waste Accumulation Units

    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.
    The Agency requested comment on modifying these provisions to 
require documentation of inspections for these waste accumulation units 
to emphasize the importance of these inspections in preventing releases 
into the environment and to provide a measure of accountability that a 
generator's inspection of its containers, tanks or drip pads actually 
took place when required. Currently, the only way an inspector can 
determine whether the required inspections actually occurred is to 
inspect a generator site at the same time that the inspection is 
supposed to occur, or conduct an inspection within one week of the 
first inspection--assuming the inspector knew when the first inspection 
actually occurred. Both situations have low probabilities of occurring.
    As part of the proposed rule, the Agency noted that many states 
already require generators accumulating hazardous waste in waste 
accumulation units to maintain records of their inspections. Many of 
these states provide templates for generators to use to assist them in 
recording the results of their inspections. Similarly, EPA stated the 
burden imposed upon generators to record the results of its inspections 
would not be significant, particularly if generators use a template to 
document the results of inspections.
    The Agency also stated that documenting the results of these 
inspections is an important best management practice for generators to 
use not only to prevent any releases, but also to identify situations, 
such as damaged containers, tanks or drip pads that could lead to a 
potential release to the environment.
1. What is EPA finalizing?
    The Agency is not moving forward at this time to require SQGs and 
LQGs to

[[Page 85773]]

document those situations identified earlier where documentation of 
inspections is currently not required. At this time, the Agency 
believes further analysis and evaluation is required before a final 
decision can be made. However, as already noted, the Agency believes 
this 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.
2. Major Comments
    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. Among the reasons commenters cited for supporting 
documentation of inspections included: Such a 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, and in documenting that no releases occurred within the 
unit; and documentation will result in greater protection against 
hazardous waste releases into the environment.
    Commenters who opposed this requirement stated that adding 
additional recordkeeping requirements shifts the focus away from actual 
storage practices to secondary recordkeeping practices; there is not 
sufficient justification for imposing this requirement; there is no 
added benefit because accumulation units in poor condition have 
obviously not been regularly inspected; and the Agency would be better 
served by increasing outreach to small generators to increase awareness 
of the inspection requirement.

K. Allowing VSQGs To Send Hazardous Waste to LQGs Under the Control of 
the Same Person (40 CFR 262.14(a)(5)(viii) and 262.17(f))

    EPA is finalizing the proposed provision to allow VSQGs to send 
their hazardous waste to an LQG that is under the control of the same 
person, as defined at Sec.  260.10, provided both the VSQG and LQG 
comply with specified conditions.
1. Introduction
    Before the revisions in this rulemaking, under the regulations at 
Sec.  261.5(f)(3) for acute hazardous waste, and Sec.  261.5(g)(3) for 
non-acute hazardous waste, a VSQG was allowed to either treat or 
dispose of its hazardous waste in an on-site facility or ensure 
delivery to an off-site treatment, storage, or disposal facility, which 
included RCRA-permitted hazardous waste facilities, interim status 
hazardous waste facilities, municipal solid waste facilities, non-
municipal non-hazardous waste facilities, recycling facilities, and 
universal waste handlers. The previous VSQG regulations did not allow a 
generator to send its hazardous waste off site to another generator 
unless the receiving generator had a storage permit or was otherwise 
one of the types of facilities cited previously. Thus, persons looking 
to reduce their overall environmental liability across multiple 
facilities were prohibited from managing their VSQG hazardous waste at 
one or more of their LQG facilities without first obtaining a permit or 
complying with the interim status standards.
    EPA determined that providing the option for VSQGs to send their 
hazardous waste to an LQG that is under the control of the same person 
will improve the management of that hazardous waste for the following 
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.
    In addition, whereas LQGs have up to 90 days to accumulate 
hazardous waste in compliance with all the LQG conditions for exemption 
without having to obtain a RCRA storage permit or comply with all the 
other standards otherwise applicable, VSQGs may accumulate up to 1,000 
kilograms of non-acute hazardous waste or up to 1 kilogram of acute 
hazardous waste or up to 100 kilograms of residues from the cleanup of 
a spill of acute hazardous waste without any time constraint. 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.
    Finally, this new provision will give companies flexibility in 
allocating labor and resources required to manage the company's total 
quantity of hazardous waste generated, as the company is now allowed to 
consolidate its hazardous waste from VSQG facilities at its LQG 
facilities.
    EPA has received requests over the years from industry to amend the 
regulations to allow VSQGs to send their hazardous waste to LQGs for 
consolidation. Many of the commenters, including state agencies, the 
generator industry, and the waste management industry, supported adding 
this option to the regulations. 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 on 
site, reducing on-site health and safety risks and also lowering the 
potential for both accidental releases

[[Page 85774]]

and the temptation for improper disposal of larger amounts.\82\
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    \82\ Minnesota Pollution Control Agency (MPCA), Comment Number: 
EPA-HQ-RCRA-2012-0121-0232.
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    Adding the consolidation option in the regulations will enable 
generators to employ greater control over the management of their 
hazardous waste, thereby resulting in improved efficiency and reduced 
liability for the generator. Commenters noted numerous examples where 
VSQGs and LQGs under the same ownership may take advantage of the new 
consolidation provision. For example, Army National Guard and Reserve 
units that may be VSQGs can send their hazardous waste to an active 
Army base that is an LQG. The same situation applies to Air Force, 
Navy, and Marine Corps reserve units as well. Additionally, many 
universities commented that they supported this provision. Often, 
individual laboratory buildings qualify as VSQGs. Allowing different 
laboratory buildings within a university or industrial environment that 
are VSQGs to send their hazardous waste to another university or 
industrial entity that is an LQG under the same control will provide 
both economic and environmental benefits. Furthermore, utilities, 
retailers, and remote oil and gas production facilities also represent 
examples of industrial sectors that indicated they expect to benefit 
from the intra-company transfer of hazardous waste from VSQGs to LQGs.
2. What is EPA finalizing?
    The Agency is finalizing the provision that allows a VSQG to send 
its hazardous waste to an LQG that is under the control of the same 
person, provided specified conditions are met.
    a. Scope. EPA is finalizing its proposal to amend the regulations 
under the previous regulatory framework at Sec.  261.5(f)(3) and (g)(3) 
to allow VSQGs to send hazardous waste to an LQG under the control of 
the same person. ``Person'' is defined in Sec.  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. For the purposes of this section, 
``control'' means the power to direct the policies of the generator, 
whether by the ownership of stock, voting rights, or otherwise, except 
that contractors who operate as generators on behalf of a different 
person shall not be deemed to ``control'' such generators. EPA notes 
that these are the same key terms used in the exclusion from the 
definition of solid waste 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). 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'' 
as outlined above.
    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. The majority of commenters, 
including most of the states, supported limiting the VSQG consolidation 
option to facilities under the control of the same person at this time 
for similar reasons.
    EPA is also finalizing the proposed requirements for certain 
labeling and marking standards for VSQG waste being transferred to LQGs 
under the control of the same person under this provision. Note that 
aside from these conditions, the same standards for management of VSQG 
waste apply to materials going to an LQG under this provision as to 
other VSQG waste, including the exemption from the requirement to ship 
using a hazardous waste manifest. However, DOT shipping requirements do 
still apply as appropriate.
b. Conditions for Exemption
Condition for Exemption for VSQGs
    As part of this provision, VSQGs are required to meet the following 
conditions for exemption, found at Sec.  262.14(a)(5)(viii).
    Under control of the same person. As described previously, the VSQG 
and the LQG must be under control of the same person, according to the 
definition in Sec.  260.10.
    Labeling and marking of containers. 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 
1910.1200; 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 
of this preamble.
Conditions for Exemption for LQGs
    EPA is finalizing the following conditions for exemption for LQGs 
receiving hazardous waste from VSQGs under the control of the same 
person, all found at Sec.  262.17(f).
    Notification. LQGs receiving hazardous waste from VSQGs under the 
control of the same person must submit a notification to EPA or their 
authorized state using EPA Form 8700-12 (i.e., the Site Identification 
(Site ID) form) at least 30 days prior to receiving the first shipment 
of hazardous waste from the VSQG. LQGs are required to identify on the 
Site ID form the name(s), site address(es), and contact information for 
the VSQG(s) that will be transferring hazardous waste to the LQG. LQGs 
are also required to submit an updated Site ID form within 30 days 
should the name or site address for the VSQG change. Since the process 
to update the Site ID form to reflect this final rule will not be 
completed by the time some facilities are required to notify, EPA will 
create an interim procedure for submitting notifications for the 
regulated community to aid their compliance efforts with the new 
consolidation provision and publish it on the EPA Web site.
    Notification in this instance serves to inform the regulatory 
authorities of which LQGs are receiving hazardous waste from which 
VSQGs under the control of the same person. The Agency has determined 
notification is necessary in order to communicate to 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

[[Page 85775]]

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 recently made available an electronic interface for states 
and the regulated community to use to submit Site ID forms 
electronically, which will further reduce burden on LQGs. Facilities 
should check with their states regarding whether and when their state 
will use EPA's electronic submittal process.
    Recordkeeping. LQGs are required to maintain records for three 
years from the date the hazardous waste was received from the VSQG with 
the following information:

--The name, site address, and contact information for each VSQG; and
--A description of each waste shipment received from the VSQG, 
including the quantity and the date the hazardous waste was received.

    Recordkeeping is necessary to ensure the VSQG and LQGs operating 
under the consolidation provision are meeting the conditions of the 
provision, including 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.
    Labeling and marking of containers. The Agency is requiring that 
LQGs comply with the same labeling and marking conditions for exemption 
under Sec.  262.17(a)(5), including the date accumulation started 
(i.e., the date the hazardous waste was received from the VSQG). (Note: 
These are the same standards that VSQGs must comply with in labeling 
and marking containers that they send to LQGs, as discussed previously, 
with the exception of the accumulation start date.) 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.
    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.
    Waste management. Under the finalized consolidation provision, an 
LQG is required to manage all incoming hazardous waste from a VSQG in 
compliance with the regulations applicable to its LQG generator 
category. In other words, there will be no difference in how the 
hazardous waste from a VSQG is managed relative to the management of 
the LQG's own hazardous waste, although hazardous waste from a VSQG is 
not eligible for management under the satellite accumulation 
regulations (Sec.  262.15) (That is, VSQG waste must be placed in a 
central accumulation area or immediately shipped off site from the 
LQG.)
    Biennial Reporting. An LQG must also report the hazardous waste it 
receives from VSQGs on its biennial report, as required under Sec.  
262.41. EPA will include a new source code in the biennial report 
instructions that LQGs will use to identify the hazardous waste 
received from a VSQG (to differentiate from hazardous waste the LQG 
generates on site). Generators are required to 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. This 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.
    c. No maximum limit of hazardous waste LQGs receive from VSQGs. 
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.
    d. Enforcement. The conditions in this final rule that allow VSQGs 
to send their hazardous waste to an LQG under the control of the same 
person are necessary to ensure protection of human health and the 
environment. Failure to meet one or more of the conditions could lead 
to potential mismanagement of the hazardous waste, potentially 
resulting in a release of hazardous waste or hazardous waste 
constituents to the environment. Persons taking advantage of the 
consolidation provision who fail to meet one or more of the conditions 
for exemption would lose their exemption from a permit, interim status, 
and operating requirements and be subject to an enforcement action 
under RCRA section 3008 for violations of the applicable requirements 
in part 264 through 268, 270, and the notification requirements of 
section 3010 of RCRA. EPA and authorized states also have the authority 
to cease specific transfers of hazardous waste from VSQGs to an LQG in 
the context of an enforcement action. EPA also notes that failure on 
the part of the LQG to meet one of the conditions for exemption would 
not mean that the VSQG is subject to a permit, interim status, and 
operating requirements, provided that the VSQG met its conditions for 
exemption and vice versa.
    e. Interstate shipments. Under RCRA, authorized state programs may 
be more stringent than the federal program and thus states may choose 
not to adopt the finalized consolidation provision allowing VSQGs to 
send their hazardous waste to an LQG under the control of the same 
person. In the case of interstate shipments where a VSQG wants to 
transfer its waste to an LQG located in a different state than the 
VSQG, the VSQG must ensure that both states have adopted the provision 
(including the exemption from the requirement to ship using a hazardous 
waste manifest). Additionally, if a VSQG wants to transit its waste 
through states that have not adopted the consolidation provision, EPA 
recommends that generators contact any transit states through which

[[Page 85776]]

the hazardous waste will be shipped to ascertain their policy about 
such shipments.
2. What changed since proposal?
    a. Labeling and Marking of Containers. EPA proposed that the VSQG 
would label its containers with the words ``Very small quantity 
generator hazardous waste.'' However, several commenters stated that 
having two ``systems'' of labeling was confusing 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. 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 the other 
labeling requirements) are sufficient under the consolidation 
provision.
    In addition, we are not requiring the following marking and 
labeling: (1) Other words that identify the contents of the containers 
and (2) the applicable hazardous waste number(s) (EPA hazardous waste 
code). First, we are not requiring ``the contents'' of the container to 
be consistent with the finalized marking and labeling requirements for 
all generators as discussed in section IX.E.1. In addition, we are not 
requiring the applicable hazardous waste number(s) be included on the 
label because we have determined that it is not necessary at this point 
in the management of the VSQG waste. Due to the fact that LQGs do not 
need to add the hazardous waste codes until the waste is ready to be 
shipped off site to a designated RCRA facility for subsequent 
management, we determined that was also the best option for the VSQG 
waste being consolidated at an LQG. Therefore, the VSQG waste only 
needs to be labeled with the words ``Hazardous Waste'' and an 
indication of the hazards of the contents when it is sent for 
consolidation at an LQG under the same control. Once at the LQG, the 
date the accumulation starts (i.e., the date the hazardous waste was 
received from the VSQG) must be added to the label. Of course, if the 
VSQG wants to include words that identify the contents of the 
containers and/or the applicable EPA hazardous waste number(s) 
(hazardous waste codes), that is encouraged as discussed in the general 
marking and labeling provisions in this preamble (section IX.E.1). Due 
to the fact that the VSQG and the LQG are under the control of the same 
person, EPA assumes that the two parties will consult and determine the 
most appropriate labeling for the safe management of their hazardous 
waste that meets the minimum requirements laid out in the regulations.
    b. LQG 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. Several commenters recommended only 
requiring notification of changes to the site name and/or address of 
the VSQG. EPA agrees that if the site name and address remains the 
same, it is not necessary for the LQG to notify again simply because 
the contact information for the VSQG changes. 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.
3. Major Comments
    a. Expanding scope of the provision. EPA also requested comment on 
whether to establish a process that would allow a generator (whether 
VSQG or LQG) to request approval from its EPA Regional Administrator or 
the authorized state to transfer hazardous waste from VSQGs to LQGs 
that are not under the control of the same person. Additionally, the 
Agency also requested comment on a variation that would allow LQGs to 
consolidate VSQG hazardous waste from VSQGs that are not under the 
control of the same person by submitting a request for approval. The 
difference under this variation was that after 60 days, the generator 
could start consolidating regardless of whether it had heard back from 
the implementing agency.
    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.
    b. Effect on existing state programs. EPA received comments from 
the retail sector suggesting that, under the existing RCRA regulations, 
VSQG hazardous waste can be consolidated at any intermediate location, 
as long as the VSQG ensures ultimate delivery to an acceptable facility 
listed under the regulations. However, EPA does not agree with that 
characterization of the existing regulations and has expressed that in 
writing as far back as 1987.\83\ 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 
Sec.  261.5(f)(3) and now found at Sec.  262.14(a)(4).
---------------------------------------------------------------------------

    \83\ See RCRA Hotline Monthly Report Question, April, 1987, RCRA 
Online 12894.
---------------------------------------------------------------------------

    In addition, other commenters noted that certain states already 
operate consolidation programs that go beyond what EPA is finalizing in 
this document. 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.\84\ The Utility Solid Waste Activities Group 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.\85\
---------------------------------------------------------------------------

    \84\ Minnesota Pollution Control Agency (MPCA), Comment Number: 
EPA-HQ-RCRA-2012-0121-0232.
    \85\ The Utility Solid Waste Activities Group, Comment Number: 
EPA-HQ-RCRA-2012-0121-0093.
---------------------------------------------------------------------------

    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 Sec.  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.

[[Page 85777]]

    Effect of the Reorganization: This section is affected by the 
reorganization. The reorganization of the generator regulations moved 
the conditions for VSQGs from Sec.  261.5 to Sec.  262.14 and the 
conditions for LQGs from Sec.  262.34 to Sec.  262.17. The 
reorganization is discussed in section VI of this preamble.

L. EPA Identification Numbers and Re-notification for SQGs and LQGs (40 
CFR 262.18)

    Under existing RCRA regulations, SQGs and LQGs are required to 
notify EPA using form 8700-12 (Site ID form) in order to obtain an EPA 
identification number. The Site ID form contains such information as 
the name and address of the generator, the industrial sector in which 
it belongs (i.e., NAICS code), name of a facility contact, what type of 
waste activities take place at the facility, etc. Without such an 
identification number, a generator cannot treat, store, dispose of, or 
transport its hazardous waste. Subsequent to obtaining an EPA ID, there 
is no federal regulation requiring SQGs or LQGs to re-notify EPA to 
update their site information or confirm the information remains 
accurate. However, LQGs do update their site information every two 
years as part of the biennial report, as the Site ID form is part of 
the biennial report submission.
    The 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. 
This is because a one-time notification 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.
    To address these issues, the Agency proposed several changes to the 
RCRA SQG and LQG site-identification and re-notification processes. 
First, we proposed to add an independent requirement for LQGs that 
reflects existing processes by which LQGs already submit Site ID forms 
as part of the biennial reporting process. Second, we 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 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.
1. What is EPA finalizing?
    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.
    In addition, EPA is finalizing in Sec.  262.18(d)(2) the 
formalization of LQGs re-notifying using EPA Form 8700-12, the RCRA 
Site Identification form, as part of the LQG's biennial report required 
under Sec.  262.41.
    Note that the changes to the regulatory text for Sec.  262.18 in 
this action take into account the revisions being made as a part of the 
``Hazardous Waste Export-Import Revisions'' Final Rule (Docket ID EPA-
HQ-RCRA-2015-0147; FRL-9947-74-OLEM), including the reference in Sec.  
262.18(e) for recognized traders.
2. What changed since proposal?
    The Agency, in response to comments, increased the interval for SQG 
re-notifying from every two years to every four years. A number of 
commenters responded to our requests for alternative timing for SQG 
notification. Significantly, we heard from a number of states as well 
as the RCRAInfo Expert Group (a group of EPA and state RCRAInfo data 
experts), that keeping the SQG notifications on the same cycle as the 
biennial report is too burdensome and not practical given the large 
volume of data they receive for the biennial report. These commenters 
suggested that we reduce the frequency of SQG notifications from two 
years to every four years and stagger it from the timing of the 
biennial report. The EPA agrees with these experts and, as described 
previously, is finalizing the SQG re-notification requirement with 
these changes as recommended.
    There was varied support from commenters on alterative timing for 
SQG notification. Some commenters supported keeping the timing to every 
two years both on the biennial report cycle and off. EPA agrees there 
is general awareness in the generator population of when the biennial 
report is due, which could make it easier for SQGs to comply with this 
new requirement. Also, the Agency understands that for companies or 
facilities that may have multiple sites that are LQGs and SQGs, it may 
be difficult to keep track of one schedule for LQGs and the biennial 
report and another for the SQG re-notification. However, the Agency 
decided to defer to the comments regarding how keeping SQG re-
notification timing on the same cycle as the biennial report would 
overwhelm state and EPA workload capacity to keep up with the data 
submissions. In order for the data to be usable and the collection 
effort worthwhile, the Agency must be able to ensure it is entered into 
our system correctly and we believe the four year cycle alternating 
with the biennial report will best address capacity issues.
    Both state and industry commenters pointed out that many states 
already require annual re-notification by LQGs and some for SQGs as 
well. Most asked that EPA clarify that this collected state data can be 
used to satisfy the federal SQG re-notification requirement. We are 
clarifying that as long as the more frequently state-collected data is 
transferred into the national RCRA information management system or 
RCRAInfo by the state on the timetable EPA is finalizing in this 
rulemaking for SQG re-notification, these existing state regulations 
would meet the requirement.
    Two concepts were raised by commenters that EPA intends to 
investigate for possible changes to the Site ID form in the future. 
First, commenters asked for the ability to check a box certifying that 
their site ID information had not changed rather than have to fill out 
the entire Site ID form each time they re-notify. By increasing the 
time interval for SQG re-notification to every four years, EPA believes 
there will be reduced burden, but understands this option would 
increase efficiency for the regulated community and implementers. We 
intend to work with our national data experts to explore a possible 
form change to accommodate this idea. Second, commenters asked for a 
check box or another mechanism to inactivate a RCRA Site ID number. EPA 
intended for the SQG re-notification process to provide a mechanism for 
EPA and the states to deactivate RCRA identification numbers when no 
activity occurred for long periods of time. The Agency intends to work 
with our state partners in exploring whether the Site ID form or data 
system changes can be made, or

[[Page 85778]]

guidance issued, to allow this action to occur.
    Some in industry questioned the need for such information. 
Commenters suggested that alternative information collection mechanisms 
already exist, such as using the Biennial Report submission for LQGs 
and manifest data. First, the existing one-time notification for SQGs 
provides no assurance that the information collected by EPA and many 
states, over time, will accurately reflect which facilities are 
generating hazardous waste and whether they still are SQGs. EPA agrees 
that the Biennial Report required by LQGs does provide a mechanism by 
which LQGs regularly re-notify, and we are simply codifying that 
process in this final rule. While TSDFs report hazardous waste received 
by SQGs in their Waste Received (WR) form, they do not identify the 
generator category of the facility they are receiving waste from, only 
the RCRA identification number. From experience, the Agency has found 
there is no guarantee that cross walking the RCRA identification number 
of a facility reported in the WR form with the information found in an 
existing RCRA Site Identification form will guarantee that the 
regulatory category of the generator is correct. Therefore, the Agency 
believes periodic re-notification is required.
    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.
    A number of commenters supported the idea that SQG re-notification 
be required when a specified event occurs. Technically, generators 
already have this capability. The existing instructions for completing 
EPA Form 8700-12 include the statement, ``You must use this form to 
submit a subsequent notification if your site already has an EPA 
Identification Number and you wish to change information (e.g., 
generator status, new site contact person, new owner, new mailing 
address, new regulated waste activity, etc.).'' \86\
---------------------------------------------------------------------------

    \86\ See 2015 Biennial Report Instructions, page 11-12 at 
https://www.epa.gov/sites/production/files/2015-11/documents/2015_hwr_instructions_forms.pdf.
---------------------------------------------------------------------------

    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.
    The retail sector also requested that the Agency limit the periodic 
re-notification requirement for their stores, and provide a streamlined 
process for large retail chains (e.g., allowing a consolidated update 
that identifies only key changes).\87\ The Agency understands the 
retailers' concerns, which are among the reasons we are not finalizing 
re-notification based on specified events. EPA continues to explore the 
various approaches to the retail sector as they, similar to 
laboratories, tend to operate very differently than typical hazardous 
waste generators and face unique issues with the RCRA regulations.
---------------------------------------------------------------------------

    \87\ See Comments of the Retail Associations in Response to 
EPA's proposal, Docket ID NO. EPA-HQ-RCRA-2012-0121, December 23, 
2015.
---------------------------------------------------------------------------

    Finally, EPA is clarifying that when an SQG or LQG changes 
location, it is required to notify EPA because a new RCRA 
identification number will be needed as these numbers are tied to a 
physical site. EPA and the states will work with the generator to 
inactivate the previous RCRA identification number held by the 
generator while also assigning a new RCRA Identification number. Also, 
while not required, EPA recommends that generators who change ownership 
re-notify and alert EPA or their state that a new owner is responsible 
for the management of hazardous waste at the facility.
    Overall, this provision of the final rule provides a balanced 
approach between the re-notification needs of EPA, the states, and 
SQGs. We will work with all parties to ensure its effective 
implementation.
    Effect of Reorganization: This section is affected by the 
reorganization. The reorganization of the generator regulations moved 
the requirements for EPA identification numbers from Sec.  262.12 to 
Sec.  262.18. The reorganization is discussed in section VI of this 
preamble.

M. Provision Prohibiting Generators From Disposing of Liquids in 
Landfills (40 CFR 262.14(b) and 262.35)

    RCRA section 3004(c) prohibits the disposal of bulk or non-
containerized liquid hazardous waste or free liquids contained in 
hazardous waste in any landfill. This prohibition is necessary because 
the disposal of liquids in landfills can be a significant source of 
leachate generation. Restricting the introduction of liquids into 
landfills would minimize the leachate generation potential of landfills 
and reduce the risk of liner failure and subsequent contamination of 
the ground water.\88\ The Agency codified this prohibition for 
municipal solid waste landfills (MSWLFs) at Sec.  258.28, and at Sec.  
264.314 and Sec.  265.314 for permitted and interim status hazardous 
waste landfills. This prohibition is not a new provision and has been 
in place for almost 25 years. However, the Agency believes it is 
important to emphasize that the responsibility for complying with this 
statutory provision resides not only with municipal and hazardous waste 
haulers and landfill operators, but also with hazardous waste 
generators. Additional information can be found in the preamble of the 
proposed rule (80 FR 57971).
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    \88\ October 9, 1991, 56 FR 51055.
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1. What is EPA finalizing?
    The Agency is finalizing the proposed regulatory language 
prohibiting hazardous waste generators from disposing of liquid 
hazardous wastes in landfills. The final regulatory language is located 
at Sec.  262.14(b) for VSQGs and at Sec.  262.35 for SQGs and LQGs. As 
explained in the proposal, EPA is clarifying existing language to 
emphasize that hazardous waste generators are also responsible for 
complying with this provision. Also, the Agency is adding references to 
Sec.  264.314 and Sec.  265.314 in the SQG and LQG regulation (Sec.  
262.35). Liquid waste disposed in a hazardous waste landfill must meet 
the additional requirements in Sec.  264.314 and Sec.  265.314, notably 
the requirement that the sorbents be nonbiodegradable. EPA is adding 
these references to Sec.  262.35 in response to comments about sorbed 
hazardous waste liquids and to clarify the requirements that must be 
met prior to disposal in a hazardous waste landfill.

[[Page 85779]]

2. Major Comments
    Several commenters expressed concern that the proposed regulatory 
language would cause confusion and force generators to alter their 
current practices for disposal of liquids. This was not the intent of 
this proposed regulation; 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. EPA disagrees with the commenter's 
suggestion to alter the proposed regulatory language for generators. 
EPA concludes that 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.
    A few commenters had concerns over the phrase ``whether or not 
sorbents have been added'' in the proposed regulatory text. The Agency 
is clarifying that this phrase does not restrict the use of sorbents as 
treatment prior to disposing in a landfill. 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 Sec.  260.10 after the use of sorbents, then the waste may 
be disposed in the correct corresponding landfill.
    EPA would like to clarify how current practices that remove free 
liquids prior to disposal in a landfill will not be altered by this 
proposed regulatory language, although commenters believed otherwise. 
These current practices will not be altered by this regulation and most 
generators should be able to continue operating as they have prior to 
this rule unless their waste contains free liquids when disposed in 
landfills. If there are free liquids, they are already out of 
compliance with the current requirements even before this rule takes 
effect. Methods that remove or solidify free liquids, such as mixing in 
sorbents until no free liquids are present, must continue to be 
utilized by all generators prior to disposal in any landfill. However, 
sorbed hazardous waste liquids by an SQG and LQG must meet additional 
criteria specified in Sec.  264.314 and Sec.  265.314 prior to disposal 
in a hazardous waste landfill.89 90 For example, one 
criterion, as some commenters pointed out, is that the sorbent must be 
non-biodegradable if disposed in a hazardous waste landfill. 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 Sec.  264.314 and 
Sec.  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.
---------------------------------------------------------------------------

    \89\ November 18, 1992, 57 FR 54452.
    \90\ RCRA Online 11798, November 17, 1993.
---------------------------------------------------------------------------

    Some generators commented that they have agreements where a TSDF is 
stabilizing all or some of their liquid hazardous waste. These 
generators are concerned that this regulation will end these 
agreements. EPA would like to clarify that this practice is not 
restricted by this regulation and generators may continue to ship their 
liquid waste to TSDFs for stabilization.
    Effect of the Reorganization: This section is not affected by the 
reorganization. Regulatory language regarding the prohibition of 
liquids in landfills was duplicated from Sec.  258.28, and at Sec.  
264.314 and Sec.  265.314.

N. Clarification of Biennial Reporting Requirements (40 CFR 262.41, 
264.75 and 265.75)

    The Agency proposed changes to biennial reporting requirements at 
Sec.  262.41, Sec.  264.75 and Sec.  265.75. For purposes of 
convenience and efficiency, a discussion of proposed changes being 
finalized in this rulemaking are consolidated here.
    The biennial report provides EPA and the states with important 
information from all LQGs and RCRA treatment, storage and disposal 
facilities associated with hazardous waste generation and management. 
For LQGs, this information includes, for each hazardous waste 
generated, the quantity generated and the hazardous waste composition, 
as well as how and where this waste is managed. For TSDFs, this 
information includes hazardous wastes received from not only LQGs but 
also SQGs and VSQGs. This information is used to support various EPA 
and state program management and compliance monitoring functions.
    The regulations associated with biennial reporting by both 
generators and TSDFs have been in existence for approximately thirty 
years with very little change over this time period. From experience 
through years of implementing this program, the Agency identified areas 
where clarifications and changes to these regulations could improve 
both program efficiency and effectiveness. The Agency proposed such 
changes as part of this rulemaking. A discussion of the proposed 
changes being finalized follows.
    EPA proposed to modify the biennial reporting regulations for 
generators found at 40 CFR 262.41 in order to make the regulations 
consistent with Agency guidance, including its biennial report 
instructions and forms. More specifically, the Agency proposed the 
following revisions: (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 Sec.  
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 Sec.  264.75 
and Sec.  265.75, EPA proposed to modify the regulations at Sec. Sec.  
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).
1. Standards Applicable for LQGs (40 CFR 262.41)
    a. What is EPA finalizing for LQGs? First, only LQGs need to 
complete and submit biennial reports. The previous regulatory text was 
unclear as to which generators had to submit a biennial report. 
Previous regulatory text also did not include the word ``complete'' 
which now has been added. However, the Agency is modifying the 
regulatory text per a comment to clarify that information is to be 
reported for every odd-numbered year and that the actual Biennial 
Report must be completed and submitted using EPA Form 8700-13 A/B to 
the Regional Administrator by March 1 of the following even-

[[Page 85780]]

numbered year.\91\ The states may have more frequent or additional data 
reporting requirements over and above EPA's and may use a different, 
but equivalent, form to collect federal data and satisfy their own 
program data reporting needs.
---------------------------------------------------------------------------

    \91\ See comments from the staff of the Hazardous Waste Section 
in the Hawaii Department of Health, Docket No. EPA-HQ-RCRA-2012-
0121-0082.
---------------------------------------------------------------------------

    Second, 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. Almost all states require their LQGs to perform this function 
already since the Biennial Report instructions require such reporting. 
This change simply creates consistency between the instruction and 
regulations. This change also provides EPA and the states with a much 
more reliable estimate of hazardous waste generated annually. As stated 
in the preamble to the proposed rule, LQGs should have this information 
available through their hazardous waste manifests and other counting 
processes.
    Third, rather than citing specific data elements to be reported in 
Sec.  262.41, as proposed, the Agency is simply referencing the 
Biennial Report form (EPA Form 8700-13 A/B) at Sec.  262.41(a) and (b) 
in this final rule. Through the years, the Agency has modified what 
data elements it was collecting in the biennial report through changes 
in biennial report instructions but not updating the regulations. 
Therefore this change formalizes this process. Several commenters had 
concerns about this process as discussed in this section.
    The Agency is also not finalizing a commenter's suggestion that an 
LQG be allowed to report a solid waste that was generated at the end of 
a reporting year, but which was not determined to be hazardous until 
the beginning of the next, or non-reporting, year. With the Agency 
maintaining the existing regulatory framework for what must be reported 
(i.e., hazardous waste generated and also sent off site in the 
reporting year, this situation no longer matters.
    b. What changed since proposal? In the proposed rule, the Agency 
modified the regulatory text at Sec.  262.41(a) to require all LQGs to 
complete and submit a biennial report for all hazardous wastes 
generated in the reporting year. This change altered what hazardous 
waste has to be reported, particularly for LQGs that manage their waste 
off site. Under the previous biennial reporting regulations, an LQG had 
to report all hazardous wastes both generated and shipped off site to a 
TSDF within the United States. Not included were hazardous wastes 
generated in the reporting year but not yet shipped off site because 
LQGs have up to 90 days to accumulate hazardous wastes prior to either 
managing the material on site or shipping it off site to a TSDF. Hence, 
the possibility existed that EPA and the states were not obtaining a 
reliable estimate of how much hazardous wastes was generated annually 
by LQGs.
    Several commenters were concerned that such a change would 
dramatically alter the existing processes and procedures long 
established by LQGs, and by TSDFs who support LQGs in completing the 
Biennial Report. Others pointed out that EPA was obtaining a reliable 
estimate of hazardous wastes generated by LQGs, although not 
necessarily in a clear cut manner. 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.
    Based on these comments, EPA is not finalizing the proposed Sec.  
262.41(a) changes and will instead revert back to the previous language 
found in Sec.  262.41(a).
    c. Major comments.. Many of the comments submitted by individuals 
and organizations concerned these issues. However, a number of 
commenters expressed concern regarding the Agency's process of 
involving the public in making changes to the Biennial Report forms now 
that the regulatory language will cite the form and no longer identify 
the required data to be submitted. Specifically, commenters mistakenly 
believed that EPA may impose additional substantive reporting 
requirements by simply changing the form, rather than through a 
rulemaking to change Sec.  262.41. However, the Agency has been 
following the Administrative Procedures Act (APA) and will continue to 
do so. Commenters may not have been aware but 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), which is 
approved 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/.
    One state commenter also disagreed that LQGs had to submit 
hazardous waste generation information for the months they were either 
an SQG or VSQG. The Agency believes 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. Likewise, 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 Sec.  262.230. As already discussed, almost all states 
already require this information as part of their biennial reporting 
requirements, and it has long been included in the BR instructions.
    Another commenter mentioned that 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 the reports are due, which could be a year or 
more after the fact. Generators are responsible for calculating the 
amount of hazardous waste they generate monthly to determine their 
generator category. Therefore, generators should have the requisite 
processes in place to accomplish this function.
    One state expressed concerns that any changes to EPA Form 8700-13 
A/B would also involve changes to the Biennial Report instructions and 
forms, as well as the RCRAInfo database, and wanted to ensure state 
input in this process. The Agency wants to assure all stakeholders that 
we will work with our

[[Page 85781]]

state partners in developing any changes to Biennial Report forms and 
instructions, as well as any changes to the RCRAInfo database, through 
established processes and procedures.
    Note that the changes to the regulatory text for Sec.  262.41 in 
this action take into account the revisions being made as a part of the 
``Hazardous Waste Export-Import Revisions'' Final Rule (Docket ID EPA-
HQ-RCRA-2015-0147; FRL-9947-74-OLEM), including changing the reference 
to ``Sec.  262.56'' that used to be in Sec.  262.41(b) to a reference 
to ``Sec.  262.83(g)'' in Sec.  262.41(c).
2. Standards Applicable for TSDFs (40 CFR 264.75 and 265.75)
    a. What is EPA finalizing? The Agency is also finalizing the 
provision that requires permitted and interim status TSDFs at Sec.  
264.75 and Sec.  265.75, respectively to complete and submit EPA Form 
8700-13 A/B to the Regional Administrator by March 1 of each even 
numbered year for facility activities during the previous calendar 
year. This change is similar to those proposed for LQGs at Sec.  
262.41.
    b. Major comments. Comments received were very similar to those 
discussed under Sec.  262.41 where concern was expressed with the 
process EPA would use to notify stakeholders that changes to EPA Form 
8700-13 A/B were being proposed. Commenters were concerned that EPA 
might impose substantive reporting requirements merely by reference to 
a form that can be changed at the Agency's whim which would violate the 
notice and comment provisions of the APA. As previously described, the 
Agency will ensure that it follows a transparent process with respect 
to any proposed changes and that stakeholders will continue to have an 
opportunity to comment on any proposed form or reporting element 
changes.
    Effect of the Reorganization: This provision is not affected by the 
reorganization of the generator regulations.

O. Extending Time Limit for Accumulation Under Alternative Requirements 
for Laboratories Owned by Eligible Academic Entities (40 CFR part 262 
Subpart K)

    Under 40 CFR part 262 subpart K, eligible academic entities have 
the choice of operating their laboratories under the alternative 
subpart K standards instead of the satellite accumulation area 
regulations at 40 CFR 262.15. When subpart K was initially promulgated, 
if the eligible academic entity chose to operate its laboratories under 
subpart K, the entity had to remove the unwanted material from each 
laboratory under the following two timetables: (1) every 6 months; or 
(2) within 10 calendar days, if the laboratory accumulates more than 55 
gallons of unwanted material or 1 quart of reactive acutely hazardous 
unwanted material.
    Operating under the SAA regulations, an eligible academic entity 
has no time limit for accumulation. Therefore, for smaller eligible 
academic entities that do not accumulate 55 gallons in a laboratory, 
subpart K's six-month accumulation time limit can mean a shorter, more 
stringent, accumulation time than they have under the satellite 
accumulation area regulations. Eligible academic entities have cited 
this shorter accumulation time as a disincentive for opting into the 
alternative standards in subpart K. The Agency, therefore, proposed to 
increase the accumulation time limit in an eligible academic entity's 
laboratory to 12 months.
1. What is EPA finalizing?
    We are finalizing the increased accumulation time limit, as 
proposed. Therefore, laboratories at eligible academic entities that 
have opted into subpart K will be required to remove the unwanted 
material from each laboratory under the following timetables: (1) Every 
12 months; or (2) within 10 calendar days, if the laboratory 
accumulates more than 55 gallons of unwanted material or 1 quart of 
reactive acutely hazardous unwanted material. EPA proposed a number of 
other changes to subpart K, but they were all conforming changes, 
meaning they were necessary to make the terminology and citations 
consistent with the new generator regulations (e.g., changing the term 
``conditionally exempt small quantity generator'' to ``very small 
quantity generator''). These conforming changes will also be finalized 
as proposed.
2. Major Comments
    Although we received approximately 60 comments from academic 
institutions, very few commented on this specific proposed change. All 
that did comment on this proposed change, were in favor of the longer 
accumulation time.
    The remainder of the comments received from academic institutions 
were 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.
    Many academic institutions indicated that they are not able to opt 
into subpart K because they are in states that have not adopted subpart 
K. 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.\92\ 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.
---------------------------------------------------------------------------

    \92\ http://www.epa.gov/hwgenerators/where-managing-hazardous-waste-academic-laboratories-rule-effect.
---------------------------------------------------------------------------

    Another common theme from the commenters was that subpart K, which 
was designed for laboratory operations, should apply across the 
academic institution, and not just to laboratories. 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

[[Page 85782]]

workforce. For that reason, at no point in developing subpart K did EPA 
ever indicate it was considering a hazardous waste regulation that 
would apply to the entire academic institution.
    Finally, in its comments, the Campus Safety Health and 
Environmental Management Association (CSHEMA) offered to lead a 
dialogue with EPA about how to make subpart K more useful to the 
academic sector.\93\ 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.
---------------------------------------------------------------------------

    \93\ EPA-HQ-RCRA-2012-0121-0158.
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    Effect of the Reorganization: This section is not affected by the 
reorganization.

P. Deletion of Performance Track and Project XL Regulations

    EPA launched the National Environmental Performance Track in 2000 
to provide regulatory and administrative benefits to Performance Track 
members. Performance Track was a public-private partnership that 
encouraged continuous environmental improvement through use of 
environmental management systems, community outreach, and measurable 
results. In order to provide regulatory benefits to members, EPA made 
changes to the RCRA hazardous waste regulations, among others, that 
specifically referenced members of Performance Track.
    EPA terminated the Performance Track program in 2009. Therefore, 
EPA is removing obsolete references to Performance Track in the RCRA 
hazardous waste regulations as a part of this rulemaking. In some 
cases, a whole paragraph of regulation will be removed and in other 
instances we will remove just the part of the paragraph that references 
Performance Track. The deleted paragraphs will be reserved to reduce 
the possibility of confusion by replacing them with other regulations. 
The following references are being removed:
     Sec.  260.10: definition of Performance Track member 
facility;
     Sec.  262.34(j), (k), and (l): regulations for 
accumulation of hazardous waste by LQGs in Performance Track;
     Sec.  262.211(c): two parenthetical references to Sec.  
262.34 (j) and (k) in the regulations for academic labs in subpart K of 
part 262;
     Sec. Sec.  264.15(b)(4) and 265.15(b)(4): references to 
the requirements for inspection of areas of the facility subject to 
spills in Sec. Sec.  264.15(b)(5) and 265.15(b)(5), respectively;
     Sec. Sec.  264.15(b)(5) and 265.15(b)(5): requirements for 
Performance Track member facilities that reduce inspection frequency 
for areas subject to spills;
     Sec. Sec.  264.174 and 265.174: references to Performance 
Track requirements for inspections of areas where containers are 
stored;
     Sec. Sec.  264.195(e), 265.195(d), and 265.201(e): 
requirements for Performance Track member facilities for inspections of 
tank systems;
     Sec. Sec.  264.1101(c)(4) and 265.1101(c)(4): requirements 
for Performance Track member facilities for reduced inspections of 
containment buildings;
     Sec.  270.42(l): procedures for permit modifications for 
Performance Track member facilities; and
     Appendix 1 to Sec.  270.42--Classification of Permit 
Modification, Section O.1: Indication that a permit modification for 
reduced inspections for a Performance Track member facility is a Class 
1 permit modification.
    These provisions were added to the regulations in the National 
Environmental Performance Track Program final rule, dated April 22, 
2004 (69 FR 21737), the Resource Conservation and Recovery Act Burden 
Reduction Initiative final rule, dated April 4, 2006 (71 FR 16862), and 
the Academic Laboratories final rule, dated December 1, 2008 (73 FR 
72912).
    EPA is also removing references to Project XL programs that have 
been discontinued. These include the New York State Public Utilities 
Project XL program at subpart I of 40 CFR part 262 and the Laboratories 
Project XL program at subpart J of 40 CFR part 262. The New York State 
Public Utilities Project XL piloted a program to allow public utilities 
located in New York State to consolidate at central collection 
facilities hazardous wastes generated at remote locations. The 
Laboratory XL Project was created for Boston College, the University of 
Massachusetts, and the University of Vermont, and was finalized in the 
Federal Register on September 28, 1999 (64 FR 53292). The Laboratories 
Project XL piloted an alternate hazardous waste management system for 
college and university laboratories. Originally, the program was to 
expire on September 30, 2003. On June 21, 2006, EPA extended the 
program to April 15, 2009 (71 FR 35550). Now that the program has now 
expired, EPA is removing paragraph (j) from Sec.  262.10, as well as 
part 262 subpart J. We have also removed and reserved the reference at 
Sec.  262.10(j) to the University Laboratories Project XL.
    Effect of the Reorganization: This section is not affected by the 
reorganization.
X. Addition to 40 CFR Part 262 for Generators That Temporarily Change 
Generator Category as a Result of an Episodic Event

A. Introduction

    EPA is finalizing the revisions to the generator regulations that 
allow a VSQG or an SQG to maintain its existing generator category if, 
as a result of a planned or unplanned episodic event, the generator 
would generate a quantity of hazardous waste in a calendar month 
sufficient to cause the facility to move into a more stringent 
generator category (i.e., VSQG to either an SQG or an LQG; or an SQG to 
an LQG). This revision allows a VSQG or an SQG to generate additional 
quantities of hazardous waste--exceeding its normal generator category 
limits temporarily--and still maintain its existing generator category, 
provided it complies with the specified conditions. Because these 
events are considered to be temporary and episodic in nature, the 
hazardous waste generator may only use this provision once every 
calendar year, unless there is a second event for which the generator 
receives approval from EPA to manage as an additional episodic 
event.\94\
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    \94\ Note that when a state begins implementing this provision 
as part of its authorized RCRA program, all petitions and approvals 
are managed by the authorized state rather than EPA.
---------------------------------------------------------------------------

    Under the RCRA regulatory framework for hazardous waste generators, 
a generator's category is determined by the quantity of hazardous waste 
it generates in a calendar month. As described in the proposed 
rulemaking at 80 FR 57972, at issue is when the generator generates an 
additional quantity of hazardous waste in a calendar month as a result 
of an episodic event--planned or unplanned--only to revert back to its 
normal waste generation quantities in the following month. For example, 
one such event would be if a VSQG plans a short-term demolition project 
that generates an additional 500 kilograms of hazardous waste in the 
calendar month, resulting in the VSQG becoming an SQG for that calendar 
month. However, once the demolition project has been completed, the 
generator's waste generation drops such that it again qualifies as a 
VSQG. Other examples of planned episodic events include tank cleanouts, 
short-term construction projects, short-term site remediation,

[[Page 85783]]

equipment maintenance during plant shutdowns, and removal of excess 
chemical inventories. Unplanned episodic events, which EPA expects 
would be less frequent, include production process upsets, product 
recalls, accidental spills, or ``acts of nature,'' such as a tornado, 
hurricane, or flood.
    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 based on an episodic event (planned or unplanned) is unnecessary 
to protect human health and the environment. Instead, the Agency is 
finalizing the more practical approach laid out in the proposed rule to 
ease compliance for episodic generators and still protect human health 
and the environment, with some minor changes. 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.\95\
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    \95\ See the docket for the Regulatory Impact Assessment of the 
Potential costs, Benefits, and Other Impacts of the Final Hazardous 
Waste Generator Improvements Rule.
---------------------------------------------------------------------------

B. What is EPA finalizing?

    Under the final rule, a VSQG or an SQG generating an increased 
quantity of hazardous waste because of an episodic event that results 
in a temporary change in a generator's category would be able to 
maintain its existing generator category, provided specified conditions 
are met. EPA has determined that these conditions will be sufficient to 
ensure these additional hazardous wastes are managed in an 
environmentally sound manner. Like the general framework of the 
regulations for generators, should a VSQG fail to meet the specified 
conditions, it loses the VSQG exemption and becomes the operator of a 
non-exempt storage facility unless it also immediately complies with 
all of the conditions for exemption for an SQG or LQG. If an SQG fails 
to meet any specified condition for exemption, it loses its exemption 
and becomes the operator of a non-exempt storage facility unless it 
immediately complies with all of the conditions for an exemption for an 
LQG.
    For both VSQGs and SQGs taking advantage of this provision, the 
following conditions must be met: (1) Episodic events are limited to 
one per calendar year; (2) the generator must notify EPA at least 30 
calendar days prior to initiating a planned episodic event or within 72 
hours after an unplanned episodic event; the generator must identify 
the start and end dates of the episodic event, which may be no more 
than 60 days apart, as well as other information about the event; and 
identify a facility contact and/or emergency coordinator with 24-hour 
telephone access to discuss notification submittal or respond to an 
emergency related to the episodic event; (3) the generator must obtain 
an EPA ID number (VSQGs); (4) the generator must comply with specified 
hazardous waste management conditions as the waste is accumulated on 
site; (5) the generator must use a hazardous waste manifest and 
hazardous waste transporter to ship the waste generated by the episodic 
event to a RCRA-designated facility within 60 calendar days from the 
start of the episodic event; and (6) the generator must complete and 
maintain specified records.
    EPA is also finalizing a petition process at Sec.  262.233 to allow 
hazardous waste generators to request from EPA one additional episodic 
event within the same calendar year to cover the possibility that a 
generator could face an unplanned episodic event in the same year it is 
conducting a planned event. The regulations for episodic generators are 
found in a new part 262 subpart L, Sec. Sec.  262.230-262.233.
1. Number of Episodic Events per Calendar Year
    Under the episodic generator provisions in subpart L, 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. EPA has several reasons for this 
restriction. 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.
    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.
2. Notification
    A VSQG or an SQG must notify EPA no later than 30 days prior to 
initiating a planned episodic event using EPA Form 8700-12 (Site ID 
form). Subsequent to the publication of this final rule, EPA will be 
revising form 8700-12 to account for the new rule provisions, but in 
the meantime, we will issue guidance on how to use the form in its 
current state to make this notification. The hazardous waste generator 
must identify the dates the episodic event will begin and end--a time 
frame not to exceed 60 calendar days--as well as describe the reason 
for the event and the types and estimated quantities of hazardous 
wastes that would be generated during the event.
    For a generator's first event in a calendar year, the episodic 
event begins on the date identified on its form 8700-12. The date 
identified on the notification form as the start date for the episodic 
event is assumed to be the date of the release or the date the 
generator initiates physical action in generating and accumulating the 
hazardous waste. Whether such action actually occurs on that date or 
after by the generator will have no impact in changing the end date of 
the episodic event identified on the notification form. The end date 
must be no later than 60 calendar days from the date identified on the 
notification form as the start date of the episodic event.
    If the generator does not know the exact day the event will end at 
the time of notification, it can notify using an end date that is 60 
calendar days from the start of the event as long as it ensures that 
all hazardous waste from the episodic event is shipped off site by that 
date.
    Should an unplanned event occur, the generator must notify EPA 
within 72 hours via phone or email, and 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

[[Page 85784]]

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.
3. EPA ID Number
    A VSQG generating and accumulating quantities of hazardous waste 
using the episodic event provisions to manage hazardous waste must 
obtain an EPA ID number using EPA Form 8700-12 if one has not 
previously been assigned. A generator cannot initiate a hazardous waste 
shipment to a RCRA-designated facility without an EPA ID number. (SQGs 
are already required to obtain an EPA ID number.)
4. Waste Management Standards
    a. Accumulation standards for VSQGs. Under the standard generator 
regulations, a VSQG must not accumulate more than 1,000 kilograms of 
non-acute hazardous waste at any one time, but otherwise does not have 
any on-site waste management standards when accumulating hazardous 
waste, primarily because the quantities generated every month are so 
small. However, 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.
    When accumulating hazardous waste in containers, the VSQG would be 
required to mark or label its containers with the following: (1) The 
words ``Episodic Hazardous Waste'' and (2) an indication of the hazards 
of the contents of the container--examples of hazards include, but are 
not limited to, the applicable hazardous waste characteristic(s) (i.e., 
ignitable, corrosive, reactive, toxic). In the case of hazardous wastes 
ultimately treated and disposed of off site, the generator could use 
hazard communication consistent with the DOT requirements at 49 CFR 
part 172 subpart E (labeling) or subpart F (placarding), use a hazard 
statement or pictogram consistent with the OSHA Hazard Communication 
Standard at 29 CFR 1910.1200, or use a chemical hazard label consistent 
with the NFPA code 704. These marking standards are the same as those 
for LQGs and 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, the VSQG must mark 
the date that the episodic event began clearly on each container.
    For tanks, the VSQG must mark or label the tank containing 
hazardous waste accumulated during the event with the words ``Episodic 
Hazardous Waste'' and would be required to use inventory logs, 
monitoring equipment, or other records to identify the associated 
hazards and to identify the date that the episodic event began. The 
records containing this information must be on site and available for 
inspection.
    In addition, the generator must manage the hazardous waste in a 
manner that minimizes the possibility of an accident or release. 
Management standards are critical to ensure the hazardous waste does 
not pose a risk to human health and the environment. A VSQG may use 
best management practices to comply with this condition. In practice, 
this includes managing the hazardous waste in containers that are in 
good condition and chemically compatible with any hazardous waste 
accumulated therein and keeping the containers closed except to add or 
remove waste. Complying with the standards in part 265 subpart I would 
satisfy this condition.
    If a VSQG is managing episodic hazardous waste in tanks, the 
following standards must be followed: (1) Having procedures in place to 
prevent overflow (e.g., the tank is equipped with a means to stop 
inflow with a system such as a waste feed cutoff system or bypass 
system to a standby tank when hazardous waste is continuously fed into 
the tank); (2) inspecting the tank(s) at least once each operating day 
during the episodic event to ensure all applicable discharge control 
equipment, such as waste feed cutoff systems, bypass systems, and 
drainage systems, are in good working order and (3) using appropriate 
controls and practices to prevent spills and overflows from tank or 
secondary containment systems including, at a minimum, spill prevention 
controls (e.g., check valves, dry disconnect couplings); overfill 
prevention controls (e.g., level sensing devices, high level alarms, 
automatic feed cutoff, or bypass to a standby tank); and maintenance of 
sufficient freeboard in uncovered tanks to prevent overtopping by wave 
or wind action or by precipitation. For tank management, such practices 
are necessary to prevent the release of the hazardous waste or 
hazardous constituents to air, soil, or water, which could threaten 
human health and the environment.
    As mentioned already, an emergency coordinator (in compliance with 
Sec.  262.16(b)(9)(i)) must be identified for the duration of the 
episodic event on the notification form. An emergency coordinator is 
needed because the VSQG will be generating greater amounts of hazardous 
waste than normal and, should an accident occur, the emergency 
coordinator would need to be prepared to handle the situation.
    Under the management standards for VSQGs, the generator may not 
treat hazardous waste generated on site, except in an on-site 
elementary neutralization unit.\96\ After considering the comments on 
treatment by VSQGs managing hazardous waste under an episodic event, 
EPA has determined that the same standards should apply and 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.\97\ 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 off site for treatment or disposal, but is not 
appropriate for treatment on site by the VSQG. Several commenters 
argued that VSQGs are sophisticated facilities with the capability to 
safely treat, but EPA must design the regulations to be protective and 
not based solely on the

[[Page 85785]]

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.
---------------------------------------------------------------------------

    \96\ Elementary neutralization units, as defined in Sec.  
260.10, are exempt from RCRA treatment, storage, and disposal 
standards and permitting requirements. The elementary neutralization 
unit exclusion does not preclude a VSQG from treating waste in the 
exempt unit as long as the generator meets the criteria outlined in 
Sec. Sec.  264.1(g)(6), 265.1(c)(10), and 270.1(c)(2)(v). 
Specifically, the elementary neutralization unit must meet the 
definition of a container, tank, tank system, transport vehicle, or 
vessel, and must be used for neutralizing wastes that are hazardous 
only because of the corrosivity characteristic. RCRA Hotline Q & A, 
February 1996, RCRA Online 13778.
    \97\ 51 FR 10168, March 24, 1986.
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    b. Manifest use by VSQGs and management at a RCRA-designated 
facility. When holding an episodic event and operating under the 
provisions of subpart L, VSQGs must 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 Sec.  
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.
    c. Accumulation standards for SQGs. For containers and tanks, EPA 
is finalizing 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''; (2) an indication of the hazards of the contents of 
the container--examples of hazards 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 OSHA 
Hazard Communication Standard at 29 CFR 1910.1200, or a chemical hazard 
label consistent with the NFPA code 704. 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. The generator must 
have records containing this information on site and available for 
inspection.
    EPA is also finalizing its proposal that 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.
    In addition, the SQG must comply with all the conditions of the 
exemption in Sec.  262.16--for example, the waste accumulation, waste 
management, employee training, and emergency preparedness and 
prevention conditions.
    d. Manifest use by SQGs. SQGs must manifest the hazardous waste 
generated from an episodic event and send it to a RCRA-designated 
facility, unless the waste is managed on site. The Agency has 
determined that the use of a hazardous waste manifest and shipment of 
the hazardous waste to a RCRA-designated facility is necessary to 
protect human health and the environment. Note that, unlike VSQGs, the 
use of the hazardous waste manifest applies not only to the wastes 
generated from the episodic event, but to all other hazardous wastes 
the SQG generates.
5. Duration of the Episodic Event
    VSQGs and SQGs 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. 
After considering the comments on the proposal to allow 45 days, the 
Agency has determined 60 days is a more appropriate time limit and is 
sufficient time for a generator to complete the episodic event, arrange 
for treatment or disposal, and complete management of the hazardous 
waste.
    In the case of planned events, EPA believes that in most cases, 
hazardous waste is likely to be characterized before the event begins 
and any contracts required for waste removal and disposal can also be 
arranged before the event. However, in the case of an unplanned event, 
waste may have to be characterized and contracts for disposal bid and 
negotiated. In order to maintain a parallel structure for planned and 
unplanned episodic events, EPA is finalizing a 60-day time frame. 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.
    As a result of this longer time frame, EPA is not finalizing the 
proposed provision regarding a petition for an extension to an episodic 
event.
6. Recordkeeping
    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.

[[Page 85786]]

    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. 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.
7. Petition To Request One Additional Episodic Event
    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. However, in response to some of the comments received on the 
proposed rule from the 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 the EPA Regional Administrator 
for an unplanned event later in the year if needed.\98\
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    \98\ Authorized states will develop their own procedures for 
petitions under this provision.
---------------------------------------------------------------------------

    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. 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 is adding definitions of 
planned episodic event and unplanned episodic event to the regulations 
in subpart L. A planned episodic event is an episodic event that the 
generator planned and prepared for, including regular maintenance, tank 
cleanouts, short-term projects, and removal of excess chemical 
inventory. An unplanned episodic event is an episodic event that the 
generator did not plan nor expect to occur, including, but not limited 
to, production process upsets, product recalls, accidental spills, or 
``acts of nature,'' such as a tornado, hurricane, or flood. Some of 
these events are more sudden than others, but they would all be 
unanticipated by the generator. EPA is not including excess inventory 
in the definition of an unplanned event because a case of excess 
inventory is, more than the others, a result of decisions made by the 
generator in the regular course of business and is not, therefore, an 
unplanned episodic event.
    Consistent with the notification requirements, the generator must 
petition EPA for the second event. For a planned event, the generator 
must submit a petition for a second event and indicate that this is a 
petition for a second event. For an unplanned event, the petition must 
be in the form of a notification to EPA within 72 hours of the start of 
the event by phone, email, or fax and subsequent submittal of a 
complete petition with the relevant information for the event.
    The petition must include (1) the reason why an additional episodic 
event is needed and the nature of the episodic event; (2) the estimated 
amount of hazardous waste to be managed from the event; (3) how the 
hazardous waste is to be managed; (4) the estimated length of time 
needed to complete management of the hazardous waste generated from the 
episodic event--not to exceed 60 days; and (5) information regarding 
previous episodic event(s) managed by the generator and how it complied 
with the conditions. EPA would then evaluate this and other site-
specific information to determine whether a generator should be allowed 
to complete the episodic event under the alternative standards.
    In the case of a planned second episodic event, a generator may not 
manage the hazardous waste from the event under the episodic generation 
conditions in subpart L until it has approval from the implementing 
agency for that second event. There is no mandatory time frame for 
submitting a petition for a second planned event, but the generator 
should allow enough time for the implementing agency to review the 
petition so that they can begin the event on time.
    EPA has determined that in the case of a petition for an unplanned 
second event, the generator may manage hazardous waste for the 
additional unplanned episodic event under the episodic event standards 
until written approval by EPA has been received. SQGs requesting a 
second event will be managing the hazardous waste under the same 
technical standards in Sec.  262.16 in both situations. It would be 
impractical for a VSQG requesting a second episodic event to meet Sec.  
262.16 accumulation standards while waiting for approval to no longer 
have to meet them. Therefore, the VSQGs would be required to meet the 
performance standards outlined in Sec.  262.232(a)(4)(iii). These 
subpart L accumulation standards for VSQGs are designed to minimize the 
possibility of a fire, explosion, or release and containers and tanks 
must be in good condition and compatible with the hazardous waste they 
contain.
    If EPA approves the petition for a second event, the generator must 
retain the written approval in its records for three years from the 
date the episodic event ended. If EPA rejects a generator's petition 
for a second event, the generator must then start managing the 
hazardous waste from the episodic event and all other hazardous waste 
at its facility under the standards for the

[[Page 85787]]

applicable more stringent generator category.
    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.
8. Tracking and Accounting for Hazardous Waste Generation and 
Accumulation as a Result of an Episodic Event Along With Normal 
Production Operations
    In practice, a VSQG or SQG taking advantage of this rule must track 
and monitor the start and end dates of the episodic event in 
conjunction with the date the calendar month ends to ensure compliance 
with all RCRA regulatory provisions associated with hazardous waste 
generation and management.
    The following example demonstrates how this provision of the rule 
will work. A VSQG could have a number of facility operations (e.g., 
tank cleanouts, disposal of off-spec products it cannot sell or 
reclaim, and/or repair work involving the removal of lead paint chips) 
that would result in a temporary change in its regulatory category. The 
VSQG decides to notify EPA two months prior (as well as identifying a 
point of contact and emergency coordinator) that it will initiate the 
planned episodic event on July 20 and take advantage of the full 60 
days allowed to conduct the event and, therefore, end on September 17. 
Beginning on July 20, the generator must comply with all of the 
conditions of subpart L to maintain its exemption as a VSQG. Under this 
example, if the generator complies with subpart L, it can generate more 
than 1,000 kilograms of hazardous waste as a result of the events it 
identified in the identification until September 17.
    On or before September 17, the generator must remove and dispose of 
all the hazardous wastes it generated over the course of the previous 
60 days from the episodic event. Provided the generator meets that 
deadline, that waste does not count when determining the generator's 
category.
    In this example, the generator could choose to also dispose of 
waste generated from its normal operations in the same shipment. 
However, in this case, any waste generated from production or events 
that were not identified in the notification to EPA about the episodic 
event (or in the petition for a second event) must be counted for the 
purposes of determining the generator's category for any months 
impacted by the episodic event. Specifically as an example, the 
quantity of hazardous waste the VSQG generates outside the episodic 
event from September 1 through September 17 would be added the amount 
of hazardous waste generated for the remainder of September (starting 
on September 18 until the end of the month) to determine the 
generator's category for that month.
    The same approach applies to the accumulation limit for hazardous 
waste at a VSQG. If the VSQG exceeds 1,000 kg of hazardous waste on 
site as a part of its episodic event, that waste can be managed under 
the provisions of subpart L until September 17. If, however, the 
hazardous waste has not been shipped off site by September 18, the 
generator must manage the waste as LQG waste. In addition, the 
generator would be in violation of the conditions of the episodic 
generation provision.
    In summary, 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.

C. What changed since proposal?

    EPA is finalizing the episodic generation provisions in subpart L 
mostly as they were proposed on September 25, 2015, but with several 
important revisions: (1) Lengthening the time allowed for an episodic 
event from 45 days to 60 days and removing the option for a petition to 
extend an event; (2) revising the situations in which a generator can 
petition for a second event to ensure that a generator holds no more 
than one planned and one unplanned episodic event in a calendar year; 
(3) revising the notification requirements for unplanned events to 
allow 72 hours for notification; and (4) revising the labeling 
requirements to remain parallel with the labeling requirements for all 
generators being revised in the final rule (see section IX.E for more 
details on marking and labeling revisions).
1. Allowing 60 Days To Complete an Episodic Event
    Most of the comments EPA received on the episodic generation 
provision in the proposal revolved around how long each episodic event 
could be and the number of events allowed per year. EPA's goal is 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 is determining how long an event should 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 off 
site. 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 and one stated that the limit 
``undermines the benefits to operators of the episodic event rule.'' 
\99\ However, it should be noted that there was also some support for 
the 45-day time frame in the comments, 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.\100\
---------------------------------------------------------------------------

    \99\ Alyeska Pipeline Service, EPA-HQ-RCRA-2012-0121-0088
    \100\ Minnesota Pollution Control Agency, EPA-HQ-RCRA-2012-0121-
0232
---------------------------------------------------------------------------

    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. 
Other commenters also pointed out that events themselves may take place 
over several weeks and that some remote facilities may have special 
circumstances that require longer time frames to resolve. Other

[[Page 85788]]

commenters argued that some events may be special projects or 
demolition or remediation projects that would take longer than 45 days.
    Many commenters suggested a 90-day time frame, to match up with the 
requirements for large quantity generators, and some suggested a 60-day 
time frame. Other commenters suggested time frames as long as 180 days.
    EPA was persuaded by the commenters who stated that a longer time 
frame 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. 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, 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.
    As part of our decision to lengthen the time frame for an 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 received comments from the authorized states that they 
are concerned about the potential volume of petitions they might 
receive from the proposed episodic generation provisions 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.
2. Petition for a Second Event
    EPA proposed that a generator could petition EPA for a second 
episodic event, planned or unplanned. The proposal was based on the 
idea that in some cases a generator may want to hold a second event, 
but EPA did not want to simply allow two episodic events per year for 
all generators without a petition because of the potential abuse of the 
provision by generators that are not truly generating higher volumes of 
waste episodically, but should be operating in the larger generator 
category. EPA also wanted the petition to operate as a check that an 
implementing agency could use if it thought that a generator might be 
abusing the provisions.
    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, some suggested allowing a petition for a 
third, 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. However, several of the states supported 
limiting the episodic generation provision to one event per calendar 
year with no possibility for a second event while others argued that 
the proposed one event and a petition was appropriate. 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.
    After considering the comments, EPA has determined that it is 
appropriate to allow a facility to petition for a second event in a 
calendar year, but only if the generator is only holding one planned 
and one unplanned event in that calendar year. 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.
    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.
    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.
3. Notification
    EPA proposed notification requirements for episodic events to 
ensure that the authorized state or EPA is informed of when a generator 
is holding an event that would otherwise cause that generator to be 
operating in a higher generator category. The proposed requirement was 
that in the case of a planned event, the generator must notify EPA no 
later than 30 days before the event begins. For notification in the 
case of an unplanned event, EPA proposed that the generator notify 
within 24 hours or as soon as possible by phone or email and then 
follow up with a full notification using EPA Form 8700-12 (the Site ID 
form).
    Many of the comments on the notification provision singled out the 
notification for an unplanned episodic event as difficult to meet. Most 
of these

[[Page 85789]]

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. 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.
    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.
    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.
    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 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.
4. VSQGs Notifying Local Fire Department
    EPA proposed that a VSQG would be required to notify its local fire 
department that it was taking advantage of an episodic event. The 
notice would need to include the start and end dates and identify the 
types and quantities of hazardous wastes that would be generated. EPA 
stated that the purpose of the notification was to inform regulatory 
authorities of the facility's activities in order to enable adequate 
compliance monitoring of the facility with the conditions of the 
alternative standards.
    EPA did not receive support in the public comments for this 
proposal. 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. 
Commenters on this provision included both industry stakeholders and 
state agencies. Therefore, EPA is not finalizing this notification 
requirement as part of subpart L.
5. Labeling
    EPA proposed a labeling requirement as part of episodic generation 
that paralleled the labeling and marking being proposed throughout the 
generator program. The proposed requirement was for episodic generators 
to label their waste as ``episodic hazardous waste,'' to label the 
container with the contents of the container and the hazards of the 
contents and to mark the start date of the episodic event as well. The 
requirements for tanks would have allowed the relevant information 
about the contents, hazards, and episodic event to be recorded in a log 
book instead of on the container.
    In this final rule, EPA has revised the marking and labeling 
requirements throughout the generator program to remove the requirement 
that the contents of the container or tank be noted. The provision 
focuses instead on the hazards of the contents, as that requirement 
tracks more directly to the needs of responders in an emergency. EPA 
does expect that many facilities already label containers with the 
contents and will continue to do so to ensure that the correct 
information is available for manifesting when it comes time to ship the 
materials off site or for proper treatment on site.
    The marking and labeling requirements in subpart L for episodic 
generation have likewise been revised to remain parallel with the 
requirements in the other parts of the generator program. (See section 
IX.E for a complete discussion of the marking and labeling revisions.)
6. Management of Other Hazardous Waste Generated During Episodic Event
    In EPA's proposal, the preamble included an interpretation of the 
proposed provision for episodic generation that discussed allowing a 
generator to include hazardous waste that was generated outside an 
episodic event to be managed with the hazardous waste from the episodic 
event. This interpretation included both physical management of the 
waste and shipment off site, as well as not counting that other 
hazardous waste toward the generator's category.
    Some of the comments that EPA received from the states on this 
episodic generation provision argued that it would provide excessive 
relief from the generator regulations and, therefore, that it would not 
be appropriate to allow this relief. As discussed elsewhere, 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 this 
discussion 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.

D. Major Comments

1. Labeling Waste as ``Episodic Hazardous Waste''
    EPA received several comments stating that the proposed requirement 
to label hazardous waste from an episodic event as ``episodic hazardous 
waste'' rather than ``hazardous waste'' is an unneeded distinction. The 
commenters stated that it would be a burden to get and use a label that 
is different than the standard ``hazardous waste'' label.
    EPA disagrees with the commenters on the usefulness of the 
``episodic hazardous waste'' label. 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

[[Page 85790]]

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, 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.
2. Notification of Episodic Events
    EPA also received several comments that notification of episodic 
events to EPA is an unneeded burden to the generators and will decrease 
the likelihood of generators using this provision.
    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. 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.
3. 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.
    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.

XI. Detailed Discussion of Preparedness, Prevention, and Emergency 
Procedures Provisions for SQGs (40 CFR 262.16) and LQGs (40 CFR 262.17 
and 40 CFR part 262 Subpart M)

A. Introduction

    EPA is finalizing a number of proposed modifications to the 
conditions for exemption for both SQGs and LQGs regarding preparedness, 
prevention and emergency procedures, as described in the proposed 
rulemaking (80 FR 57972). Proposed conditions for SQGs were found at 
Sec.  262.16(b)(8)-(9) and for LQGs at Sec.  262.17(a)(6)-(7), which 
reference part 262 subpart M. The preamble to the proposed rulemaking 
discussed in detail the rationale for making several revisions to 
existing regulations, as well as specifically taking comment on certain 
proposed revisions and on other potential changes that were not 
reflected in revisions to existing regulations.
    In discussing these modifications in the proposed rule, EPA 
provided examples of catastrophic chemical accidents in the United 
States to highlight the need for continued improvement in a number of 
areas related to chemical facility safety. EPA also noted that, to 
address these concerns, the President issued Executive Order 13650--
Improving Chemical Facility Safety and Security (EO) on August 1, 2013, 
which directed the EPA and other federal agencies to identify ways to 
improve operational coordination with state, local, tribal, and 
territorial partners; enhance federal agency coordination and 
information sharing; modernize policies, regulations, and standards to 
enhance safety and security in chemical facilities; and work with 
stakeholders to identify best practices to reduce safety and security 
risks in the production and storage of potentially harmful chemicals. 
EPA explained that several of these modifications are aligned with EO-
related efforts in that they will facilitate collection and analysis of 
chemical information from local facilities, as well as development of 
local emergency response plans to mitigate or prevent a devastating 
chemical disaster. EPA further explained that these modifications will 
also update the regulations to make them compatible with the current 
infrastructure of emergency planning and response, as well as provide a 
more usable contingency plan to emergency responders en route to a 
time-sensitive emergency at a facility that generates hazardous waste. 
Proposed or potential modifications, as well as key comments received 
on each, are discussed in this section in terms of the extent to which 
they are being incorporated into this final rulemaking.

B. What is EPA finalizing as proposed?

1. Changes to Contingency Plan Regulations for Large Quantity 
Generators: Eliminating Employee Personal Information in Contingency 
Plans
    The condition for exemption for LQGs at Sec.  262.17(a)(6)-(7) 
references 40 CFR part 262 subpart M, which includes requirements 
associated with contingency plan content at Sec.  262.261. EPA proposed 
to modify the language to allow an LQG the flexibility to eliminate 
unnecessary employee personal information in the contingency plan in 
order to protect those individuals' privacy while still providing 
necessary information to address emergencies. Specifically, while 
retaining the name of persons qualified to act as emergency 
coordinators, the Agency proposed to remove references to addresses and 
changed the reference to home and office telephone numbers to 
``emergency telephone number.'' EPA also proposed to add language 
stating that, in situations where the generator site has an emergency 
coordinator continuously on duty because it operates 24 hours per day 
and every day of the year, 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. 
The Agency requested comment on this proposed modification.
    The majority of commenters supported EPA's proposal to remove 
addresses and home phone numbers for personnel and to allow listing of 
staffed positions. A few commenters suggested extending this provision 
to cover SQGs, even though they are not required to have contingency 
plans, and TSDFs. 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; consequently, the Agency is 
finalizing Sec.  262.261(d) as proposed. Although EPA is not extending 
these requirements to other generator categories or to TSDFs, the 
Agency would encourage facilities

[[Page 85791]]

to adopt these changes as a best management practice.
2. Technical Changes Applicable to Both Small Quantity Generators and 
Large Quantity Generators
    EPA proposed clarifications and modifications to preparedness and 
prevention procedures dealing with the location of required equipment 
and access to communications or alarm systems based on 30 years of 
experience with these rules, feedback from stakeholders as part of the 
Agency's November 2004 Hazardous Waste Generator Regulatory Program 
Evaluation (Docket ID No. RCRA-2003-0014), and other discussions with 
stakeholders. These revisions are discussed below.
    a. Proposed technical changes to introductory paragraph on required 
equipment. EPA noted that existing regulations are unclear regarding 
whether the required emergency response equipment must be placed in 
those areas of operation where hazardous waste is generated and 
accumulated or other parts of the facility where hazardous waste is not 
generated or accumulated. The Agency added that it may not always be 
appropriate or safe to store equipment in the actual waste generation 
or accumulation area--even though the requirement itself applies only 
to the generation and accumulation (and treatment, as appropriate) of 
hazardous waste. Therefore, the generator should have the flexibility 
to store this equipment in other areas of the facility in situations 
where it is infeasible or inappropriate for safety reasons to have the 
equipment located immediately next to hazardous waste generation and 
accumulation areas. EPA proposed to clarify that, while the equipment 
provision applies to only those areas where hazardous waste is either 
being generated or accumulated, the generator may determine the most 
appropriate locations within its facility to locate equipment necessary 
to prepare for and respond to emergencies. EPA requested comment on 
this proposal.
    Commenters generally supported EPA's proposed clarification as it 
provides flexibility in determining the most appropriate locations of 
emergency response equipment, although several commenters suggested 
various changes/clarifications related to the location and 
accessibility of emergency equipment. EPA does not believe these other 
changes/clarifications are necessary and is finalizing Sec.  
262.16(b)(8)(ii) and Sec.  262.252 as proposed.
    b. The meaning of ``immediate access.'' Preparedness and prevention 
provisions include the condition that, whenever hazardous waste is 
being poured, mixed, spread, or otherwise handled, all personnel 
involved in the operation must have immediate access to an internal 
alarm or emergency communication device, either directly or through 
visual or voice contact with another employee, unless such a device is 
not required. At issue is whether the phrase ``immediate access'' is 
clearly understood or whether additional clarity is necessary. EPA 
proposed to modify this language to include the parenthetical ``(e.g., 
direct or unimpeded access)'' after the phrase ``immediate access.'' 
EPA requested comment on the usefulness of modifying this language.
    The majority of commenters supported this modification, although 
one commenter expressed concern regarding what would constitute 
immediate or unimpeded access. Another commenter requested 
clarification as to whether access to a cell phone satisfies the 
requirement for immediate access to an alarm or communication device. 
EPA believes that, although cell phones are a useful means of 
communication, they should not be relied upon solely to satisfy this 
requirement. The Agency is therefore finalizing Sec.  262.16(b)(8)(iv) 
and Sec.  262.254 as proposed.
3. Technical Changes Applicable to Small Quantity Generators
    Based on experience and feedback received from the regulatory 
community and other stakeholders, EPA proposed revisions that address 
two of the four provisions regarding emergency procedures for those 
areas where SQG hazardous waste is generated and accumulated. These 
revisions are as follows.
    a. Require certain information be posted ``next to the telephone.'' 
In the proposed rule, EPA explained that existing regulations were 
unclear where required information (i.e., name/telephone number of the 
emergency coordinator, the location of fire extinguishers, spill 
control material, fire alarms and, as necessary, telephone number of 
the fire department) should be posted in the facility. The Agency 
stated that a facility may have many operations and components that 
have no relationship with the generation and accumulation of hazardous 
waste. EPA noted that stakeholders have recommended deletion of this 
particular provision because, in this age of near-universal 911 
availability, it is not important from a regulatory standpoint to have 
emergency telephone numbers, including the number (and name) of the 
emergency coordinator, and have also asserted that locations of the 
equipment in question should be conveyed to relevant employees and 
displayed in a worker break area rather than the facility office. EPA 
disagreed with eliminating this provision since making such information 
readily available is important for workers and others so that they 
would know what to do and where to go in the case of an emergency. 
However, the Agency nevertheless believed the regulation should be 
modified, adding that it is unclear whether the telephone number for 
the emergency coordinator refers to a home or business phone. With cell 
phones and other means of instant communication now prevalent, EPA 
proposed to modify this language to state that the SQG must post the 
name and emergency telephone number of the emergency coordinator next 
to telephones or in areas directly involved in the generation and 
accumulation of hazardous waste. EPA requested comment on this proposed 
change.
    Commenters generally expressed support for this proposed change, 
although certain commenters questioned the posting of emergency 
information where hazardous waste is generated or accumulated. Some 
commenters requested the option of keeping emergency information on 
cell phones, while another commenter cautioned that cell phone 
reliability could be compromised during a widespread emergency. EPA 
understands that cell phone use may be compromised but also realizes 
that cell phones are widely used and that the inability to use cell 
phones for communication purposes would not prevent an employee from 
accessing stored information, such as land line telephone numbers 
(e.g., home or business phone). The Agency is finalizing Sec.  
262.16(b)(9)(ii) as proposed in order to accord flexibility in 
complying with this SQG requirement.
    b. Allow containment and cleanup to be conducted by a contractor. 
EPA's understanding was that most SQGs would hire a spill cleanup 
contractor to perform containment and cleanup of hazardous waste in the 
event of a spill rather than train employees to perform the response. 
Although EPA agreed that allowing an SQG to hire a contractor trained 
to address hazardous waste spills would be appropriate, the Agency 
indicated that regulations in place arguably do not provide this 
flexibility. EPA proposed to modify this language to allow containment 
and cleanup to either be conducted either by the SQG or by a contractor 
on behalf of the SQG. EPA requested comment on this

[[Page 85792]]

proposed change, including whether any unintended consequences could 
arise from providing SQGs with this flexibility.
    Nearly all of the commenters supported EPA's proposed modification, 
although some commenters opined that existing language already allows 
for contractors to perform this work. Other commenters mentioned that 
the generator is ultimately responsible for ensuring proper response 
and cleanup and a few suggested adding language clarifying contractor 
liability in performing cleanups. EPA is finalizing Sec.  
262.16(b)(9)(iv)(B) as proposed.

C. What is EPA finalizing with changes to proposed rule language?

1. Areas Subject to Preparedness, Contingency Planning, and Emergency 
Procedures Regulations
    EPA stated in the proposal that current preparedness and emergency 
procedures regulations do not clearly state whether they are applicable 
to the entire facility or only to areas where hazardous waste is 
generated and accumulated on site or where allowable treatment may 
occur in accumulation units (i.e., in containers and tanks per EPA 
guidance) and when transported off site for subsequent treatment, 
storage, and disposal. Therefore, EPA proposed that regulations for 
preparedness and prevention and for contingency planning and emergency 
procedures apply only to those areas where hazardous waste is generated 
and accumulated and, where applicable, to those areas where allowable 
treatment may occur in accumulation units. For this reason, EPA 
proposed to explicitly state that the RCRA preparedness and emergency 
procedures regulations are limited strictly to these areas.
    EPA acknowledged that previous Agency guidance indicated RCRA 
preparedness and emergency procedures regulations, including 
development of contingency plans by LQGs, would only apply to 90-day 
accumulation units, otherwise known as CAAs. In this guidance, the 
Agency states that, when developing a contingency plan, LQGs would only 
need to include those 90-day accumulation units involved in the on-site 
management of hazardous waste.\101\ At that time, Agency expressed a 
desire to limit the applicability of these regulations only to these 
areas because several other statutes already address the development 
and implementation of contingency plans associated with other areas of 
a generator facility, such as the storage of chemical materials and 
substances other than hazardous wastes. The Agency also noted that 
considerable overlap exists in the requirements in the various statutes 
and, since 1997, the federal government has encouraged facilities to 
develop integrated contingency plans. Examples include EO 13650 and the 
Agency's aforementioned One Plan guidance.
---------------------------------------------------------------------------

    \101\ Memorandum from Matt Hale, Director of EPA's Office of 
Solid Waste, to RCRA Division Directors, November 7, 2006, RCRA 
Online 14758.
---------------------------------------------------------------------------

    EPA proposed that subpart M apply only to those areas of an LQG 
where hazardous waste is generated and accumulated on site in 
accordance with the conditions in Sec.  262.17. This proposal included 
a parallel change for the emergency procedures regulations for SQGs in 
Sec.  262.16.
    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. Comments were 
roughly split on whether areas besides CAAs, such as SAAs and points of 
generation, should be included within the scope of preparedness and 
planning regulations. Notwithstanding existing guidance, EPA continues 
to believe 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 has not specifically 
defined 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.\102\
---------------------------------------------------------------------------

    \102\ On March 24, 1986, EPA finalized regulations applicable to 
generators of between 100 kg and 1000 kg of hazardous waste in a 
calendar month (51 FR 10146) in which the Agency indicated that 
these generators could treat such waste in accumulation tanks or 
containers without a permit provided that treatment conformed to 
established management standards for tanks and containers. An 
example of subsequent guidance regarding allowable treatment at both 
SQGs and LQGs is a memorandum from Elizabeth Cotsworth, Director of 
EPA's Office of Solid Waste, to RCRA Senior Policy Advisors, August 
16, 2002, RCRA Online 14618.
---------------------------------------------------------------------------

    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 Sec.  
262.16(b)(8) for SQGs and 40 CFR part 262 subpart M for LQGs. This 
includes adding clarifying language in Sec.  262.15(a)(7) and (8) 
regarding the conditions for exemption for both SQGs and LQGs that 
specifically relate to SAAs.
2. Making and Documenting Arrangements With the Local Emergency 
Planning Committees
    EPA noted in the proposal that RCRA generator regulations, which 
were finalized in 1980, have not been updated to reflect significant 
changes to the national, state and local infrastructure for emergency 
planning and response, one of which was passage of the Emergency 
Planning and Community Right-To-Know Act (EPCRA) in 1986. The Agency 
also discussed EPCRA in terms of emergency planning and notification 
requirements, as related to preparedness, prevention and emergency 
procedures established by hazardous waste management regulations. This 
included the roles and responsibilities of Local Emergency Planning 
Committees (LEPCs) under EPCRA. EPA explained that facilities covered 
under EPCRA are required to report chemical information to LEPCs, as 
well as other entities, and that LEPCs are required to prepare a 
comprehensive emergency response plan. Facilities covered by EPCRA 
planning provisions are required to cooperate in emergency plan 
preparation and designate a facility emergency coordinator to 
participate in this process.
    For this reason, EPA proposed revisions to require that SQGs and 
LQGs must first attempt to enter into arrangements with their LEPCs. 
EPA also proposed regulatory text that describes procedures for how a 
facility that is not able to make arrangements with the LEPC would make 
such arrangements with the fire department and other local emergency 
services. The Agency requested comment on its proposal to require an 
SQG or LQG to enter into arrangements with its LEPC unless there is no 
LEPC, the LEPC does not respond, or the LEPC determines that it is not 
the appropriate organization to make arrangements with, in which case 
the SQG or LQG

[[Page 85793]]

would enter into an arrangement with its local emergency responders.
    Due to the fact that some SQGs and LQGs may already coordinate with 
their LEPCs annually as part of their EPCRA requirements, EPA opined 
that it would be unnecessary to include time frames for updating in 
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 also proposed to modify existing regulations to state that the 
generator shall maintain records documenting the arrangements with the 
LEPC or, if appropriate, with the local fire department, as well as any 
other organization necessary to respond to an emergency. The Agency 
asked for comment on this proposed change to documentation, in 
particular, whether local ordinances already require generators to have 
documentation of arrangements with local emergency response 
organizations.
    Finally, the Agency asked for comment on the feasibility of 
providing a waiver from requiring either an SQG or LQG to enter into 
arrangements with an LEPC or, if appropriate, other local authorities 
when they have 24-hour on-site emergency response capabilities, and 
particularly under what circumstances a waiver would be granted.
    The majority of commenters indicated that local emergency 
responders, as opposed to LEPCs, should serve as the initial point-of-
contact for LQGs, citing concerns about an emphasis on LEPCs, which 
usually are not involved in actual responses to emergencies. Regarding 
the extent to which SQGs and LQGs should document efforts to enter into 
arrangements with local authorities/first responders, some commenters 
stated the generator cannot be held responsible for making arrangements 
with a party over which it has no control and noted that a mandated 
arrangement differs greatly from being required only to make an 
``attempt.'' There were also questions on what would constitute 
appropriate documentation. Although there was some opinion to the 
contrary, the majority of commenters believed that large facilities 
with internal emergency response capability should be given a waiver or 
allowed to seek a waiver from entering into arrangements with local 
authorities.
    Based on the comments received, EPA is not finalizing the proposed 
references to LEPCs as the primary contact identified at Sec.  
262.16(b)(8)(vi) and Sec.  262.256 for SQGs and LQGs, respectively. EPA 
is also not finalizing proposed language indicating that generators 
must make arrangements with local responders and is clarifying that 
generators must simply attempt to make arrangements with local 
responders and document either the attempts or, if successful, the 
final arrangements. Some commenters provided feedback in terms of what 
constitutes sufficient ``documentation'' that best efforts were made to 
enter into arrangements. In considering these comments, EPA is revising 
the proposed language at Sec. Sec.  262.16(b)(8)(vi)(B) and 262.256(b) 
to remove 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,'' which would include the contingency plan, 
to provide additional flexibility regarding where such documentation 
can be retained. Finally, during implementation of the final rule, as 
part of coordinating with stakeholders and conducting associated 
outreach activities, EPA 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.
    With respect to large facilities possessing internal emergency 
response capability, EPA is adding language at Sec. Sec.  
262.16(b)(8)(vi)(C) and Sec.  262.256(c) that allows these facilities 
to obtain a waiver from the authority having jurisdiction (AHJ) over 
the fire code within the facility's state or locality in terms of 
entering into arrangements with local authorities provided the waiver 
is documented in the operating record. As previously stated in the 
final rule preamble, 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, practically speaking, the 
AHJ would be in the best position to evaluate whether a particular 
facility, in fact, possesses 24-hour response capabilities. This is 
consistent with the Agency's rationale when discussing waivers from the 
15 meter property line condition in the case of ignitable or reactive 
hazardous waste accumulation. The Agency is similarly allowing 
flexibility regarding how the generator documents that a waiver has 
been obtained.
3. Changes to Contingency Plan Regulations for Large Quantity 
Generators: Submitting a Contingency Plan Executive Summary to 
Emergency Management Authorities
    In the preamble to the proposed rule, EPA noted that RCRA 
regulations on contingency planning and emergency procedures address 
the purpose of the contingency plan, what it must contain, who receives 
copies, how to amend the contingency plan, and responsibilities of the 
facility's emergency coordinator and emergency procedures. The Agency 
also noted that the owner or operator of the facility can develop one 
contingency plan that meets all the regulatory standards for the 
various statutory and regulatory provisions associated with contingency 
planning, which were specifically identified in the proposed rule 
preamble. In doing this, the Agency recommended that generators base 
their contingency plan on the National Response Team's Integrated 
Contingency Plan Guidance One Plan (June 5, 1996: 61 FR 28642).
    EPA's discussions with emergency management professionals indicated 
that the length of the facility contingency plans may prevent first 
responders from being able to fully review these documents when 
responding to an emergency and what first responders really need is 
readily available information describing what they will immediately 
confront upon arrival at the scene. EPA recognized that, once the 
incident is under control, first responders will be able to review the 
contingency plan to determine whether longer-term responses are 
necessary. However, the Agency also indicated that a shorter document, 
such as an executive summary of the contingency plan, would allow a 
more effective initial response to an incident at a facility.
    Based on a review of information required as part of a RCRA 
contingency plan, as well as information required by the local fire 
department, EPA identified certain components that would be useful in 
an executive summary. In particular, EPA proposed to require that the 
following information be included in an executive summary to assist 
emergency responders in the event of an incident: (1) The types/names 
of hazardous wastes in layman's terms and the associated hazard 
associated with each waste present at any one time (e.g., toxic paint 
wastes, spent ignitable solvent, corrosive acid); (2) the estimated 
maximum amount of each waste that may be present at any one time; (3) 
the identification of any hazardous wastes where exposure

[[Page 85794]]

would require a unique or special treatment by medical or hospital 
staff; (4) a map of the site showing where hazardous wastes are 
generated and accumulated and routes for accessing these wastes; (5) a 
street map of the facility in relation to surrounding businesses, 
schools, and residential areas to understand how best to get to the 
facility and also evacuate citizens and workers; (6) the locations of 
water supply (e.g., fire hydrant and its flow rate, drafting 
locations); (7) the identification of on-site notification systems 
(e.g., a fire alarm that rings off site, smoke alarms); and (8) the 
name of the emergency coordinator and 24/7 emergency telephone number.
    Because of the usefulness of a shorter document for emergency 
responders, EPA proposed to require that a new LQG, as of the effective 
date of the rule, submit an executive summary of its contingency plan, 
in addition to the full contingency plan, to the emergency management 
authorities; in particular, LEPCs. Although EPA believed the eight 
elements previously discussed should be included as part of an 
executive summary, the Agency asked for comment on the appropriateness 
of this information.
    Roughly twice as many commenters supported the requirement for an 
executive summary for LQGs than opposed it, arguing that EPA's proposal 
to require a contingency plan executive summary would improve the 
ability of emergency response teams to respond to an incident at an 
LQG's facility. These commenters generally favored including at least 
some of the eight elements as part of contingency plan executive 
summary, although some commenters stated a preference for excluding 
certain elements or suggested others for inclusion. Other commenters 
suggested a document format, such as a table of contents or index that 
allows the reader to quickly access needed information. Some commenters 
disagreed with making submission of the executive summary a mandatory 
requirement, while others advocated flexibility in terms of content and 
submission. One commenter requested clarification as to the meaning of 
``new LQG.'' Commenters who objected to this proposal believed that it 
was unnecessarily prescriptive and duplicative.
    The Agency subsequently decided to modify language at Sec.  
262.262(b)(8) to account for situations where an emergency coordinator 
is continuously on duty in order to ensure consistency with final 
regulatory text at Sec.  262.261(d). Otherwise, the Agency believes 
these elements provide key information for use in the event of an 
emergency, which will be beneficial to workers and the public in 
general. EPA is also requiring new LQGs (i.e., facilities that become 
LQGs after the effective date of this regulation) to develop and submit 
an executive summary of their contingency plan to emergency authorities 
in addition to a full contingency plan. As EPA expressed in the 
proposal and states again in this final rule, developing the executive 
summary during the initial writing of the contingency plan will not be 
a significant extra step. As discussed subsequently, EPA is finalizing 
changes regarding the name of this document (i.e., changing from 
``executive summary'' to ``quick reference guide'') and clarifying how 
existing LQGs are covered by this requirement. Additionally, as noted 
elsewhere in this preamble, EPA is not finalizing proposed references 
to LEPCs in terms of making arrangements with local authorities at 
Sec.  262.16(b)(8)(vi) and Sec.  262.256 for SQGs and LQGs, 
respectively, or submitting a quick reference guide to local emergency 
responders at Sec.  262.262(a) for LQGs.
4. Technical Changes on Personnel Training Applicable to Large Quantity 
Generators
    EPA has acknowledged that, since promulgation of personnel training 
regulations in the 1980s, use of computerized training has become a 
common practice for generators to teach their workers about the 
management of hazardous waste. Due to the fact that many generators 
already use this method for training workers, a modification that 
reflects use of online computer training would simply bring the 
hazardous waste personnel training regulations up to date with existing 
industry practices. Therefore, EPA proposed to also allow a generator 
to use online computer training, in addition to classroom instruction 
and on-the-job training, to complete the personnel training 
requirements. EPA requested comment on this proposed modification.
    The vast majority of commenters supported EPA's proposal to clarify 
that online training is acceptable to meet hazardous waste generator 
training requirements. However, some commenters suggested replacing the 
word ``online'' with ``computer-based'' or ``electronic training'' or 
identifying additional training options. EPA has considered these 
comments and is modifying proposed Sec.  262.17(a)(7)(i)(A) by 
inserting language that takes into account computer-based and/or 
electronic training options.
5. Executive Summary Submission for Existing Large Quantity Generators
    As previously stated, EPA believes that a shorter document, such as 
an executive summary of the contingency plan, which will be referred to 
as a quick reference guide, will allow more effective response to an 
incident at a facility. EPA is requiring new LQGs, in addition to a 
full contingency plan, to develop and submit an executive summary of 
their contingency plan to local emergency responders identified at 
Sec.  262.262(a). With respect to existing LQGs, which have already 
developed and submitted a contingency plan to local emergency 
responders, EPA proposed not to require these facilities to develop an 
executive summary because of the additional burden. However, the Agency 
recommend that existing LQGs may want to submit an executive summary 
when conducting a periodic update on their contingency plans to ensure 
that the emergency responders have the appropriate information on hand 
in the event of an emergency. EPA took comment on whether existing LQGs 
that have already provided a 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 received indicated a very strong preference for requiring 
an existing LQGs to submit an executive summary. However, certain 
commenters suggested that submission should occur when existing LQGs 
update their contingency plans to reflect, for example, personnel 
changes, facility updates, waste relocations, emergency equipment 
upgrades, and other operational or physical alterations. Other 
commenters suggested that submission occur after a specified period of 
time has elapsed.
    In the final rule, EPA is clarifying in new language at Sec.  
262.262(b) regarding existing and new LQGs with respect to preparation 
and submission of a quick reference guide. EPA is also adding new 
language at Sec.  262.262(c) to require that all LQGs update their 
quick reference guides, if necessary, whenever the contingency plan is 
amended. EPA does not consider that the changes to the final 
regulations in this rule would automatically require amendments to an 
existing LQG's contingency plan under the requirements in Sec.  
262.263(a).
    In response to certain comments, EPA is also replacing the term 
``executive summary'' with the term ``quick reference guide'' in order 
to more closely mirror the intended purpose of this document. The 
Agency believes this

[[Page 85795]]

wording better conveys the fact that this document should be prepared 
in a format enabling first responders to quickly access key information 
in the event of an emergency. Lastly, as previously stated, EPA is not 
finalizing references to LEPCs as the primary contact identified at 
Sec.  262.16(b)(8)(vi) and Sec.  262.256 for SQGs and LQGs, 
respectively. Instead, LQGs are directed to submit the quick reference 
guide to local emergency responders identified at Sec.  262.262(a).
6. Other Changes
    EPA proposed to replace the word ``facility'' in these regulations 
regarding emergency preparedness and prevention with the word ``site'' 
because ``facility'' is defined in Sec.  260.10 as specific to TSDFs. 
Certain commenters discussed EPA's proposal. One commenter noted that 
``site'' is too general and could be misinterpreted, while another 
commenter noted that, although the term ``facility'' has a defined 
meaning in RCRA, ``site'' does not. As a result of these comments, EPA 
has reconsidered its proposal and 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 has concluded that use 
of the word ``facility'' in these regulations would also be more 
consistent with the word ``facility,'' which is 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.
    EPA also proposed incorporating a minor revision associated with a 
``comment'' in existing regulatory text into the final rule at Sec.  
262.264 because the Federal Register style no longer permits this kind 
of comment in new regulations. One commenter noted that certain text in 
the comment in question, ``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'' was not incorporated and suggested that this regulatory 
text be retained to give some flexibility to those who must perform 
certain emergency response duties. EPA will incorporate the suggested 
text into Sec.  262.264.

D. What is EPA not including in the final rule?

    EPA asked for comment on certain potential revisions to existing 
regulations that the Agency has subsequently decided not to address as 
part of this final rule. Each is discussed in turn as follows.
1. Changes to Contingency Plan Regulations for LQGs: Including 
Alternative Evacuation Routes in the Contingency Plan
    EPA identified a potential issue regarding whether a contingency 
plan must contain information about alternative evacuation routes or 
whether a different approach for addressing alternative evacuation 
routes would be more effective. This issue resulted from stakeholder 
discussions regarding the Agency's November 2004 Hazardous Waste 
Generator Regulatory Program Evaluation (Docket ID No. RCRA-2003-0014). 
EPA received a comment stating that it does not make sense to include 
in the contingency plan hundreds of possible evacuation routes that may 
be present at a facility, depending on its configuration, along with a 
suggestion that, although regulations should be modified to require 
that evacuation routes be posted and drills be conducted, regulations 
should not require the routes to be in the contingency plan.
    EPA indicated that, although the Agency did not believe regulations 
require all potential evacuation routes be identified, emergency 
responders may need this type of information in order to determine the 
most efficient and timely approach to reach the facility. Therefore, 
EPA requested comment on the necessity of modifying the condition on 
alternative evacuation routes in a contingency plan. EPA also asked for 
comment on whether requirements to post evacuation routes and hold 
annual evacuation training/drills would be an effective substitute to 
maintaining alternative evacuation routes in the contingency plan and 
whether regulations should discuss shelter-in-place as part of the 
contingency plan.
    Slightly more commenters disagreed than agreed with requiring 
alternate evacuation routes in contingency plans. Some commenters noted 
that, while alternative evacuation routes should be considered, they 
may not exist or may not be practical in certain instances. Another 
commenter believed that the decision to require alternative evacuation 
routes should rest with the LEPC. Commenters also offered suggestions 
such as requiring identification of employee muster locations or 
including a map with possible exists marked, with another commenter 
stating that including evacuation routes only in the contingency plan 
is not useful. EPA did not receive many comments regarding either 
posting evacuation routes and holding annual evacuation training/drills 
or discussing shelter-in-place, although the comments received 
indicated support for these approaches.
    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 comments on the proposed rule regarding this issue should be 
considered by facilities when developing or amending contingency plans. 
This would include 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 not 
making any changes to Sec.  262.261(f), as proposed.
2. Changes to Contingency Plan Regulations for LQGs: A Potential 
Electronic RCRA Contingency Planning Application
    EPA 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. A specific example cited was a suite of 
software applications (Computer-Aided Management of Emergency 
Operations), which is used to assist with data management requirements 
under EPCRA. EPA asked whether an additional tool to manage contingency 
plans under RCRA would be a useful addition to this software suite and 
whether it would assist LEPCs by integrating the contingency plan with 
their existing data on facilities, thereby making the information 
available to the first responders in the most usable way. EPA also 
inquired as to the feasibility/effectiveness of private sector parties 
or

[[Page 85796]]

non-profit or governmental entities in developing software that LQGs 
could use to provide important information to emergency responders 
during an emergency.
    The majority of comments received supported electronic submission 
of contingency plans to emergency responders, including five commenters 
who suggested incorporating submissions of contingency plan information 
into existing software applications--two of who preferred this to 
direct submission of the plan--consistent with EPCRA requirements. Some 
commenters cautioned against making electronic submission mandatory and 
a few others indicated that electronic submission of a contingency plan 
would preclude the need for submission of an executive summary. 
Commenters opposed to this approach cited reasons such as unnecessary 
burden and potential lack of availability during a power outage. Few 
comments directly addressed the question of software development, 
beyond mentioning existing software applications, although limited 
feedback did not indicate support for this additional effort.
    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 Sec.  262.262(a) 
regarding transmission of the contingency plan.
3. Additional Information for Contingency Plan Executive Summary
    EPA took comment on certain aspects of the contingency plan 
executive summary, which the Agency is renaming as a quick reference 
guide, related to element #1. This element discusses the types/names of 
hazardous wastes in layman's terms and the associated hazard associated 
with each waste present at any one time. EPA asked whether providing 
information regarding identification of hazardous waste is sufficient 
for ensuring that first responders will be able to identify the 
appropriate actions to take during emergency responses. EPA also asked 
whether referencing material in the North American Emergency Response 
Guide, where appropriate, would be useful (i.e., likely reduce 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. EPA received few 
comments related to element #1, although limited comments received 
seemed to indicate support for including additional information. Given 
the relative lack of comments received and to avoid being overly 
prescriptive, EPA will not make it a requirement to include this 
additional information. The Agency is not making any changes to what 
was proposed at Sec.  262.262(b)(1).
    EPA also took comment regarding whether element #3 of the 
contingency plan executive summary, which discusses identification of 
any hazardous wastes where exposure would require a unique or special 
treatment by medical or hospital staff, should also include a 
requirement that the generator provide medical-related 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. EPA received few comments related to element #3; as such, 
there was no meaningful basis for justifying any additional regulatory 
changes. Although EPA would encourage the generator, in consultation 
with first responders, to include medical-related information 
associated with exposure to certain hazardous wastes, the Agency is not 
making any changes to what was proposed at Sec.  262.262(b)(3).
4. Contingency Plan Executive Summary for SQGs
    Another aspect of the contingency plan executive summary on which 
EPA took comment involved whether an SQG should be required to develop 
an executive summary of a contingency plan. In posing this question, 
EPA noted that the major differences between the preparedness, 
prevention, and emergency procedures regulations applicable to SQGs and 
those applicable to LQGs are the development and implementation of a 
contingency plan and more rigorous responsibilities for the LQG 
emergency coordinator.
    Although SQGs are not required to develop contingency plans under 
RCRA, EPA noted that many SQGs may already have developed contingency 
plans to comply with other statutory and regulatory requirements and 
that many of the elements of an executive summary may already be 
available. For these reasons, EPA thought that the requirement for SQGs 
to provide an executive summary of a contingency plan to first 
responders could provide information that is critical during 
emergencies with little extra effort being expended by the SQGs.
    Although a few commenters supported creation of an executive 
summary for SQGs, the majority did not. Reasons provided included the 
fact that a contingency plan is not required under RCRA and the belief 
that this decision should be made by individual states, as well as the 
potential for unnecessary burden and possibly duplication of effort. 
Other commenters, while seeming not to support creation of an executive 
summary, nonetheless suggested that EPA specify information that would 
be included in the case of SQGs.
    As previously noted, SQGs may have already developed emergency 
plans to comply with other statutory and regulatory requirements, such 
as SPCC or EPCRA. Moreover, under existing RCRA regulations, SQGs are 
required to attempt to make arrangements, as appropriate, with local 
authorities regarding the types of wastes handled at their facilities. 
Therefore, it is possible that these facilities have incorporated 
information regarding hazardous waste management into these emergency 
plans. EPA also recognizes that there exist a large number of SQGs 
operating under RCRA, as compared to LQGs. For instance, as noted 
elsewhere in this rulemaking, EPA estimates the number of SQGs to range 
from approximately 49,900 to 64,300 while the number of LQGs is 
estimated to be approximately 20,800.\103\ 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.
---------------------------------------------------------------------------

    \103\ See ``Regulatory Impact Assessment of the Potential Costs, 
Benefits, and Other Impacts of the Final Hazardous Waste Generator 
Improvements Rule.'' A copy of the analysis is available in the 
docket for this action.
---------------------------------------------------------------------------

5. Revisions to Applicability of Personnel Training
    EPA asked for comment on whether the regulations should 
specifically identify positions at LQGs for which

[[Page 85797]]

hazardous waste training would be required and for which a written job 
description is necessary, as well as what those job duties should be. 
Although current EPA guidance excludes staff working in SAAs from the 
training requirements, the Agency expressed a belief that such 
personnel have a similar need to know the risks associated with 
hazardous wastes as personnel working in central accumulation areas. 
Therefore, EPA also asked for comment on whether personnel involved in 
handling or managing hazardous wastes in SAAs should be required to 
undergo hazardous waste training.
    EPA noted that, besides the statement indicating that personnel 
must be able to respond effectively to emergencies by familiarizing 
them with emergency procedures, emergency equipment, and emergency 
systems, existing regulations are not specific about which personnel at 
an LQG must complete the hazardous waste training. At issue is the 
scope of these training standards, the applicability of the training 
provision to employees who are not assigned to work in the CAAs (e.g., 
personnel working at SAAs), and whether to require training and a 
written job description for specific types of employees working in 
areas of hazardous waste management related to central accumulation 
areas.
    With the assistance of staff from certain states (e.g., 
Connecticut, New York and Vermont), EPA previously identified the 
following areas of hazardous waste management for which personnel 
training and a written job description should be required: (1) 
Completes and/or signs the hazardous waste manifest; (2) manages 
hazardous waste in areas where hazardous wastes are accumulated; (3) 
maintains hazardous waste inventory; (4) conducts daily or weekly 
inspections of areas where hazardous wastes are accumulated and (5) 
plans or responds to emergencies that involve hazardous wastes. EPA 
believed this clarification would have the benefit of assisting LQGs in 
determining more readily the scope of their hazardous waste training 
program. Nevertheless, in the proposal, the Agency requested feedback 
on this issue and others before making a final decision.
    Commenters were generally evenly divided on whether or not the 
regulations should specifically identify positions at LQGs where 
hazardous waste training and a written job description is necessary. 
Supporters who agreed with the areas of hazardous waste management 
identified by EPA also identified additional job functions, including 
those not directly involved in handling hazardous waste that 
effectively expanded the areas of waste management, while others 
believed training should apply to employees who are handling hazardous 
waste on a daily basis. Commenters who did not support specifying 
positions and including written job descriptions expressed concern that 
proposed revisions could, in practice, have the opposite of the 
intended beneficial effect envisioned by the Agency. Certain commenters 
also stated that LQGs would be in the best position to identify 
employee training needs, while others recommended removing the 
requirement for written job descriptions as they believe such 
information does not benefit the facility or inspectors.
    Comments were roughly split on whether EPA should require hazardous 
waste training for personnel who work at SAAs. 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 revise Sec.  262.17(a)(7) to identify areas of hazardous waste 
management for which personnel training and a written job description 
are required or to specifically 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.
6. Revising Frequency of Communication With Emergency Response Agencies
    During discussions related to making and documenting arrangements 
with the LEPCs, EPA noted that existing regulations do not specify how 
frequently hazardous waste generators must make arrangements with local 
authorities. Considering that some SQGs and LQGs may already coordinate 
with their LEPCs annually as part of their EPCRA requirements, EPA 
opined that 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.
    With the exception of one commenter who suggested that arrangements 
should be updated annually, at a minimum, and more frequently if 
modification is needed based on changes such as the type/amount of 
waste generated, comments received did not indicate support for 
revising existing regulations to specify time frames. These commenters 
felt that the provisions necessary for LQGs to communicate with local 
emergency response personnel are already in place or that communication 
should only occur in the event that the facility has a major change in 
its operations. Another commenter indicated that mandating how 
frequently a generator must communicate with its LEPC or local fire 
department would only work if corresponding changes were also made to 
EPCRA requirements. 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 
Sec.  262.16(b)(8)(vi) for SQGs or to Sec.  262.256 for LQGs.
7. Applying Emergency Planning and Procedures Revisions to Parts 264 
and 265
    Although revisions to emergency planning and procedure regulations 
pertain only to generators (language in an expanded 40 CFR part 262), 
many of these provisions were taken from part 265 with only slight 
revisions. Therefore, EPA asked 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.
    Although the majority of those who commented supported making 
changes to TSDF regulations, EPA is not making changes as part of this 
rulemaking because the Agency believes that emergency planning and 
procedure requirements at TSDFs can best be addressed on a facility-
specific basis through the permitting process.

XII. Technical Corrections and Conforming Changes to 40 CFR Parts 257, 
258, 260 Through 265, 270, 273, and 279

    The proposed rule included 23 technical corrections and conforming 
changes to various paragraphs in parts of 257, 258, 260 through 265, 
270, 273, and 279 discussed at 80 FR 57984. These changes eliminate the 
regulatory text for discontinued programs, identify areas where 
conforming changes are

[[Page 85798]]

necessary, update existing regulatory text to account for new programs, 
improve the readability of certain paragraphs, and correct 
typographical errors. As an example, we proposed to revise Sec.  260.3, 
which currently reads, ``As used in parts 260 through 265 and 268 of 
this chapter.'' However, this text fails to account for additional 
parts of the regulations that were promulgated after 1986, such as 
parts 266, 267, and 270 through 273. Therefore, the Agency proposed to 
revise this paragraph to correct this oversight to read, ``As used in 
parts 260 through 273 of this chapter.''

A. What is EPA finalizing?

    The Agency is finalizing 20 of the 23 proposed technical 
corrections. The three proposed technical corrections not being 
finalized in this action are also discussed. In addition, EPA is 
finalizing conforming changes throughout the text to account for the 
reorganization and the changes in defined terms. Also note that EPA is 
making a conforming change to Sec.  266.80(a) in this action to take 
into account the revisions being made as a part of the ``Hazardous 
Waste Export-Import Revisions'' Final Rule (Docket ID EPA-HQ-RCRA-2015-
0147; FRL-9947-74-OLEM).
    The technical corrections the Agency is finalizing are:
    (1) Revise Sec.  260.3, which previously read, ``As used in parts 
260 through 265 and 268 of this chapter'' to currently read ``As used 
in parts 260 through 273 of this chapter'' to account for additional 
parts of the regulations that were promulgated after 1986, such as 
parts 266, 267, and 270 through 273.
    (2) Modify the definitions of ``Treatability Study,'' ``Universal 
Waste Handler,'' ``Universal Waste Transporter'' in Sec.  260.10 to 
only capitalize the first word (e.g., ``Universal'') in order to match 
the formatting in the rest of this section.
    (3) Remove the closed parenthesis after ``(e.g.,)'' from Sec.  
261.1(c)(6).
    (4) Improve the readability of Sec.  261.4(a)(7), which previously 
read, ``Spent sulfuric acid used to produce virgin sulfuric acid, 
unless it is accumulated speculatively as defined in Sec.  261.1(c) of 
this chapter'' to currently read ``Spent sulfuric acid used to produce 
virgin sulfuric acid provided it is not accumulated speculatively as 
defined in Sec.  261.1(c) of this chapter.''
    (5) Make conforming changes to citations that reference Sec.  261.5 
to reflect the reorganization of these regulations. The citations where 
references to Sec.  261.5 are revised include all the following: 
Sec. Sec.  262.10(b), 262.10(l)(2), 262.201(b), 262.204(a), 
262.210(b)(3), 262.210(d)(2), 262.211(e)(3), 262.213(a)(2), 
262.213(a)(3), 262.213(b)(2), 262.216(b), 264.1(g)(1), 268.1(e)(1), 
270.1(c)(2)(iii), and 279.10(b)(3). In Sec.  261.33(e) and (f), EPA is 
removing the references to Sec. Sec.  261.5(e) and 261.5(a) and (g), 
respectively, because the quantity limits for hazardous wastes are 
contained in EPA's definitions for very small quantity generator, small 
quantity generator, and large quantity generator. (Note: The comments 
at the end of Sec.  261.33(e) and (f) remain.)
    (6) Replace the word ``waste'' with ``water'' in previous Sec.  
261.5(e)(2), which read, ``A total of 100 kg of any residue or 
contaminated soil, waste, or other debris resulting from the clean-up 
of a spill, into or on any land or water . . . .'' Prior to 1985, the 
word ``waste'' was ``water'' and the Agency was not able to determine 
why this change occurred so we are reverting back to the original 
regulatory language. (In the reorganization, this language is moved to 
Sec.  260.10 and is contained in the definitions of large quantity 
generator, small quantity generator and very small quantity generator.)
    (7) Revise Sec.  261.420 to clarify that the requirement in Sec.  
261.411(c) that all employees be familiar with proper waste handling 
and emergency procedures relevant to their responsibilities applies to 
facilities that generate or accumulate more than 6,000 kg of hazardous 
materials as well as to facilities that generate or accumulate less 
than that amount.
    (8) Remove Notes 1 and 2 from Sec.  262.10. Note 1 previously 
stated that the provisions of Sec.  262.34 are applicable to the on-
site accumulation of hazardous waste by generators. Therefore, the 
provisions of Sec.  262.34 only apply to owners or operators who are 
shipping hazardous waste which they generated at that facility. Note 2 
previously stated that a generator who treats, stores, or disposes of 
hazardous waste on site must comply with the applicable standards and 
permit requirements set forth in 40 CFR parts 264, 265, 266, 268, and 
270. These notes are no longer necessary because the Agency replaced 
Sec.  262.34 with a new reorganization of the regulations that address 
Note 1 and in Sec.  262.10 that address Note 2.
    (9) Remove the extra period in the last line of the paragraph at 
Sec.  262.10(l).
    (10) Made conforming changes to sections that reference Sec.  
262.34 to reflect EPA's move of these regulations. The citations where 
references to Sec.  262.34 are revised include the following: 
Sec. Sec.  262.10(l)(1), 262.201(a), 262.201(a), 262.216(a), 
264.1(g)(3), 264.71(c), 264.1030(b)(2), 264.1050(b)(2), 265.1(c)(7), 
265.71(c), 265.1030(b)(2) and (b)(3), 268.7(a)(5) and 270.1(c)(2)(i).
    (11) Correct the statutory citation at Sec.  262.43 that referred 
to sections 2002(a) and 3002(6) of the Act. The reference to 3002(6) 
should be to 3002(a)(6). Additionally, the word ``he'' was removed in 
order to be gender neutral.
    (12) Make two conforming changes to the definition of ``central 
accumulation area'' previously found in Sec.  262.200 in subpart K. We 
moved this definition from this location to Sec.  260.10 with the 
following revisions. First, because of the reorganization of the 
regulations in 40 CFR part 262, we changed the references to the 
applicable regulations for the central accumulation areas that are used 
in the definition of central accumulation area in Sec.  262.200. For 
LQGs, the reference to Sec.  262.34(a) has been changed to Sec.  262.17 
and for SQGs, the reference to Sec.  262.34(d) through (f) has been 
changed to Sec.  262.16.
    Second, we removed the reference to Performance Track in the 
definition of ``central accumulation area'' in Sec.  262.200 of subpart 
K because the Performance Track program was terminated (74 FR 22741; 
May 14, 2009). Both of these conforming changes are reflected in the 
definition of ``central accumulation area'' that has been added in 
Sec.  260.10.
    (13) Make conforming changes to citations that previously used the 
term ``conditionally exempt small quantity generator'' to reflect EPA's 
change to the term ``very small quantity generator.'' The citations 
where ``conditionally exempt small quantity generator'' was replaced 
with ``very small quantity generator'' include: Sec. Sec.  262.200, 
262.201(b), 262.202(b), 262.203(a), 262.203(b)(2), 262.204(a), 
262.209(b), 262.210(d)(2), 262.213(a)(3), 268.1(e)(1), 
270.1(c)(2)(iii), 273.8, 273.8(a)(2), 273.81(b), and 279.10(b)(3). EPA 
also made this conforming change in 40 CFR parts 257 and 258 as well. 
Although EPA had not explicitly specified these parts as affected 
citations in the proposal, EPA had explained clearly in the preamble to 
the proposal that we would need to replace the term ``CESQG'' with the 
new term ``VSQG'' throughout the entire EPA regulations.
    (14) Improve the readability of Sec.  264.170, which previously 
read, ``The regulations in this subpart apply to owners and operators 
of all hazardous waste facilities that store containers of hazardous 
waste . . . .'' The Agency revised this language to currently read, 
``The regulations in this subpart apply to owners and operators of all 
hazardous waste facilities that store hazardous waste in containers . . 
. .''

[[Page 85799]]

    (15) Improve the readability of the first sentence in Sec.  
264.191(a), which previously read, ``For each existing tank system . . 
. the owner or operator must determine that the tank system is not 
leaking or is unfit for use.'' The Agency revised this language to 
currently read, ``For each existing tank system . . . the owner or 
operator must determine that the tank system is not leaking or is fit 
for use.''
    (16) Make conforming changes to and improve the readability of 
Sec.  265.1(c)(7), which previously read, ``A generator accumulating 
waste on-site in compliance with Sec.  262.34 of this chapter, except 
to the extent the requirements are included in Sec.  262.34 of this 
chapter.'' The Agency revised this sentence to currently read, ``A 
generator accumulating waste on site in compliance with applicable 
conditions for exemption in Sec.  262.14 though Sec.  262.17 and 
subparts K and L of part 262, except to the extent the requirements of 
this part are included in those section and subparts.'' The new 
references to the conditions for exemption in 262.14 and 262.15, and 
subparts K and L provide the locations of the existing conditions for 
exemption from part 265 for VSQGs, satellite accumulation, and academic 
entities; and the new conditions for exemption for episodic generation.
    (17) Correct the list of Federal Register notices in Sec.  265.54 
to be consistent with the list of references in Sec.  264.54. The 
reference to 53 FR 37935, September 28, 1988, was missing from Sec.  
265.54.
    (18) Make a conforming change that removed and reserved Sec.  
265.201 (Special requirements for generators of between 100 and 1,000 
kg/mo that accumulate hazardous waste in tanks). EPA moved this section 
to Sec.  262.16.
    (19) Add a missing reference to 40 CFR part 268 in Sec.  
270.1(a)(3), which previously read, ``The RCRA permit program . . . in 
40 CFR parts 264, 266, and 267'' to read, ``The RCRA permit program . . 
. in 40 CFR parts 264, 266, 267, and 268. ''

B. What changed since proposal?

    The Agency is not finalizing three technical corrections. First, we 
are not finalizing the conforming change to remove and reserve Sec.  
262.40(c) that was proposed to be moved to Sec.  262.11. One commenter 
pointed out that other parts of the regulations reference Sec.  
262.40(c). In addition, the title of Sec.  262.40 is Recordkeeping and 
it is located in subpart D, titled ``Recordkeeping and Reporting.'' EPA 
has determined that it is appropriate to retain a reference to this 
recordkeeping requirement for generators in this section. Therefore, we 
are including a reference from Sec.  262.40(c) to the recordkeeping 
requirement in Sec.  262.11(f) as part of this final rule.
    Second, the Agency is not finalizing the two proposed technical 
corrections that would have added Sec.  265.445, applicable to drip 
pads, to Sec.  265.111(c) and Sec.  265.114, respectively. As pointed 
out by one commenter, this change is not necessary because and Sec.  
262.17 already references Sec.  265.445 as part of LQGs having to 
comply with part 265 subpart W drip pad regulations.

C. Major Comments

    Except for the comments associated with the proposed changes to 
Sec.  262.40(c), Sec.  265.111(c) and Sec.  265.114, as well as two 
commenters pointing out the inadvertent mistakes at Sec.  261.33(e) and 
(f), commenters were either in support of the proposed technical 
corrections or had no comments associated with these changes.

XIII. Electronic Tools To Streamline Hazardous Waste Reporting and 
Recordkeeping Requirements

    This section summarizes the comments the Agency received regarding 
the feasibility of using electronic tools to support increases in RCRA 
program efficiency and effectiveness. More specifically, in the 
proposed rule, the Agency requested comment on the use of electronic 
tools in three program areas. In section VIII.B.9 of the proposed rule 
(80 FR 57946), the Agency requested comment on the feasibility of 
developing an electronic decision tool to assist generators in making 
accurate hazardous waste determinations. As part of that discussion, 
the Agency requested comment on the feasibility of the private sector 
developing electronic application software (apps) and whether there is 
a market for such an app and what EPA could do to facilitate software 
development. In section VIII.H.3 of the proposed rule (80 FR 57961), 
the Agency requested comment on the feasibility of developing an 
electronic application containing information from the executive 
summaries (now referred to as a ``quick reference guide'') of 
contingency plans that emergency responders could use in responding to 
an emergency. Also, in section XV (80 FR 57985), the Agency explored 
with stakeholders the feasibility of using electronic tools to 
streamline hazardous waste reporting and recordkeeping requirements.
    In broad terms, and as discussed in preamble to the proposed rule, 
the use of electronic tools may be able to help hazardous waste 
generators improve and maintain compliance with the RCRA regulations, 
thereby reducing violations and increasing environmental benefits. 
Similarly, the use of electronic tools may reduce the costs to EPA, the 
states and regulated community for records required to be kept on file, 
or documents required to be reported that currently are submitted on 
paper.
    From an efficiency standpoint, when information is submitted to EPA 
or the states on paper, this requires government staff or contractors 
to manually enter the data into federal and state data systems. These 
processes can be time-consuming, leading sometimes to important 
information going unnoticed, potential errors introduced through manual 
data entry requiring time-consuming correction processes by both 
regulated entities and the government. As an example, when the Toxics 
Release inventory switched from paper reporting to e-reporting, costs 
of managing the data went down by 99 percent and accuracy of 
submissions also was increased. Better use of information technology 
may be an important step to improving program efficiency, and as a 
result, program effectiveness as well. However, at this time, the 
Agency is not finalizing any electronic tools, but will continue to 
evaluate the comments received and explore the feasibility in the 
future.

A. Waste Determination Tools

    Many commenters expressed concerns about the feasibility of 
developing a waste determination decision tool. Three related areas of 
concern frequently stood out in their comments. First, developing a 
decision tool with some measure of reliability would involve a complex 
undertaking. To be effective and helpful, the decision tool would need 
to account of all of the different factors associated with generating a 
waste, including industrial sectors, materials of production, chemical 
processes, and more. Incorporating these many factors into a reliable 
decision tool may not be feasible. Second, because of the complexity 
and time involved, development costs would be expensive, and, as 
several commenters mentioned, costs to maintain the decision tool would 
be expensive as well. As expressed by at least one commenter, if there 
were a viable market for such a tool, the private sector would have 
stepped in by now and developed it. Hence, the viability of such a tool 
being developed by the private sector seems remote. Third, if a tool 
was developed, and if a generator used the tool as the basis of its 
waste determination and it

[[Page 85800]]

was found to be wrong, a difficult question over liability may arise. 
More than one commenter stated that developing a decision tool with 100 
percent accuracy was impossible.
    However, others did see merit in such a tool, if carefully scoped 
out and developed. More than one commenter suggested that EPA consider 
developing a decision tool that focused on common or ``simple'' waste 
streams that could help VSQGs and SQGs in making waste determinations.
    In line with this thought, one commenter recommended that the 
decision tool include `filtering' questions such as ``Does the waste 
vary per batch? Is the waste associated with a particular type of 
manufacturing? Do you know what is in the waste?'' Depending on the 
answers, the generator could proceed or stop since the decision tool 
would not be useful. One commenter went even further by describing an 
analytical approach by having the tool first determine if the waste is 
listed or characteristically hazardous, and then determine if it is 
eligible for one of the exemptions identified in the regulations. By 
performing the determination this way, the generator would be aware 
that the waste could potentially be hazardous if it is managed in a way 
that does not qualify it for an exemption. This commenter also 
suggested that 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. 
That way inspectors and others attempting to verify the determination 
would be able to clearly see the basis for it. Finally, more than one 
commenter suggested EPA focus on the generic process of making a 
hazardous waste determination rather than a waste-specific approach.

B. Emergency Response Executive Summary App

    Interestingly, most commenters did not respond directly to the 
request for comment concerning the viability of developing an emergency 
response executive summary app. For those commenters that did respond, 
comments received were mixed with some favoring development and others 
opposed either because such tools already exist or are under 
development, or because they do not see the need. For example, one 
commenter mentioned that their fire departments were already using 
CAMEO (Computer-Aided Management of Emergency Operations) in such a way 
that some form of integration between the existing CAMEO interface and 
the RCRA contingency planning information would make the most practical 
sense.
    However, several commenters did see the need for electronic 
submittal of contingency plans to make them more accessible and useful, 
although one commenter pointed out that electronic submittal could 
prove problematic during an emergency when power and communications may 
be lost or disrupted.

C. Recordkeeping and Reporting Tools

    Commenters were generally supportive of EPA pursuing the 
development of electronic recordkeeping and reporting tools to improve 
compliance, but in some cases, not mandating their use. One commenter, 
a state, supports the use of electronic tools for managing and 
reporting environmental data, an example being the submittal of 
groundwater monitoring data by municipal solid waste landfill 
facilities. Conversely, another state commenter did not support the 
development of electronic tools that require additional submittals by 
the regulated community, such as submittal of training or inspection 
records. Another state commenter encouraged the use of any electronic 
tools (``e-tools'') for notices or reporting required by regulations 
that would result in a reduction of manual data entry by states.

D. Analysis of Comments

    A review and analysis of comments regarding the feasibility of 
using electronic tools to support increases in RCRA program efficiency 
and effectiveness suggest commenters generally support use of 
electronic tools that reduce costs, have wide applicability, and 
improve program effectiveness. Where those criteria cannot be met, 
support usually was not forthcoming. Hence, many of the commenters did 
not see the cost-effectiveness of developing a waste determination 
decision tool unless properly scoped out to address common or simple 
wastes where the costs of development could be manageable--also 
realizing that using any potential tool developed would be a guide to 
assist generators in making a waste determination and not a definitive 
decision tool that guaranteed an accurate answer.
    As many know, the Agency has already developed an electronic tool 
to enter site identification information on EPA Form 8700-12 as well as 
biennial report information on EPA Form 8700-13 A/B. Similarly, the 
Agency is in the process of developing e-Manifest to increase the 
efficiency and effectiveness of hazardous waste shipments. Based on 
comments, the Agency will continue to review existing RCRA reporting 
and recordkeeping regulatory requirements to identify cost-effective 
areas of opportunity to either use electronic tools or allow for 
submittal of information, such as RCRA contingency plans.

XIV. Enforceability

    Persons that generate hazardous waste must comply with all the 
applicable independent requirements of the RCRA hazardous waste 
regulations, unless they obtain a conditional exemption from those 
requirements, provided by Sec.  262.14, or by Sec.  262.15, 262.16, or 
262.17, or by Sec.  262.70. Each generator category's independent 
requirements are listed in Sec.  262.10 of this final rule. If a person 
violates independent requirements, EPA may bring an enforcement action 
under section 3008 of RCRA for violations of the independent 
requirements. Where a generator does not comply with conditions for an 
exemption and is therefore no longer exempt, the enforcement action 
will allege violations of those requirements for hazardous waste 
storage facilities from which the generator was attempting to remain 
exempt. States may choose to enforce against violations of state 
hazardous waste requirements under state authorities.
    As with any violation, EPA and authorized states have numerous 
enforcement mechanisms available that range in severity. These include 
notices of violation, orders for compliance, orders for operations to 
cease, or assessment of penalties as appropriate. In addition, EPA and 
authorized states have flexibility in applying these mechanisms to the 
various responsible parties as appropriate to the specific 
circumstances. This rule does not affect the availability of any of 
these mechanisms, or EPA's or states' choice as to which type of 
enforcement approach to pursue against violators. The rule does 
distinguish between independent requirements and conditions from 
exemption in the generator regulations: It makes clear that a 
generator's violation of a condition of exemption results in the 
generator losing that exemption, resulting in a violation of the 
hazardous waste storage requirement from which the generator was 
seeking an exemption.

[[Page 85801]]

XV. State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize states to administer 
the RCRA Subtitle C hazardous waste program. Following authorization, 
the authorized state program operates in lieu of the federal 
regulations. EPA retains authority to enforce the authorized state 
Subtitle C program, although authorized states have primary enforcement 
authority. EPA also retains its authority under RCRA sections 3007, 
3008, 3013, and 7003. The standards and requirements for state 
authorization are found at 40 CFR part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a state with final RCRA authorization administered its 
hazardous waste program entirely in lieu of EPA administering the 
federal program in that state. EPA did not issue permits for any 
facilities in that state, since the state was now authorized to issue 
RCRA permits. When new, more stringent federal requirements were 
promulgated, the state was obligated to enact equivalent authorities 
within specified time frames. However, the new requirements did not 
take effect in an authorized state until the state adopted the 
equivalent state requirements.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized states at the same time that they 
take effect in unauthorized states. While states must still adopt HSWA-
related provisions as state law to retain authorization, EPA implements 
the HSWA provisions in authorized states, including the issuance of any 
permits pertaining to HSWA requirements, until the state is granted 
authorization to do so.
    Authorized states are required to modify their programs only when 
EPA promulgates federal requirements that are more stringent or broader 
in scope than existing federal requirements.\104\ RCRA section 3009 
allows the states to impose standards more stringent than those in the 
federal program (see 40 CFR 271.1). Therefore, authorized states may, 
but are not required to, adopt federal regulations, both HSWA and non-
HSWA, that are considered less stringent than previous federal 
regulations.
---------------------------------------------------------------------------

    \104\ EPA notes that decisions regarding whether a state rule is 
more stringent or broader in scope than the federal program are made 
when the Agency authorizes a state program for a particular rule.
---------------------------------------------------------------------------

B. Effect on State Authorization of Final Rule

    This document finalizes regulations that amend certain sections of 
the hazardous waste generator regulations in 40 CFR parts 260 through 
265, 268, 270, 273, and 279. These regulations were promulgated under 
the authority of sections 2002, 3001, 3002, 3003, 3004, 3007, and 3010 
of RCRA). These changes are promulgated under non-HSWA authority.
    Thus, the standards will be applicable on the effective date only 
in those states that do not have final authorization of their base RCRA 
programs. Moreover, authorized states are required to modify their 
programs only when EPA promulgates federal regulations that are more 
stringent or broader in scope than the authorized state regulations. 
For those changes that are less stringent, states are not required to 
modify their programs.
    Several of the revisions to the hazardous waste generator 
regulations are more stringent than those promulgated earlier. These 
include the following: (1) Requiring SQGs, LQGs and transfer facilities 
to better define the 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 (section 
IX.E. of this preamble); (2) requiring LQGs to notify EPA or their 
authorized state when they plan to close their facilities (section IX.I 
of this preamble); (3) requiring SQGs to re-notify every four years 
(section IX.L of this preamble); (4) requiring LQGs to submit a 
biennial report that identifies all of the hazardous wastes generated 
in the calendar year, not just for the months the facility was an LQG 
(sections IX.N of this preamble); (5) requiring LQGs updating their 
contingency plans to prepare a quick reference guide for their 
contingency plans to assist responders in an emergency (section XI of 
this preamble); and (6) requiring facilities that recycle hazardous 
waste without storing the waste to prepare and submit a Biennial 
Report. Therefore, states that have adopted the base RCRA program will 
be required to modify their hazardous waste programs to incorporate 
equivalent provisions if these standards are finalized.
    On the other hand, three of the final revisions are less stringent 
than the current hazardous waste regulations. These revisions include 
the following: (1) Allowing VSQGs to voluntarily send hazardous waste 
to LQGs under the control of the same person (section IX.K of this 
preamble); (2) allowing LQGs to apply for a waiver from their local 
fire department to accumulate ignitable and reactive wastes within the 
50 foot facility boundary (section IX.H of this preamble); and (3) 
allowing VSQGs and SQGs to voluntarily maintain their existing 
regulatory status if they have an episodic event that generates 
additional amounts of hazardous waste which would have resulted in them 
moving into a higher generator category for a short period of time, so 
long as they comply with specified conditions (section X of this 
preamble). Thus, authorized states may, but are not required to, adopt 
these changes.
    This final rule also includes several revisions that are neither 
more nor less stringent, such as (1) reorganizing the hazardous waste 
generator regulations to make them more user-friendly (section VI of 
this preamble); (2) defining central accumulation area and the 
generator categories (section VII of this preamble); (3) mixing a non-
hazardous waste with a hazardous waste (section IX.C of this preamble); 
(4) repeating the prohibition for generators from sending hazardous 
liquids to landfills (section IX.M of this preamble); (5) replacing the 
list of specific data elements with a requirement to complete and 
submit all data elements required in the Biennial Report form (section 
IX.N of this preamble); (6) deleting the performance track and 
laboratories XL regulations (section IX.P of this preamble); and (7) 
technical corrections and conforming changes to various parts of the 
RCRA regulations (section XII of this preamble). Thus, authorized 
states may, but are not required to, adopt these changes.

XVI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. This action is 
a ``significant regulatory action'' in that it may raise novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order. Any 
changes made in response to OMB recommendations have been documented in 
the docket.
    In addition, EPA prepared an analysis of the potential costs and 
benefits associated with this action. This

[[Page 85802]]

analysis is contained in EPA's Regulatory Impact Analysis (RIA) 
document titled ``Regulatory Impact Assessment of the Potential Costs, 
Benefits, and Other Impacts of the Final Hazardous Waste Generator 
Improvements Rule.'' A copy of the analysis is available in the docket 
for this action and the analysis is briefly summarized here.
    EPA estimates the future annualized cost to industry to comply with 
the requirements of this action at between $5.9 and $13.3 million at 7% 
discount rate. Similarly, the annualized cost savings or benefits for 
facilities opting to take advantage of two voluntary programs in the 
rule (e.g., consolidation of VSQG waste by large quantity generators 
under the same ownership, and generators who would not be required to 
change generator status as a result of an episodic event) in 
combination with the less stringent requirements for SQGs accumulating 
waste on drip pads or in containment buildings is between $8.3 and 
$14.4 million at 7% discount rate. This results in a net annualized 
benefit for the whole rule of $2.4 million for the low-end estimate and 
$1.1 million for the high-end estimate at a 7% discount rate.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 2513.02. You can find 
a copy of the ICR in the docket for this rule, and it is briefly 
summarized here. The information collection requirements are not 
enforceable until OMB approves them.
    This rule is necessary for EPA and authorized states to oversee the 
generation and management of hazardous waste. EPA is promulgating the 
establishment of these information collection requirements under the 
authority of RCRA Subtitle C. Several provisions in this rule will 
require respondents to either submit information to EPA or their 
authorized state, or maintain records at their facility. For example, 
generators will have to notify EPA or their authorized state they plan 
to take advantage of two voluntary provisions that will provide greater 
flexibility in how they manage they hazardous waste (i.e., VSQG 
consolidation of their hazardous waste by a LQG under control of the 
same person or company; and episodic generation of hazardous waste 
resulting in a temporary change in regulatory status).
    Similarly, SQGs will have to re-notify EPA or their authorized 
state every four years that they have not changed their regulatory 
category to support effective inspections and program management 
activities. New LQGs and LQGs that have to update their emergency 
response plan will be required to develop and submit a quick reference 
guide of their emergency response plan to their local emergency 
responders or, as appropriate, the Local Emergency Planning Committee 
to effectively assist these parties in responding to an emergency.
    EPA and state agencies will use the collected information to ensure 
that hazardous wastes are managed in a cost-effective manner that 
minimizes risks to human health and the environment. Local emergency 
response organizations will also use the collected information to 
prepare contingency plans to reduce risks to emergency responders and 
bystanders. EPA does not expect confidentiality to be an issue in 
generators either providing information to EPA or an authorized state 
or in maintaining the necessary records required by the rule. The 
statutory authority to collect this information is found at RCRA 3002 
(42 U.S.C. 6922) and RCRA 3003 (42 U.S.C. 6923). Respondents/affected 
entities: Private sector and state and local authorities.
    Respondent's obligation to respond: Mandatory.
    Estimated number of respondents: 167,346.
    Frequency of response: On occasion, annually, and biennially 
depending on the requirement.
    Total estimated burden: 260,366 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $14,184,000 (per year), includes $2,526,000 
in annualized capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves 
this ICR, the Agency will announce that approval in the Federal 
Register and publish a technical amendment to 40 CFR part 9 to display 
the OMB control number for the approved information collection 
activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule.
    The small entities directly regulated by this final rule include 
entities that generate hazardous waste across various industries, 
including, but not limited to, pesticide end-users and application 
services; industrial chemical manufacturers; wood preservation; 
pharmaceutical and other chemical and chemical product manufacturers; 
dry cleaners and industrial launderers; funeral services and 
crematories; photography; textile manufacturing; vehicle maintenance; 
metal manufacturing; construction; printing; professional cleaning 
services; hospitals; and wholesale paints and chemicals. The RIA 
estimated that the compliance costs of the final rule represent less 
than 1 percent of average annual revenues for small entities in the 
affected universe. The RIA used the Economic Census and Census of 
Agriculture data to calculate the average annual revenues of small 
entities in the affected universe. The average annualized costs of the 
rule are estimated to be between $112 and $209 on a per facility basis 
for small entities in the affected universe (using a 7 percent discount 
rate). At most, the RIA estimates the costs of the final rule represent 
between 0.08 and 0.15 percent of annual revenues for small entities in 
the affected universe. Therefore, we have concluded that this action is 
not expected to have a significant impact to a substantial number of 
small entities.

D. Unfunded Mandates Reform Act

    This action does not contain an unfunded mandate of $100 million as 
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or 
uniquely affect small governments. The RIA estimates that the state, 
local, and tribal government share of future average annualized direct 
costs for the final rule requirements to range between $0.2 million and 
$0.4 million per year (using a 7 percent discount rate). Thus, this 
final rule is not subject to the requirements of sections 202 or 205 of 
UMRA.
    This final rule is also not subject to the requirements of section 
203 of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The rulemaking 
finalizes clarifications and

[[Page 85803]]

modifications to the hazardous waste generator regulations, which 
impacts only those entities that generate hazardous waste. Small 
governments would only be subject to the changes in the final rule if 
they generated hazardous waste subject to the RCRA hazardous waste 
requirements.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action may have tribal implications. However, it will neither 
impose substantial direct compliance costs on tribal governments, nor 
preempt tribal law. Under the RCRA statute, the federal government 
implements hazardous waste regulations directly in Indian Country. 
Thus, the final changes to the hazardous waste regulations would not 
impose any direct costs on tribal governments.
    The EPA consulted with tribal officials under the EPA Policy on 
Consultation and Coordination with Indian Tribes early in the process 
of developing this regulation to permit them to have meaningful and 
timely input into its development. A summary of that consultation is 
provided in the docket for this action.
    As required by section 7(a), the EPA's Tribal Consultation Official 
has certified that the requirements of the executive order have been 
met in a meaningful and timely manner. A copy of the certification is 
included in the docket for this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children. The Agency does not believe that this action presents risks 
to the public. In fact, there are several components to this final rule 
that modify the existing hazardous waste generator regulations to 
enhance environmental protection in the local community, which includes 
protection of children. Examples include (1) requiring LQGs and SQGs to 
provide more detailed marking and labeling information for containers, 
tanks, drip pads, and containment buildings accumulating hazardous 
wastes; (2) requiring LQGs to notify EPA or an authorized state when 
they plan to close either a hazardous waste accumulation unit or their 
site; (3) requiring LQGs and SQGs to re-notify EPA or the authorized 
state on a periodic basis of their hazardous waste generator 
activities; and (4) improving emergency preparedness and response 
regulations on the part of SQGs and LQGs.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This final rule does not involve the 
supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environment effects on minority, low-
income and/or indigenous peoples, as specified in Executive Order 12898 
(59 FR 7629, February 16, 1994). The final rule aims to improve human 
health and environmental protection in a variety of ways. For example, 
there are several components to this final rule that modify the 
existing hazardous waste generator regulations to assist generators in 
understanding and facilitating improved compliance with the hazardous 
waste regulations. Examples include clarifying regulations regarding 
the mixing of non-hazardous waste with a hazardous waste by a 
generator, and better explaining the process by which generators 
determine under what level of regulation that they must manage their 
hazardous waste (i.e., determining if they are VSQG, SQG, or LQG). 
Additionally, EPA is reorganizing the hazardous waste generator rules 
to make them more user-friendly and therefore assist generators in 
understanding their responsibilities in managing the hazardous waste 
they generate safely.
    Still other components of this final rule enhance protection of the 
local community, and therefore foster improved human health and 
environmental protection, including for minority and low-income 
populations. These components include, for example, (1) requiring LQGs 
and SQGs to provide more comprehensive marking and labeling information 
for containers, tanks, drip pads, and containment buildings 
accumulating hazardous wastes; (2) requiring LQGs to notify EPA or an 
authorized state when they plan to close either a hazardous waste unit 
or their site; (3) requiring LQGs and SQGs to re-notify EPA or the 
authorized state on a periodic basis of their hazardous waste generator 
activities; and (4) improving emergency preparedness and response 
regulations on the part of SQGs and LQGs.
    Furthermore, EPA is allowing VSQGs to ship their hazardous waste to 
an LQG under the control of the same person. As described in section 
IX.K of the preamble, this may increase environmental protection in the 
local community because hazardous waste generated by VSQGs would be 
subject to more stringent requirements upon receipt by the LQG, 
including ultimate management by a RCRA permitted TSDF (as opposed to 
being managed possibly in a municipal solid waste landfill). Although 
this change could result in an increase in traffic for certain 
communities, EPA believes the increase would not be significant given 
that VSQGs currently may send their hazardous waste to a number of 
destinations, including municipal and non-municipal solid waste 
management facilities.
    Last, EPA is finalizing alternative standards for VSQGs and SQGs 
that would allow these entities to maintain their generator category if 
they generate hazardous waste during an episodic event. Although these 
generators will be allowed to temporarily manage a greater amount of 
hazardous waste than their current generator category allows, EPA is 
finalizing conditions under which the hazardous waste generated from an 
episodic event must be managed in order to maintain protection of human 
health and the environment. Therefore, EPA does not anticipate 
disproportionately high and adverse human health or environmental 
effects on minority, low-income or indigenous populations from these 
alternative standards.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United

[[Page 85804]]

States. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

List of Subjects

40 CFR Part 257

    Environmental protection, Waste treatment and disposal.

40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and disposal, Water pollution control.

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Incorporation by 
reference, Reporting and recordkeeping requirements.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

40 CFR Part 262

    Environmental protection, Exports, Hazardous materials 
transportation, Hazardous waste, Imports, Incorporation by reference, 
Labeling, Packaging and containers, Reporting and recordkeeping 
requirements.

40 CFR Part 263

    Environmental protection, Hazardous materials transportation, 
Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 264

    Environmental protection, Air pollution control, Hazardous waste, 
Insurance, Packaging and containers, Reporting and recordkeeping 
requirements, Security measures, Surety bonds.

40 CFR Part 265

    Environmental protection, Air pollution control, Hazardous waste, 
Incorporation by reference, Insurance, Packaging and containers, 
Reporting and recordkeeping requirements, Security measures, Surety 
bonds, Water supply.

40 CFR Part 266

    Environmental protection, Energy, Hazardous waste, Recycling, 
Reporting and recordkeeping requirements.

40 CFR Part 267

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 270

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Reporting and recordkeeping requirements, Water 
pollution control, Water supply.

40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements, Water pollution control, 
Water supply.

40 CFR Part 273

    Environmental protection, Hazardous materials transportation, 
Hazardous waste.

40 CFR Part 279

    Environmental protection, Petroleum, Recycling, Reporting and 
recordkeeping requirements.

    Dated: October 28, 2016.
Gina McCarthy,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 257--CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL 
FACILITIES AND PRACTICES

0
1. The authority citation for part 257 continues to read as follows:

    Authority: 42 U.S.C. 6907(a)(3), 6912(a)(1), 6944(a), and 
6949a(c); 33 U.S.C. 1345(d) and (e).

0
2. Section 257.1 is amended by revising paragraph (a) introductory text 
to read as follows:


Sec.  257.1  Scope and purpose.

    (a) Unless otherwise provided, the criteria in Sec. Sec.  257.1 
through 257.4 are adopted for determining which solid waste disposal 
facilities and practices pose a reasonable probability of adverse 
effects on health or the environment under sections 1008(a)(3) and 
4004(a) of the Resource Conservation and Recovery Act (The Act). Unless 
otherwise provided, the criteria in Sec. Sec.  257.5 through 257.30 are 
adopted for purposes of ensuring that non-municipal non-hazardous waste 
disposal units that receive very small quantity generator (VSQG) waste 
do not present risks to human health and the environment taking into 
account the practicable capability of such units in accordance with 
section 4010(c) of the Act. Unless otherwise provided, the criteria in 
Sec. Sec.  257.50 through 257.107 are adopted for determining which CCR 
landfills and CCR surface impoundments pose a reasonable probability of 
adverse effects on health or the environment under sections 1008(a)(3) 
and 4004(a) of the Act.
* * * * *

0
3. Section 257.2 is amended by revising the definition for Construction 
and demolition (C&D) landfill to read as follows:


Sec.  257.2  Definitions.

* * * * *
    Construction and demolition (C&D) landfill means a solid waste 
disposal facility subject to the requirements of subparts A or B of 
this part that receives construction and demolition waste and does not 
receive hazardous waste (defined in Sec.  261.3 of this chapter) or 
industrial solid waste (defined in Sec.  258.2 of this chapter). Only a 
C&D landfill that meets the requirements of subpart B of this part may 
receive very small quantity generator waste (defined in Sec.  260.10 of 
this chapter). A C&D landfill typically receives any one or more of the 
following types of solid wastes: Roadwork material, excavated material, 
demolition waste, construction/renovation waste, and site clearance 
waste.
* * * * *

0
4. Part 257 is amended by revising the heading for Subpart B to read as 
follows:

Subpart B--Disposal Standards for the Receipt of Very Small 
Quantity Generator (VSQG) Wastes at Non-Municipal Non-Hazardous 
Waste Disposal Units

0
5. Section 257.5 is amended by revising its section heading; paragraph 
(a); and the paragraph (b) definitions of ``Existing unit'' and ``New 
unit'' to read as follows:


Sec.  257.5  Disposal standards for owners/operators of non-municipal 
non-hazardous waste disposal units that receive Very Small Quantity 
Generator (VSQG) waste.

    (a) Applicability. (1) The requirements in this section apply to 
owners/operators of any non-municipal non-hazardous waste disposal unit 
that receives VSQG hazardous waste, as defined in 40 CFR 260.10. Non-

[[Page 85805]]

municipal non-hazardous waste disposal units that meet the requirements 
of this section may receive VSQG wastes. Any owner/operator of a non-
municipal non-hazardous waste disposal unit that receives VSQG 
hazardous waste continues to be subject to the requirements in 
Sec. Sec.  257.3-2, 257.3-3, 257.3-5, 257.3-6, 257.3-7, and 257.3-8(a), 
(b), and (d).
    (2) Any non-municipal non-hazardous waste disposal unit that is 
receiving VSQG hazardous waste as of January 1, 1998, must be in 
compliance with the requirements in Sec. Sec.  257.7 through 257.13 and 
Sec.  257.30 by January 1, 1998, and the requirements in Sec. Sec.  
257.21 through 257.28 by July 1, 1998.
    (3) Any non-municipal non-hazardous waste disposal unit that does 
not meet the requirements in this section may not receive VSQG wastes.
    (4) Any non-municipal non-hazardous waste disposal unit that is not 
receiving VSQG Hazardous waste as of January 1, 1998, continues to be 
subject to the requirements in Sec. Sec.  257.1 through 257.4.
    (5) Any non-municipal non-hazardous waste disposal unit that first 
receives VSQG hazardous waste after January 1, 1998, must be in 
compliance with Sec. Sec.  257.7 through 257.30 prior to the receipt of 
VSQG hazardous waste.
    (b) * * *
    Existing unit means any non-municipal non-hazardous waste disposal 
unit that is receiving VSQG hazardous waste as of January 1, 1998.
* * * * *
    New unit means any non-municipal non-hazardous waste disposal unit 
that has not received VSQG hazardous waste prior to January 1, 1998.
* * * * *


Sec.  257.13  [Amended]

0
6. Amend Sec.  257.13 by removing the text ``CESQG'' and adding the 
text ``VSQG'' in its place.

0
7. Section 257.21 is amended by revising paragraph (h) introductory 
text to read as follows:


Sec.  257.21  Applicability.

* * * * *
    (h) Directors of approved States can use the flexibility in 
paragraph (i) of this section for any non-municipal non-hazardous waste 
disposal unit that receives VSQG waste, if the non-municipal non-
hazardous waste disposal unit:
* * * * *

PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS

0
8. The authority citation for part 258 continues to read as follows:

    Authority: 33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 
6912(a), 6944, 6945(c) and 6949a(c), 6981(a).

0
9. Section 258.2 is amended by revising the definitions for 
``Construction and demolition (C&D) landfill'' and ``Municipal solid 
waste landfill (MSWLF)'' to read as follows:


Sec.  258.2  Definitions.

* * * * *
    Construction and demolition (C&D) landfill means a solid waste 
disposal facility subject to the requirements in part 257, subparts A 
or B of this chapter that receives construction and demolition waste 
and does not receive hazardous waste (defined in Sec.  261.3 of this 
chapter) or industrial solid waste (defined in this section). Only a 
C&D landfill that meets the requirements of 40 CFR part 257, subpart B 
may receive very small quantity generator waste (defined in Sec.  
260.10 of this chapter). A C&D landfill typically receives any one or 
more of the following types of solid wastes: Roadwork material, 
excavated material, demolition waste, construction/renovation waste, 
and site clearance waste.
* * * * *
    Municipal solid waste landfill (MSWLF) unit means a discrete area 
of land or an excavation that receives household waste, and that is not 
a land application unit, surface impoundment, injection well, or waste 
pile, as those terms are defined under Sec.  257.2 of this chapter. A 
MSWLF unit also may receive other types of RCRA Subtitle D wastes, such 
as commercial solid waste, nonhazardous sludge, very small quantity 
generator waste and industrial solid waste. Such a landfill may be 
publicly or privately owned. A MSWLF unit may be a new MSWLF unit, an 
existing MSWLF unit or a lateral expansion. A construction and 
demolition landfill that receives residential lead-based paint waste 
and does not receive any other household waste is not a MSWLF unit.
* * * * *

0
10. Section 258.20 is amended by revising paragraph (b) to read as 
follows:


Sec.  258.20  Procedures for excluding the receipt of hazardous waste.

* * * * *
    (b) For purposes of this section, regulated hazardous waste means a 
solid waste that is a hazardous waste, as defined in 40 CFR 261.3, that 
is not excluded from regulation as a hazardous waste under 40 CFR 
261.4(b) or was not generated by a very small quantity generator as 
defined in Sec.  260.10 of this chapter.

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
11. The authority citation for part 260 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.

0
12. Section 260.3 is amended by revising the introductory text to read 
as follows:


Sec.  260.3  Use of number and gender.

    As used in parts 260 through 273 of this chapter:
* * * * *

0
13. Amend Sec.  260.10 by:
0
a. Adding in alphabetical order the definitions of ``Acute hazardous 
waste'', ``Central accumulation area'', ``Large quantity generator'', 
and ``Non-acute hazardous waste'';
0
b. Removing the definition for ``Performance Track member facility'';
0
c. Revising the definition of ``Small quantity generator'';
0
d. Revising the heading of the definition ``Treatability Study'' to 
read ``Treatability study'';
0
e. Revising the heading of the definition ``Universal Waste Handler'' 
to read ``Universal waste handler'';
0
f. Revising the heading of the definition ``Universal Waste 
Transporter'' to read ``Universal waste transporter''; and
0
g. Adding in alphabetical order the definition of ``Very small quantity 
generator''.
    The revisions and additions read as follows:


Sec.  260.10  Definitions.

* * * * *
    Acute hazardous waste means hazardous wastes that meet the listing 
criteria in Sec.  261.11(a)(2) and therefore are either listed in Sec.  
261.31 of this chapter with the assigned hazard code of (H) or are 
listed in Sec.  261.33(e) of this chapter.
* * * * *
    Central accumulation area means any on-site hazardous waste 
accumulation area with hazardous waste accumulating in units subject to 
either Sec.  262.16 (for small quantity generators) or Sec.  262.17 of 
this chapter (for large quantity generators). A central accumulation 
area at an eligible academic entity that chooses to operate under 40 
CFR part 262 subpart K is also subject to Sec.  262.211 when 
accumulating unwanted material and/or hazardous waste.
* * * * *
    Large quantity generator is a generator who generates any of the 
following amounts in a calendar month:

[[Page 85806]]

    (1) Greater than or equal to 1,000 kilograms (2200 lbs) of non-
acute hazardous waste; or
    (2) Greater than 1 kilogram (2.2 lbs) of acute hazardous waste 
listed in Sec.  261.31 or Sec.  261.33(e) of this chapter; or
    (3) Greater than 100 kilograms (220 lbs) 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 
listed in Sec.  261.31 or Sec.  261.33(e) of this chapter.
* * * * *
    Non-acute hazardous waste means all hazardous wastes that are not 
acute hazardous waste, as defined in this section.
* * * * *
    Small quantity generator is a generator who generates the following 
amounts in a calendar month:
    (1) Greater than 100 kilograms (220 lbs) but less than 1,000 
kilograms (2200 lbs) of non-acute hazardous waste; and
    (2) Less than or equal to 1 kilogram (2.2 lbs) of acute hazardous 
waste listed in Sec.  261.31 or Sec.  261.33(e) of this chapter; and
    (3) Less than or equal to 100 kilograms (220 lbs) 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 
listed in Sec.  261.31 or Sec.  261.33(e) of this chapter.
* * * * *
    Very small quantity generator is a generator who generates less 
than or equal to the following amounts in a calendar month:
    (1) 100 kilograms (220 lbs) of non-acute hazardous waste; and
    (2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in Sec.  
261.31 or Sec.  261.33(e) of this chapter; and
    (3) 100 kilograms (220 lbs) 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 listed in Sec.  
261.31 or Sec.  261.33(e) of this chapter.
* * * * *

0
14. Section 260.11 is amended by revising the section heading and 
paragraph (d)(1) to read as follows:


Sec.  260.11  Incorporation by reference.

* * * * *
    (d) * * *
    (1) ``Flammable and Combustible Liquids Code'' (NFPA 30), 1977 or 
1981, IBR approved for Sec. Sec.  262.16(b), 264.198(b), 265.198(b), 
267.202(b).
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
15. The authority citation for part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

0
16. Section 261.1 is amended by revising paragraphs (a)(1) and (c)(6) 
to read as follows:


Sec.  261.1  Purpose and scope.

    (a) * * *
    (1) Subpart A defines the terms ``solid waste'' and ``hazardous 
waste'', identifies those wastes which are excluded from regulation 
under parts 262 through 266, 268 and 270 of this chapter and 
establishes special management requirements for hazardous waste 
produced by very small quantity generators and hazardous waste which is 
recycled.
* * * * *
    (c) * * *
    (6) ``Scrap metal'' 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 (e.g., radiators, scrap automobiles, 
railroad box cars), which when worn or superfluous can be recycled.
* * * * *

0
17. Section 261.4 is amended by revising paragraph (a)(7) to read as 
follows:


Sec.  261.4  Exclusions.

    (a) * * *
    (7) Spent sulfuric acid used to produce virgin sulfuric acid 
provided it is not accumulated speculatively as defined in Sec.  
261.1(c) of this chapter.
* * * * *


Sec.  261.5  [Removed and reserved]

0
18. Remove and reserve Sec.  261.5.

0
19. Section 261.6 is amended by adding paragraph (c)(2)(iv) to read as 
follows:


Sec.  261.6  Requirements for recyclable materials.

* * * * *
    (c) * * *
    (2) * * *
    (iv) Section 265.75 of this chapter (biennial reporting 
requirements).
* * * * *

0
20. Section 261.33 is amended by revising paragraphs (e) introductory 
text and (f) introductory text to read as follows:


Sec.  261.33  Discarded commercial chemical products, off-specification 
species, container residues, and spill residues thereof.

* * * * *
    (e) The commercial chemical products, manufacturing chemical 
intermediates or off-specification commercial chemical products or 
manufacturing chemical intermediates referred to in paragraphs (a) 
through (d) of this section, are identified as acute hazardous wastes 
(H).
* * * * *
    (f) The commercial chemical products, manufacturing chemical 
intermediates, or off-specification commercial chemical products 
referred to in paragraphs (a) through (d) of this section, are 
identified as toxic wastes (T) unless otherwise designated.
* * * * *

0
21. Section 261.420 is amended by adding paragraph (g) to read as 
follows:


Sec.  261.420  Contingency planning and emergency procedures for 
facilities generating or accumulating more than 6000 kg of hazardous 
secondary material.

* * * * *
    (g) Personnel training. All employees must be thoroughly familiar 
with proper waste handling and emergency procedures relevant to their 
responsibilities during normal facility operations and emergencies.

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

0
22. The authority citation for part 262 continues to read as follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

Subpart A--General

0
23. Section 262.1 is added to subpart A to read as follows:


Sec.  262.1  Terms used in this part.

    As used in this part:
    Condition for exemption means any requirement in Sec. Sec.  262.14, 
262.15, 262.16, 262.17, 262.70, or subpart K or subpart L of this part 
that states an event, action, or standard that must occur or be met in 
order to obtain an exemption from any applicable requirement in parts 
124, 264 through 268, and 270 of this chapter, or from any requirement 
for notification under section 3010 of RCRA.
    Independent requirement means a requirement of part 262 that states 
an event, action, or standard that must occur or be met; and that 
applies without relation to, or irrespective of, the purpose of 
obtaining a conditional

[[Page 85807]]

exemption from storage facility permit, interim status, and operating 
requirements under Sec. Sec.  262.14, 262.15, 262.16, 262.17, or 
subpart K or subpart L of this part.

0
 24. Section 262.10 is amended by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing and reserving paragraph (c);
0
c. Revising paragraph (d);
0
d. Revising paragraph (g);
0
e. Removing and reserving paragraph (j); and
0
f. Revising paragraph (l).
    The revisions read as follows:


Sec.  262.10  Purpose, scope, and applicability.

    (a) The regulations in this part establish standards for generators 
of hazardous waste as defined by 40 CFR 260.10.
    (1) A person who generates a hazardous waste as defined by 40 CFR 
part 261 is subject to all the applicable independent requirements in 
the subparts and sections listed below:
    (i) Independent requirements of a very small quantity generator. 
(A) Section 262.11(a) through (d) Hazardous waste determination and 
recordkeeping; and
    (B) Section 262.13 Generator category determination.
    (ii) Independent requirements of a small quantity generator. (A) 
Section 262.11 Hazardous waste determination and recordkeeping;
    (B) Section 262.13 Generator category determination;
    (C) Section 262.18 EPA identification numbers and re-notification 
for small quantity generators and large quantity generators;
    (D) Part 262 subpart B--Manifest requirements applicable to small 
and large quantity generators;
    (E) Part 262 subpart C--Pre-transport requirements applicable to 
small and large quantity generators;
    (F) Section 262.40 Recordkeeping;
    (G) Section 262.44 Recordkeeping for small quantity generators; and
    (H) Part 262 subpart H--Transboundary movements of hazardous waste 
for recovery or disposal.
    (iii) Independent requirements of a large quantity generator. (A) 
Section 262.11 Hazardous waste determination and recordkeeping;
    (B) Section 262.13 Generator category determination;
    (C) Section 262.18 EPA identification numbers and re-notification 
for small quantity generators and large quantity generators;
    (D) Part 262 subpart B--Manifest requirements applicable to small 
and large quantity generators;
    (E) Part 262 subpart C--Pre-transport requirements applicable to 
small and large quantity generators;
    (F) Part 262 subpart D--Recordkeeping and reporting applicable to 
small and large quantity generators, except Sec.  262.44; and
    (G) Part 262 subpart H--Transboundary movements of hazardous waste 
for recovery or disposal.
    (2) A generator that accumulates hazardous waste on site is a 
person that stores hazardous waste; such generator is subject to the 
applicable requirements of parts 124, 264 through 267, and 270 of this 
chapter and section 3010 of RCRA, unless it is one of the following:
    (i) A very small quantity generator that meets the conditions for 
exemption in Sec.  262.14;
    (ii) A small quantity generator that meets the conditions for 
exemption in Sec. Sec.  262.15 and 262.16; or
    (iii) A large quantity generator that meets the conditions for 
exemption in Sec. Sec.  262.15 and 262.17.
    (3) A generator shall not transport, offer its hazardous waste for 
transport, or otherwise cause its hazardous waste to be sent to a 
facility that is not a designated facility, as defined in Sec.  260.10 
of this chapter, or not otherwise authorized to receive the generator's 
hazardous waste.
    (b) Determining generator category. A generator must use Sec.  
262.13 to determine which provisions of this part are applicable to the 
generator based on the quantity of hazardous waste generated per 
calendar month.
* * * * *
    (d) Any person who exports or imports hazardous wastes must comply 
with Sec.  262.18 and subpart H of this part.
* * * * *
    (g)(1) A generator's violation of an independent requirement is 
subject to penalty and injunctive relief under section 3008 of RCRA.
    (2) A generator's noncompliance with a condition for exemption in 
this part is not subject to penalty or injunctive relief under section 
3008 of RCRA as a violation of a 40 CFR part 262 condition for 
exemption. Noncompliance by any generator with an applicable condition 
for exemption from storage permit and operations requirements means 
that the facility is a storage facility operating without an exemption 
from the permit, interim status, and operations requirements in 40 CFR 
parts 124, 264 through 267, and 270 of this chapter, and the 
notification requirements of section 3010 of RCRA. Without an 
exemption, any violations of such storage requirements are subject to 
penalty and injunctive relief under section 3008 of RCRA.
* * * * *
    (l) The laboratories owned by an eligible academic entity that 
chooses to be subject to the requirements of subpart K of this part are 
not subject to (for purposes of this paragraph, the terms 
``laboratory'' and ``eligible academic entity'' shall have the meaning 
as defined in Sec.  262.200):
    (1) The independent requirements of Sec.  262.11 or the regulations 
in Sec.  262.15 for large quantity generators and small quantity 
generators, except as provided in subpart K, and
    (2) The conditions of Sec.  262.14, for very small quantity 
generators, except as provided in subpart K.
* * * * *

0
25. Revise Sec.  262.11 to read as follows:


Sec.  262.11  Hazardous waste determination and recordkeeping.

    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. A hazardous waste 
determination is made using the following steps:
    (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.
    (b) A person must determine whether the solid waste is excluded 
from regulation under 40 CFR 261.4.
    (c) If the waste is not excluded under 40 CFR 261.4, the person 
must then use knowledge of the waste to determine whether the waste 
meets any of the listing descriptions under subpart D of 40 CFR part 
261. Acceptable knowledge that may be used in making an accurate 
determination as to whether the waste is listed may include waste 
origin, composition, the process producing the waste, feedstock, and 
other reliable and relevant information. If the waste is listed, the 
person may file a delisting petition under 40 CFR 260.20 and 260.22 to 
demonstrate to the Administrator that the waste from this particular 
site or operation is not a hazardous waste.
    (d) The person then must also determine whether the waste exhibits 
one or more hazardous characteristics as

[[Page 85808]]

identified in subpart C of 40 CFR part 261 by following the procedures 
in paragraph (d)(1) or (2) of this section, or a combination of both.
    (1) The person must apply knowledge of the hazard characteristic of 
the waste in light of the materials or the processes used to generate 
the waste. Acceptable knowledge may include process knowledge (e.g., 
information about chemical feedstocks and other inputs to the 
production process); knowledge of products, by-products, and 
intermediates produced by the manufacturing process; chemical or 
physical characterization of wastes; information on the chemical and 
physical properties of the chemicals used or produced by the process or 
otherwise contained in the waste; testing that illustrates the 
properties of the waste; or other reliable and relevant information 
about the properties of the waste or its constituents. A test other 
than a test method set forth in subpart C of 40 CFR part 261, or an 
equivalent test method approved by the Administrator under 40 CFR 
260.21, may be used as part of a person's knowledge to determine 
whether a solid waste exhibits a characteristic of hazardous waste. 
However, such tests do not, by themselves, provide definitive results. 
Persons testing their waste must obtain a representative sample of the 
waste for the testing, as defined at 40 CFR 260.10.
    (2) When available knowledge is inadequate to make an accurate 
determination, 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:
    (i) Persons testing their waste must obtain a representative sample 
of the waste for the testing, as defined at 40 CFR 260.10.
    (ii) Where a test method is specified in subpart C of 40 CFR part 
261, the results of the regulatory test, when properly performed, are 
definitive for determining the regulatory status of the waste.
    (e) 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.
    (f) Recordkeeping for small and large quantity generators. A small 
or large quantity generator must maintain records supporting its 
hazardous waste determinations, including records that identify whether 
a solid waste is a hazardous waste, as defined by 40 CFR 261.3. 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. These records must comprise the generator's knowledge of the 
waste and support the generator's determination, as described at 
paragraphs (c) and (d) of this section. The records must include, but 
are not limited to, the following types of information: The results of 
any tests, sampling, waste analyses, or other determinations made in 
accordance with this section; records documenting the tests, sampling, 
and analytical methods used to demonstrate 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 paragraph (d)(1) of 
this section. The periods of record retention referred to in this 
section are extended automatically during the course of any unresolved 
enforcement action regarding the regulated activity or as requested by 
the Administrator.
    (g) Identifying hazardous waste numbers for small and large 
quantity generators. If the waste is determined to be hazardous, small 
quantity generators and large quantity generators must identify all 
applicable EPA hazardous waste numbers (EPA hazardous waste codes) in 
subparts C and D of part 261 of this chapter. Prior to shipping the 
waste off site, the generator also must mark its containers with all 
applicable EPA hazardous waste numbers (EPA hazardous waste codes) 
according to Sec.  262.32.


Sec.  262.12  [Removed and reserved]

0
26. Remove and reserve Sec.  262.12.

0
27. Subpart A of part 262 is amended by adding Sec. Sec.  262.13 
through 262.18 to read as follows:

Subpart A--General

* * * * *
Sec.
262.13 Generator category determination.
262.14 Conditions for exemption for a very small quantity generator.
262.15 Satellite accumulation area regulations for small and large 
quantity generators.
262.16 Conditions for exemption for a small quantity generator that 
accumulates hazardous waste.
262.17 Conditions for exemption for a large quantity generator that 
accumulates hazardous waste.
262.18 EPA identification numbers and re-notification for small 
quantity generators and large quantity generators.
* * * * *


Sec.  262.13  Generator category determination.

    A generator must determine its generator category. A generator's 
category is based on the amount of hazardous waste generated each month 
and may change from month to month. This section sets forth procedures 
to determine whether a generator is a very small quantity generator, a 
small quantity generator, or a large quantity generator for a 
particular month, as defined in Sec.  260.10 of this chapter.
    (a) Generators of either acute hazardous waste or non-acute 
hazardous waste. A generator who either generates acute hazardous waste 
or non-acute hazardous waste in a calendar month shall determine its 
generator category for that month by doing the following:
    (1) Counting the total amount of hazardous waste generated in the 
calendar month;
    (2) Subtracting from the total any amounts of waste exempt from 
counting as described in paragraphs (c) and (d) of this section; and
    (3) Determining the resulting generator category for the hazardous 
waste generated using Table 1 of this section.
    (b) Generators of both acute and non-acute 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:
    (1) Counting separately the total amount of acute hazardous waste 
and the total amount of non-acute hazardous waste generated in the 
calendar month;
    (2) Subtracting from each total any amounts of waste exempt from 
counting as described in paragraphs (c) and (d) of this section;
    (3) Determining separately the resulting generator categories for 
the quantities of acute and non-acute hazardous waste generated using 
Table 1 of this section; and
    (4) Comparing the resulting generator categories from paragraph 
(b)(3) of this section and applying the more stringent generator 
category to the accumulation and management of both non-acute hazardous 
waste and acute hazardous waste generated for that month.

[[Page 85809]]



     Table 1 to Sec.   262.13--Generator Categories Based on Quantity of Waste Generated in a Calendar Month
----------------------------------------------------------------------------------------------------------------
                                                                  Quantity of residues
                                        Quantity of non-acute   from a cleanup of acute
  Quantity of acute hazardous waste        hazardous waste          hazardous waste         Generator category
    generated in a calendar month      generated in a calendar  generated in a calendar
                                                month                    month
----------------------------------------------------------------------------------------------------------------
> 1 kg...............................  Any amount.............  Any amount.............  Large quantity
                                                                                          generator.
Any amount...........................  >= 1,000 kg............  Any amount.............  Large quantity
                                                                                          generator.
Any amount...........................  Any amount.............  > 100 kg...............  Large quantity
                                                                                          generator.
<= 1 kg..............................  > 100 kg and < 1,000 kg  <= 100 kg..............  Small quantity
                                                                                          generator.
<= 1 kg..............................  <= 100 kg..............  <= 100 kg..............  Very small quantity
                                                                                          generator.
----------------------------------------------------------------------------------------------------------------

    (c) When making the monthly quantity-based determinations required 
by this part, the generator must include all hazardous waste that it 
generates, except hazardous waste that:
    (1) Is exempt from regulation under 40 CFR 261.4(c) through (f), 
261.6(a)(3), 261.7(a)(1), or 261.8;
    (2) Is managed immediately upon generation only in on-site 
elementary neutralization units, wastewater treatment units, or totally 
enclosed treatment facilities as defined in 40 CFR 260.10;
    (3) Is recycled, without prior storage or accumulation, only in an 
on-site process subject to regulation under 40 CFR 261.6(c)(2);
    (4) Is used oil managed under the requirements of 40 CFR 
261.6(a)(4) and 40 CFR part 279;
    (5) Is spent lead-acid batteries managed under the requirements of 
40 CFR part 266 subpart G;
    (6) Is universal waste managed under 40 CFR 261.9 and 40 CFR part 
273;
    (7) Is a hazardous waste that is an unused commercial chemical 
product (listed in 40 CFR part 261 subpart D or exhibiting one or more 
characteristics in 40 CFR part 261 subpart C) that is generated solely 
as a result of a laboratory clean-out conducted at an eligible academic 
entity pursuant to Sec.  262.213. For purposes of this provision, the 
term eligible academic entity shall have the meaning as defined in 
Sec.  262.200; or
    (8) Is managed as part of an episodic event in compliance with the 
conditions of subpart L of this part.
    (d) In determining the quantity of hazardous waste generated in a 
calendar month, a generator need not include:
    (1) Hazardous waste when it is removed from on-site accumulation, 
so long as the hazardous waste was previously counted once;
    (2) Hazardous waste generated by on-site treatment (including 
reclamation) of the generator's hazardous waste, so long as the 
hazardous waste that is treated was previously counted once; and
    (3) Hazardous waste spent materials that are generated, reclaimed, 
and subsequently reused on site, so long as such spent materials have 
been previously counted once.
    (e) Based on the generator category as determined under this 
section, the generator must meet the applicable independent 
requirements listed in Sec.  262.10. A generator's category also 
determines which of the provisions of Sec. Sec.  262.14, 262.15, 262.16 
or 262.17 must be met to obtain an exemption from the storage facility 
permit, interim status, and operating requirements when accumulating 
hazardous waste.
    (f) Mixing hazardous wastes with solid wastes--(1) Very small 
quantity generator wastes. (i) Hazardous wastes generated by a very 
small quantity generator may be mixed with solid wastes. Very small 
quantity generators may mix a portion or all of its hazardous waste 
with solid waste and remain subject to Sec.  262.14 even though the 
resultant mixture exceeds the quantity limits identified in the 
definition of very small quantity generator at Sec.  260.10 of this 
chapter, unless the mixture exhibits one or more of the characteristics 
of hazardous waste identified in part 261 subpart C of this chapter.
    (ii) If the resulting mixture exhibits a characteristic of 
hazardous waste, this resultant mixture is a newly-generated hazardous 
waste. The very small quantity generator must count both the resultant 
mixture amount plus the other hazardous waste generated in the calendar 
month to determine whether the total quantity exceeds the very small 
quantity generator calendar month quantity limits identified in the 
definition of generator categories found in Sec.  260.10 of this 
chapter. If so, to remain exempt from the permitting, interim status, 
and operating standards, the very small quantity generator must meet 
the conditions for exemption applicable to either a small quantity 
generator or a large quantity generator. The very small quantity 
generator must also comply with the applicable independent requirements 
for either a small quantity generator or a large quantity generator.
    (iii) If a very small quantity generator's wastes are mixed with 
used oil, the mixture is subject to 40 CFR part 279. Any material 
produced from such a mixture by processing, blending, or other 
treatment is also regulated under 40 CFR part 279.
    (2) Small quantity generator and large quantity generator wastes. 
(i) Hazardous wastes generated by a small quantity generator or large 
quantity generator may be mixed with solid waste. These mixtures are 
subject to the following: the mixture rule in Sec. Sec.  
261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); the prohibition of 
dilution rule at Sec.  268.3(a); the land disposal restriction 
requirements of Sec.  268.40 if a characteristic hazardous waste is 
mixed with a solid waste so that it no longer exhibits the hazardous 
characteristic; and the hazardous waste determination requirement at 
Sec.  262.11.
    (ii) If the resulting mixture is found to be a hazardous waste, 
this resultant mixture is a newly-generated hazardous waste. A small 
quantity generator must count both the resultant mixture amount plus 
the other hazardous waste generated in the calendar month to determine 
whether the total quantity exceeds the small quantity generator 
calendar monthly quantity limits identified in the definition of 
generator categories found in Sec.  260.10 of this chapter. If so, to 
remain exempt from the permitting, interim status, and operating 
standards, the small quantity generator must meet the conditions for 
exemption applicable to a large quantity generator. The small quantity 
generator must also comply with the applicable independent requirements 
for a large quantity generator.


Sec.  262.14  Conditions for exemption for a very small quantity 
generator.

    (a) Provided that the very small quantity generator meets all the 
conditions for exemption listed in this section, hazardous waste 
generated by the very small quantity generator is not subject to the 
requirements of parts 124, 262 (except Sec. Sec.  262.10-262.14) 
through 268, and 270 of this chapter, and the notification requirements 
of section 3010 of RCRA and the very small quantity generator may 
accumulate hazardous waste on site without

[[Page 85810]]

complying with such requirements. The conditions for exemption are as 
follows:
    (1) In a calendar month the very small quantity generator generates 
less than or equal to the amounts specified in the definition of ``very 
small quantity generator'' in Sec.  260.10 of this chapter;
    (2) The very small quantity generator complies with Sec.  262.11(a) 
through (d);
    (3) If the very small quantity generator accumulates at any time 
greater than 1 kilogram (2.2 lbs) of acute hazardous waste or 100 
kilograms (220 lbs) 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 listed in Sec. Sec.  261.31 or 
261.33(e) of this chapter, all quantities of that acute hazardous waste 
are subject to the following additional conditions for exemption:
    (i) Such waste is held on site for no more than 90 days beginning 
on the date when the accumulated wastes exceed the amounts provided 
above; and
    (ii) The conditions for exemption in Sec.  262.17(a) through (g).
    (4) If the very small quantity generator accumulates at any time 
1,000 kilograms (2,200 lbs) or greater of non-acute hazardous waste, 
all quantities of that hazardous waste are subject to the following 
additional conditions for exemption:
    (i) Such waste is held on site for no more than 180 days, or 270 
days, if applicable, beginning on the date when the accumulated waste 
exceed the amounts provided above;
    (ii) The quantity of waste accumulated on site never exceeds 6,000 
kilograms (13,200 lbs); and
    (iii) The conditions for exemption in Sec.  262.16(b)(2) through 
(f).
    (5) A very small quantity generator that accumulates hazardous 
waste in amounts less than or equal to the limits in paragraphs (a)(3) 
and (4) of this section must either treat or dispose of its hazardous 
waste in an on-site facility or ensure delivery to an off-site 
treatment, storage, or disposal facility, either of which, if located 
in the U.S., is:
    (i) Permitted under part 270 of this chapter;
    (ii) In interim status under parts 265 and 270 of this chapter;
    (iii) Authorized to manage hazardous waste by a state with a 
hazardous waste management program approved under part 271 of this 
chapter;
    (iv) Permitted, licensed, or registered by a state to manage 
municipal solid waste and, if managed in a municipal solid waste 
landfill is subject to part 258 of this chapter;
    (v) Permitted, licensed, or registered by a state to manage non-
municipal non-hazardous waste and, if managed in a non-municipal non-
hazardous waste disposal unit, is subject to the requirements in 
Sec. Sec.  257.5 through 257.30 of this chapter;
    (vi) A facility which:
    (A) Beneficially uses or reuses, or legitimately recycles or 
reclaims its waste; or
    (B) Treats its waste prior to beneficial use or reuse, or 
legitimate recycling or reclamation;
    (vii) For universal waste managed under part 273 of this chapter, a 
universal waste handler or destination facility subject to the 
requirements of part 273 of this chapter;
    (viii) A large quantity generator under the control of the same 
person as the very small quantity generator, provided the following 
conditions are met:
    (A) The very small quantity generator and the large quantity 
generator are under the control of the same person as defined in Sec.  
260.10 of this chapter. ``Control,'' for the purposes of this section, 
means the power to direct the policies of the generator, whether by the 
ownership of stock, voting rights, or otherwise, except that 
contractors who operate generator facilities on behalf of a different 
person as defined in Sec.  260.10 of this chapter shall not be deemed 
to ``control'' such generators.
    (B) The very small quantity generator marks its container(s) of 
hazardous waste with:
    (1) The words ``Hazardous Waste'' and
    (2) An indication of the hazards of the contents (examples include, 
but are not limited to, the applicable hazardous waste 
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard 
communication consistent with the Department of Transportation 
requirements at 49 CFR part 172 subpart E (labeling) or subpart F 
(placarding); a hazard statement or pictogram consistent with the 
Occupational Safety and Health Administration Hazard Communication 
Standard at 29 CFR 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704).
    (b) The placement of bulk or non-containerized liquid hazardous 
waste or hazardous waste containing free liquids (whether or not 
sorbents have been added) in any landfill is prohibited.
    (c) A very small quantity generator experiencing an episodic event 
may generate and accumulate hazardous waste in accordance with subpart 
L of this part in lieu of Sec. Sec.  262.15, 262.16, and 262.17.


Sec.  262.15  Satellite accumulation area regulations for small and 
large quantity generators.

    (a) A generator may accumulate as much as 55 gallons of non-acute 
hazardous waste and/or either one quart of liquid acute hazardous waste 
listed in Sec.  261.31 or Sec.  261.33(e) of this chapter or 1 kg (2.2 
lbs) of solid acute hazardous waste listed in Sec.  261.31 or Sec.  
261.33(e) of this chapter in containers at or near any point of 
generation where wastes initially accumulate which is under the control 
of the operator of the process generating the waste, without a permit 
or interim status and without complying with the requirements of parts 
124, 264 through 267, and 270 of this chapter, provided that all of the 
conditions for exemption in this section are met. A generator may 
comply with the conditions for exemption in this section instead of 
complying with the conditions for exemption in Sec.  262.16(b) or Sec.  
262.17(a), except as required in Sec.  262.15(a)(7) and (8). The 
conditions for exemption for satellite accumulation are:
    (1) If a container holding hazardous waste is not in good 
condition, or if it begins to leak, the generator must immediately 
transfer the hazardous waste from this container to a container that is 
in good condition and does not leak, or immediately transfer and manage 
the waste in a central accumulation area operated in compliance with 
Sec.  262.16(b) or Sec.  262.17(a).
    (2) The generator must use a container made of or lined with 
materials that will not react with, and are otherwise compatible with, 
the hazardous waste to be accumulated, so that the ability of the 
container to contain the waste is not impaired.
    (3) Special standards for incompatible wastes.
    (i) Incompatible wastes, or incompatible wastes and materials, (see 
appendix V of part 265 for examples) must not be placed in the same 
container, unless Sec.  265.17(b) of this chapter is complied with.
    (ii) Hazardous waste must not be placed in an unwashed container 
that previously held an incompatible waste or material (see appendix V 
of part 265 for examples), unless Sec.  265.17(b) of this chapter is 
complied with.
    (iii) A container holding a hazardous waste that is incompatible 
with any waste or other materials accumulated nearby in other 
containers must be separated from the other materials or protected from 
them by any practical means.

[[Page 85811]]

    (4) A container holding hazardous waste must be closed at all times 
during accumulation, except:
    (i) When adding, removing, or consolidating waste; or
    (ii) When temporary venting of a container is necessary
    (A) For the proper operation of equipment, or
    (B) To prevent dangerous situations, such as build-up of extreme 
pressure.
    (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 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704).
    (6) A generator who accumulates either acute hazardous waste listed 
in Sec.  261.31 or Sec.  261.33(e) of this chapter or non-acute 
hazardous waste in excess of the amounts listed in paragraph (a) of 
this section at or near any point of generation must do the following:
    (i) Comply within three consecutive calendar days with the 
applicable central accumulation area regulations in Sec.  262.16(b) or 
Sec.  262.17(a), or
    (ii) Remove the excess from the satellite accumulation area within 
three consecutive calendar days to either:
    (A) A central accumulation area operated in accordance with the 
applicable regulations in Sec.  262.16(b) or Sec.  262.17(a);
    (B) An on-site interim status or permitted treatment, storage, or 
disposal facility, or
    (C) An off-site designated facility; and
    (iii) During the three-consecutive-calendar-day period the 
generator must continue to comply with paragraphs (a)(1) through (5) of 
this section. The generator must mark or label the container(s) holding 
the excess accumulation of hazardous waste with the date the excess 
amount began accumulating.
    (7) All satellite accumulation areas operated by a small quantity 
generator must meet the preparedness and prevention regulations of 
Sec.  262.16(b)(8) and emergency procedures at Sec.  262.16(b)(9).
    (8) All satellite accumulation areas operated by a large quantity 
generator must meet the Preparedness, Prevention and Emergency 
Procedures in subpart M of this part.
    (b) [Reserved]


Sec.  262.16  Conditions for exemption for a small quantity generator 
that accumulates hazardous waste.

    A small quantity generator may accumulate hazardous waste on site 
without a permit or interim status, and without complying with the 
requirements of parts 124, 264 through 267, and 270 of this chapter, or 
the notification requirements of section 3010 of RCRA, provided that 
all the conditions for exemption listed in this section are met:
    (a) Generation. The generator generates in a calendar month no more 
than the amounts specified in the definition of ``small quantity 
generator'' in Sec.  260.10 of this chapter.
    (b) Accumulation. The generator accumulates hazardous waste on site 
for no more than 180 days, unless in compliance with the conditions for 
exemption for longer accumulation in paragraphs (d) and (e) of this 
section. The following accumulation conditions also apply:
    (1) Accumulation limit. The quantity of hazardous waste accumulated 
on site never exceeds 6,000 kilograms (13,200 pounds);
    (2) Accumulation of hazardous waste in containers--(i) Condition of 
containers. If a container holding hazardous waste is not in good 
condition, or if it begins to leak, the small quantity generator must 
immediately transfer the hazardous waste from this container to a 
container that is in good condition, or immediately manage the waste in 
some other way that complies with the conditions for exemption of this 
section.
    (ii) Compatibility of waste with container. The small quantity 
generator must use a container made of or lined with materials that 
will not react with, and are otherwise compatible with, the hazardous 
waste to be accumulated, so that the ability of the container to 
contain the waste is not impaired.
    (iii) Management of containers. (A) A container holding hazardous 
waste must always be closed during accumulation, except when it is 
necessary to add or remove waste.
    (B) A container holding hazardous waste must not be opened, 
handled, or accumulated in a manner that may rupture the container or 
cause it to leak.
    (iv) Inspections. At least weekly, the small quantity generator 
must inspect central accumulation areas. The small quantity generator 
must look for leaking containers and for deterioration of containers 
caused by corrosion or other factors. See paragraph (b)(2)(i) of this 
section for remedial action required if deterioration or leaks are 
detected.
    (v) Special conditions for accumulation of incompatible wastes. (A) 
Incompatible wastes, or incompatible wastes and materials, (see 
appendix V of part 265 for examples) must not be placed in the same 
container, unless Sec.  265.17(b) of this chapter is complied with.
    (B) Hazardous waste must not be placed in an unwashed container 
that previously held an incompatible waste or material (see appendix V 
of part 265 for examples), unless Sec.  265.17(b) of this chapter is 
complied with.
    (C) A container accumulating hazardous waste that is incompatible 
with any waste or other materials accumulated or stored nearby in other 
containers, piles, open tanks, or surface impoundments must be 
separated from the other materials or protected from them by means of a 
dike, berm, wall, or other device.
    (3) Accumulation of hazardous waste in tanks.
    (i) [Reserved]
    (ii) A small quantity generator of hazardous waste must comply with 
the following general operating conditions:
    (A) Treatment or accumulation of hazardous waste in tanks must 
comply with Sec.  265.17(b) of this chapter.
    (B) Hazardous wastes or treatment reagents must not be placed in a 
tank if they could cause the tank or its inner liner to rupture, leak, 
corrode, or otherwise fail before the end of its intended life.
    (C) Uncovered tanks must be operated to ensure at least 60 
centimeters (2 feet) of freeboard, unless the tank is equipped with a 
containment structure (e.g., dike or trench), a drainage control 
system, or a diversion structure (e.g., standby tank) with a capacity 
that equals or exceeds the volume of the top 60 centimeters (2 feet) of 
the tank.
    (D) Where hazardous waste is continuously fed into a tank, the tank 
must be equipped with a means to stop this inflow (e.g., waste feed 
cutoff system or by-pass system to a stand-by tank).
    (iii) Except as noted in paragraph (b)(3)(iv) of this section, a 
small quantity generator that accumulates hazardous waste in tanks must 
inspect, where present:
    (A) Discharge control equipment (e.g., waste feed cutoff systems, 
by-pass systems, and drainage systems) at least once each operating 
day, to ensure that it is in good working order;
    (B) Data gathered from monitoring equipment (e.g., pressure and

[[Page 85812]]

temperature gauges) at least once each operating day to ensure that the 
tank is being operated according to its design;
    (C) The level of waste in the tank at least once each operating day 
to ensure compliance with paragraph (b)(3)(ii)(C) of this section;
    (D) The construction materials of the tank at least weekly to 
detect corrosion or leaking of fixtures or seams; and
    (E) The construction materials of, and the area immediately 
surrounding, discharge confinement structures (e.g., dikes) at least 
weekly to detect erosion or obvious signs of leakage (e.g., wet spots 
or dead vegetation). The generator must remedy any deterioration or 
malfunction of equipment or structures which the inspection reveals on 
a schedule which ensures that the problem does not lead to an 
environmental or human health hazard. Where a hazard is imminent or has 
already occurred, remedial action must be taken immediately.
    (iv) A small quantity generator accumulating hazardous waste in 
tanks or tank systems that have full secondary containment and that 
either use leak detection equipment to alert personnel to leaks, or 
implement established workplace practices to ensure leaks are promptly 
identified, must inspect at least weekly, where applicable, the areas 
identified in paragraphs (b)(3)(iii)(A) through (E) of this section. 
Use of the alternate inspection schedule must be documented in the 
generator's operating record. This documentation must include a 
description of the established workplace practices at the generator.
    (v) [Reserved]
    (vi) A small quantity generator accumulating hazardous waste in 
tanks must, upon closure of the facility, remove all hazardous waste 
from tanks, discharge control equipment, and discharge confinement 
structures. At closure, as throughout the operating period, unless the 
small quantity generator can demonstrate, in accordance with Sec.  
261.3(c) or (d) of this chapter, that any solid waste removed from its 
tank is not a hazardous waste, then it must manage such waste in 
accordance with all applicable provisions of parts 262, 263, 265 and 
268 of this chapter.
    (vii) A small quantity generator must comply with the following 
special conditions for accumulation of ignitable or reactive waste:
    (A) Ignitable or reactive waste must not be placed in a tank, 
unless:
    (1) The waste is treated, rendered, or mixed before or immediately 
after placement in a tank so that the resulting waste, mixture, or 
dissolution of material no longer meets the definition of ignitable or 
reactive waste under Sec.  261.21 or Sec.  261.23 of this chapter and 
Sec.  265.17(b) of this chapter is complied with; or
    (2) The waste is accumulated or treated in such a way that it is 
protected from any material or conditions that may cause the waste to 
ignite or react; or
    (3) The tank is used solely for emergencies.
    (B) A small quantity generator which treats or accumulates 
ignitable or reactive waste in covered tanks must comply with the 
buffer zone requirements for tanks contained in Tables 2-1 through 2-6 
of the National Fire Protection Association's ``Flammable and 
Combustible Liquids Code'' (1977 or 1981) (incorporated by reference, 
see Sec.  260.11).
    (C) A small quantity generator must comply with the following 
special conditions for incompatible wastes:
    (1) Incompatible wastes, or incompatible wastes and materials, (see 
part 265 appendix V for examples) must not be placed in the same tank, 
unless Sec.  265.17(b) of this chapter is complied with.
    (2) Hazardous waste must not be placed in an unwashed tank that 
previously held an incompatible waste or material, unless Sec.  
265.17(b) of this chapter is complied with.
    (4) Accumulation of hazardous waste on drip pads. If the waste is 
placed on drip pads, the small quantity generator must comply with the 
following:
    (i) Subpart W of 40 CFR part 265 (except Sec.  265.445 (c));
    (ii) The small quantity generator must remove all wastes from the 
drip pad at least once every 90 days. Any hazardous wastes that are 
removed from the drip pad at least once every 90 days are then subject 
to the 180-day accumulation limit in paragraph (b) of this section and 
Sec.  262.15 if hazardous wastes are being managed in satellite 
accumulation areas prior to being moved to the central accumulation 
area; and
    (iii) The small quantity generator 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.
    (5) Accumulation of hazardous waste in containment buildings. If 
the waste is placed in containment buildings, the small quantity 
generator must comply with of 40 CFR part 265 subpart DD. 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 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704).The generator 
must also maintain:
    (i) The professional engineer certification that the building 
complies with the design standards specified in 40 CFR 265.1101. This 
certification must be in the generator's files prior to operation of 
the unit; and
    (ii) The following records by use of inventory logs, monitoring 
equipment, or any other effective means:
    (A) A written description of procedures to ensure that each waste 
volume remains in the unit for no more than 90 days, a written 
description of the waste generation and management practices for the 
facility showing that the generator is consistent with maintaining the 
90 day limit, and documentation that the procedures are complied with; 
or
    (B) Documentation that the unit is emptied at least once every 90 
days.
    (C) Inventory logs or records with the above information must be 
maintained on site and readily available for inspection.
    (6) Labeling and marking of containers and tanks--. (i) Containers. 
A small quantity generator must mark or label its containers with the 
following:
    (A) The words ``Hazardous Waste'';
    (B) 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

[[Page 85813]]

Communication Standard at 29 CFR 1910.1200; or a chemical hazard label 
consistent with the National Fire Protection Association code 704); and
    (C) The date upon which each period of accumulation begins clearly 
visible for inspection on each container.
    (ii) Tanks. A small quantity generator accumulating hazardous waste 
in tanks must do the following:
    (A) Mark or label its tanks with the words ``Hazardous Waste'';
    (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 1910.1200; or a chemical hazard label 
consistent with the National Fire Protection Association code 704);
    (C) 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
    (D) Keep inventory logs or records with the above information on 
site and readily available for inspection.
    (7) Land disposal restrictions. A small quantity generator must 
comply with all the applicable requirements under 40 CFR part 268.
    (8) Preparedness and prevention--(i) Maintenance and operation of 
facility. A small quantity generator must maintain and operate its 
facility to minimize the possibility of a fire, explosion, or any 
unplanned sudden or non-sudden release of hazardous waste or hazardous 
waste constituents to air, soil, or surface water which could threaten 
human health or the environment.
    (ii) Required equipment. All areas where hazardous waste is either 
generated or accumulated must be equipped with the items in paragraphs 
(b)(8)(ii)(A) through (D) of this section (unless none of the hazards 
posed by waste handled at the facility could require a particular kind 
of equipment specified below or the actual waste generation or 
accumulation area does not lend itself for safety reasons to have a 
particular kind of equipment specified below). A small quantity 
generator may determine the most appropriate locations to locate 
equipment necessary to prepare for and respond to emergencies.
    (A) An internal communications or alarm system capable of providing 
immediate emergency instruction (voice or signal) to facility 
personnel;
    (B) A device, such as a telephone (immediately available at the 
scene of operations) or a hand-held two-way radio, capable of summoning 
emergency assistance from local police departments, fire departments, 
or State or local emergency response teams;
    (C) Portable fire extinguishers, fire control equipment (including 
special extinguishing equipment, such as that using foam, inert gas, or 
dry chemicals), spill control equipment, and decontamination equipment; 
and
    (D) Water at adequate volume and pressure to supply water hose 
streams, or foam producing equipment, or automatic sprinklers, or water 
spray systems.
    (iii) Testing and maintenance of equipment. All communications or 
alarm systems, fire protection equipment, spill control equipment, and 
decontamination equipment, where required, must be tested and 
maintained as necessary to assure its proper operation in time of 
emergency.
    (iv) Access to communications or alarm system. (A) Whenever 
hazardous waste is being poured, mixed, spread, or otherwise handled, 
all personnel involved in the operation must have immediate access 
(e.g., direct or unimpeded access) to an internal alarm or emergency 
communication device, either directly or through visual or voice 
contact with another employee, unless such a device is not required 
under paragraph (a)(8)(ii) of this section.
    (B) In the event there is just one employee on the premises while 
the facility is operating, the employee must have immediate access 
(e.g., direct or unimpeded access) to a device, such as a telephone 
(immediately available at the scene of operation) or a hand-held two-
way radio, capable of summoning external emergency assistance, unless 
such a device is not required under paragraph (a)(8)(ii) of this 
section.
    (v) Required aisle space. The small quantity generator must 
maintain aisle space to allow the unobstructed movement of personnel, 
fire protection equipment, spill control equipment, and decontamination 
equipment to any area of facility operation in an emergency, unless 
aisle space is not needed for any of these purposes.
    (vi) Arrangements with local authorities. (A) The small quantity 
generator must attempt to make arrangements with the local police 
department, fire department, other emergency response teams, emergency 
response contractors, equipment suppliers and local hospitals, taking 
into account the types and quantities of hazardous wastes handled at 
the facility. Arrangements may be made with the Local Emergency 
Planning Committee, if it is determined to be the appropriate 
organization with which to make arrangements.
    (1) A small quantity generator attempting to make arrangements with 
its local fire department must determine the potential need for the 
services of the local police department, other emergency response 
teams, emergency response contractors, equipment suppliers and local 
hospitals.
    (2) As part of this coordination, the small quantity generator 
shall attempt to make arrangements, as necessary, to familiarize the 
above organizations with the layout of the facility, the properties of 
hazardous waste handled at the facility and associated hazards, places 
where facility personnel would normally be working, entrances to roads 
inside the facility, and possible evacuation routes as well as the 
types of injuries or illnesses that could result from fires, 
explosions, or releases at the facility.
    (3) Where more than one police or fire department might respond to 
an emergency, the small quantity generator shall attempt to make 
arrangements designating primary emergency authority to a specific fire 
or police department, and arrangements with any others to provide 
support to the primary emergency authority.
    (B) A small quantity generator shall maintain records documenting 
the arrangements with the local fire department as well as any other 
organization necessary to respond to an emergency. This documentation 
must include documentation in the operating record that either confirms 
such arrangements actively exist or, in cases where no arrangements 
exist, confirms that attempts to make such arrangements were made.
    (C) A facility possessing 24-hour response capabilities may seek a 
waiver from the authority having jurisdiction (AHJ) over the fire code 
within the facility's state or locality as far as needing to make 
arrangements with the local fire department as well as any other 
organization necessary to respond to an emergency, provided that the 
waiver is documented in the operating record.

[[Page 85814]]

    (9) Emergency procedures. The small quantity generator complies 
with the following conditions for those areas of the generator facility 
where hazardous waste is generated and accumulated:
    (i) At all times there must be at least one employee either on the 
premises or on call (i.e., available to respond to an emergency by 
reaching the facility within a short period of time) with the 
responsibility for coordinating all emergency response measures 
specified in paragraph (b)(9)(iv) of this section. This employee is the 
emergency coordinator.
    (ii) The small quantity generator must post the following 
information next to telephones or in areas directly involved in the 
generation and accumulation of hazardous waste:
    (A) The name and emergency telephone number of the emergency 
coordinator;
    (B) Location of fire extinguishers and spill control material, and, 
if present, fire alarm; and
    (C) The telephone number of the fire department, unless the 
facility has a direct alarm.
    (iii) The small quantity generator must ensure that all employees 
are thoroughly familiar with proper waste handling and emergency 
procedures, relevant to their responsibilities during normal facility 
operations and emergencies;
    (iv) The emergency coordinator or his designee must respond to any 
emergencies that arise. The applicable responses are as follows:
    (A) In the event of a fire, call the fire department or attempt to 
extinguish it using a fire extinguisher;
    (B) In the event of a spill, the small quantity generator is 
responsible for containing the flow of hazardous waste to the extent 
possible, and as soon as is practicable, cleaning up the hazardous 
waste and any contaminated materials or soil. Such containment and 
cleanup can be conducted either by the small quantity generator or by a 
contractor on behalf of the small quantity generator;
    (C) In the event of a fire, explosion, or other release that could 
threaten human health outside the facility or when the small quantity 
generator has knowledge that a spill has reached surface water, the 
small quantity generator must immediately notify the National Response 
Center (using their 24-hour toll free number 800/424-8802). The report 
must include the following information:
    (1) The name, address, and U.S. EPA identification number of the 
small quantity generator;
    (2) Date, time, and type of incident (e.g., spill or fire);
    (3) Quantity and type of hazardous waste involved in the incident;
    (4) Extent of injuries, if any; and
    (5) Estimated quantity and disposition of recovered materials, if 
any.
    (c) Transporting over 200 miles. A small quantity generator who 
must transport its waste, or offer its waste for transportation, over a 
distance of 200 miles or more for off-site treatment, storage or 
disposal may accumulate hazardous waste on site for 270 days or less 
without a permit or without having interim status provided that the 
generator complies with the conditions of paragraph (b) of this 
section.
    (d) Accumulation time limit extension. A small quantity generator 
who accumulates hazardous waste for more than 180 days (or for more 
than 270 days if it must transport its waste, or offer its waste for 
transportation, over a distance of 200 miles or more) is subject to the 
requirements of 40 CFR parts 264, 265, 267, 268, and 270 of this 
chapter unless it has been granted an extension to the 180-day (or 270-
day if applicable) period. Such extension may be granted by EPA if 
hazardous wastes must remain on site for longer than 180 days (or 270 
days if applicable) due to unforeseen, temporary, and uncontrollable 
circumstances. An extension of up to 30 days may be granted at the 
discretion of the Regional Administrator on a case-by-case basis.
    (e) Rejected load. A small quantity generator who sends a shipment 
of hazardous waste to a designated facility with the understanding that 
the designated facility can accept and manage the waste and later 
receives that shipment back as a rejected load or residue in accordance 
with the manifest discrepancy provisions of Sec.  264.72 or Sec.  
265.72 of this chapter may accumulate the returned waste on site in 
accordance with paragraphs (a)-(d) of this section. Upon receipt of the 
returned shipment, the generator must:
    (1) Sign Item 18c of the manifest, if the transporter returned the 
shipment using the original manifest; or
    (2) Sign Item 20 of the manifest, if the transporter returned the 
shipment using a new manifest.
    (f) A small quantity generator experiencing an episodic event may 
accumulate hazardous waste in accordance with subpart L of this part in 
lieu of Sec.  262.17.


Sec.  262.17  Conditions for exemption for a large quantity generator 
that accumulates hazardous waste.

    A large quantity generator may accumulate hazardous waste on site 
without a permit or interim status, and without complying with the 
requirements of parts 124, 264 through 267, and 270 of this chapter, or 
the notification requirements of section 3010 of RCRA, provided that 
all of the following conditions for exemption are met:
    (a) Accumulation. A large quantity generator accumulates hazardous 
waste on site for no more than 90 days, unless in compliance with the 
accumulation time limit extension or F006 accumulation conditions for 
exemption in paragraphs (b) through (e) of this section. The following 
accumulation conditions also apply:
    (1) Accumulation of hazardous waste in containers. If the hazardous 
waste is placed in containers, the large quantity generator must comply 
with the following:
    (i) Air emission standards. The applicable requirements of subparts 
AA, BB, and CC of 40 CFR part 265;
    (ii) Condition of containers. If a container holding hazardous 
waste is not in good condition, or if it begins to leak, the large 
quantity generator must immediately transfer the hazardous waste from 
this container to a container that is in good condition, or immediately 
manage the waste in some other way that complies with the conditions 
for exemption of this section;
    (iii) Compatibility of waste with container. The large quantity 
generator must use a container made of or lined with materials that 
will not react with, and are otherwise compatible with, the hazardous 
waste to be stored, so that the ability of the container to contain the 
waste is not impaired;
    (iv) Management of containers. (A) A container holding hazardous 
waste must always be closed during accumulation, except when it is 
necessary to add or remove waste.
    (B) A container holding hazardous waste must not be opened, 
handled, or stored in a manner that may rupture the container or cause 
it to leak.
    (v) Inspections. At least weekly, the large quantity generator must 
inspect central accumulation areas. The large quantity generator must 
look for leaking containers and for deterioration of containers caused 
by corrosion or other factors. See paragraph (a)(1)(ii) of this section 
for remedial action required if deterioration or leaks are detected.
    (vi) Special conditions for accumulation of ignitable and reactive 
wastes. (A) Containers holding ignitable or reactive waste must be 
located at least 15 meters (50 feet) from the facility's property line 
unless a written approval is obtained from the authority having 
jurisdiction over the local fire code allowing hazardous waste 
accumulation to occur within this

[[Page 85815]]

restricted area. A record of the written approval must be maintained as 
long as ignitable or reactive hazardous waste is accumulated in this 
area.
    (B) The large quantity generator must take precautions to prevent 
accidental ignition or reaction of ignitable or reactive waste. This 
waste must be separated and protected from sources of ignition or 
reaction including but not limited to the following: Open flames, 
smoking, cutting and welding, hot surfaces, frictional heat, sparks 
(static, electrical, or mechanical), spontaneous ignition (e.g., from 
heat-producing chemical reactions), and radiant heat. While ignitable 
or reactive waste is being handled, the large quantity generator must 
confine smoking and open flame to specially designated locations. ``No 
Smoking'' signs must be conspicuously placed wherever there is a hazard 
from ignitable or reactive waste.
    (vii) Special conditions for accumulation of incompatible wastes. 
(A) Incompatible wastes, or incompatible wastes and materials, (see 
appendix V of part 265 for examples) must not be placed in the same 
container, unless Sec.  265.17(b) of this chapter is complied with.
    (B) Hazardous waste must not be placed in an unwashed container 
that previously held an incompatible waste or material (see appendix V 
of part 265 for examples), unless Sec.  265.17(b) of this chapter is 
complied with.
    (C) A container holding a hazardous waste that is incompatible with 
any waste or other materials accumulated or stored nearby in other 
containers, piles, open tanks, or surface impoundments must be 
separated from the other materials or protected from them by means of a 
dike, berm, wall, or other device.
    (2) Accumulation of hazardous waste in tanks. If the waste is 
placed in tanks, the large quantity generator must comply with the 
applicable requirements of subparts J, except Sec.  265.197(c) of 
Closure and post-closure care and Sec.  265.200--Waste analysis and 
trial tests, as well as the applicable requirements of AA, BB, and CC 
of 40 CFR part 265.
    (3) Accumulation of hazardous waste on drip pads. If the hazardous 
waste is placed on drip pads, the large quantity generator must comply 
with the following:
    (i) Subpart W of 40 CFR part 265;
    (ii) The large quantity generator must remove all wastes from the 
drip pad at least once every 90 days. Any hazardous wastes that are 
removed from the drip pad are then subject to the 90-day accumulation 
limit in paragraph (a) of this section and Sec.  262.15, if the 
hazardous wastes are being managed in satellite accumulation areas 
prior to being moved to a central accumulation area; and
    (iii) The large quantity generator 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.
    (4) Accumulation of hazardous waste in containment buildings. If 
the waste is placed in containment buildings, the large quantity 
generator must comply with of 40 CFR part 265 subpart DD. The generator 
must label its containment building 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 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704). The generator 
must also maintain:
    (i) The professional engineer certification that the building 
complies with the design standards specified in 40 CFR 265.1101. This 
certification must be in the generator's files prior to operation of 
the unit; and
    (ii) The following records by use of inventory logs, monitoring 
equipment, or any other effective means:
    (A) A written description of procedures to ensure that each waste 
volume remains in the unit for no more than 90 days, a written 
description of the waste generation and management practices for the 
facility showing that the generator is consistent with respecting the 
90 day limit, and documentation that the procedures are complied with; 
or
    (B) Documentation that the unit is emptied at least once every 90 
days.
    (C) Inventory logs or records with the above information must be 
maintained on site and readily available for inspection.
    (5) Labeling and marking of containers and tanks--(i) Containers. A 
large quantity generator must mark or label its containers with the 
following:
    (A) The words ``Hazardous Waste'';
    (B) An indication of the hazards of the contents (examples include, 
but are not limited to, the applicable hazardous waste 
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard 
communication consistent with the Department of Transportation 
requirements at 49 CFR part 172 subpart E (labeling) or subpart F 
(placarding); a hazard statement or pictogram consistent with the 
Occupational Safety and Health Administration Hazard Communication 
Standard at 29 CFR 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704); and
    (C) The date upon which each period of accumulation begins clearly 
visible for inspection on each container.
    (ii) Tanks. A large quantity generator accumulating hazardous waste 
in tanks must do the following:
    (A) Mark or label its tanks with the words ``Hazardous Waste'';
    (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 1910.1200; or a chemical hazard label 
consistent with the National Fire Protection Association code 704);
    (C) Use inventory logs, monitoring equipment or other records to 
demonstrate that hazardous waste has been emptied within 90 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 90 days 
of first entering; and
    (D) Keep inventory logs or records with the above information on 
site and readily available for inspection.
    (6) Emergency procedures. The large quantity generator complies 
with the standards in subpart M of this part, Preparedness, Prevention 
and

[[Page 85816]]

Emergency Procedures for Large Quantity Generators.
    (7) Personnel training. (i)(A) Facility personnel must successfully 
complete a program of classroom instruction, online training (e.g., 
computer-based or electronic), or on-the-job training that teaches them 
to perform their duties in a way that ensures compliance with this 
part. The large quantity generator must ensure that this program 
includes all the elements described in the document required under 
paragraph (a)(7)(iv) of this section.
    (B) This program must be directed by a person trained in hazardous 
waste management procedures, and must include instruction which teaches 
facility personnel hazardous waste management procedures (including 
contingency plan implementation) relevant to the positions in which 
they are employed.
    (C) At a minimum, the training program must be designed to ensure 
that facility personnel are able to respond effectively to emergencies 
by familiarizing them with emergency procedures, emergency equipment, 
and emergency systems, including where applicable:
    (1) Procedures for using, inspecting, repairing, and replacing 
facility emergency and monitoring equipment;
    (2) Key parameters for automatic waste feed cut-off systems;
    (3) Communications or alarm systems;
    (4) Response to fires or explosions;
    (5) Response to ground-water contamination incidents; and
    (6) Shutdown of operations.
    (D) For facility employees that receive emergency response training 
pursuant to Occupational Safety and Health Administration regulations 
29 CFR 1910.120(p)(8) and 1910.120(q), the large quantity generator is 
not required to provide separate emergency response training pursuant 
to this section, provided that the overall facility training meets all 
the conditions of exemption in this section.
    (ii) Facility personnel must successfully complete the program 
required in paragraph (a)(7)(i) of this section within six months after 
the date of their employment or assignment to the facility, or to a new 
position at the facility, whichever is later. Employees must not work 
in unsupervised positions until they have completed the training 
standards of paragraph (a)(7)(i) of this section.
    (iii) Facility personnel must take part in an annual review of the 
initial training required in paragraph (a)(7)(i) of this section.
    (iv) The large quantity generator must maintain the following 
documents and records at the facility:
    (A) The job title for each position at the facility related to 
hazardous waste management, and the name of the employee filling each 
job;
    (B) A written job description for each position listed under 
paragraph (a)(7)(iv)(A) of this section. This description may be 
consistent in its degree of specificity with descriptions for other 
similar positions in the same company location or bargaining unit, but 
must include the requisite skill, education, or other qualifications, 
and duties of facility personnel assigned to each position;
    (C) A written description of the type and amount of both 
introductory and continuing training that will be given to each person 
filling a position listed under paragraph (a)(7)(iv)(A) of this 
section;
    (D) Records that document that the training or job experience, 
required under paragraphs (a)(7)(i), (ii), and (iii) of this section, 
has been given to, and completed by, facility personnel.
    (v) Training records on current personnel must be kept until 
closure of the facility. Training records on former employees must be 
kept for at least three years from the date the employee last worked at 
the facility. Personnel training records may accompany personnel 
transferred within the same company.
    (8) Closure. A large quantity generator accumulating hazardous 
wastes in containers, tanks, drip pads, and containment buildings, 
prior to closing a unit at the facility, or prior to closing the 
facility, must meet the following conditions:
    (i) Notification for closure of a waste accumulation unit. A large 
quantity generator must perform one of the following when closing a 
waste accumulation unit:
    (A) Place a notice in the operating record within 30 days after 
closure identifying the location of the unit within the facility; or
    (B) Meet the closure performance standards of paragraph (a)(8)(iii) 
of this section for container, tank, and containment building waste 
accumulation units or paragraph (a)(8)(iv) of this section for drip 
pads and notify EPA following the procedures in paragraph (a)(8)(ii)(B) 
of this section for the waste accumulation unit. If the waste 
accumulation unit is subsequently reopened, the generator may remove 
the notice from the operating record.
    (ii) Notification for closure of the facility. (A) Notify EPA using 
form 8700-12 no later than 30 days prior to closing the facility.
    (B) Notify EPA using form 8700-12 within 90 days after closing the 
facility that it has complied with the closure performance standards of 
paragraph (a)(8)(iii) or (iv) of this section. If the facility cannot 
meet the closure performance standards of paragraph (a)(8)(iii) or (iv) 
of this section, notify EPA using form 8700-12 that it will close as a 
landfill under Sec.  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 Sec.  265.445(b).
    (C) A large quantity generator may request additional time to clean 
close, but it must notify EPA using form 8700-12 within 75 days after 
the date provided in paragraph (a)(8)(ii)(A) of this section to request 
an extension and provide an explanation as to why the additional time 
is required.
    (iii) Closure performance standards for container, tank systems, 
and containment building waste accumulation units. (A) At closure, the 
generator must close the waste accumulation unit or facility in a 
manner that:
    (1) Minimizes the need for further maintenance by controlling, 
minimizing, or eliminating, to the extent necessary to protect human 
health and the environment, the post-closure escape of hazardous waste, 
hazardous constituents, leachate, contaminated run-off, or hazardous 
waste decomposition products to the ground or surface waters or to the 
atmosphere,
    (2) Removes or decontaminates all contaminated equipment, 
structures and soil and any remaining hazardous waste residues from 
waste accumulation units including containment system components (pads, 
liners, etc.), contaminated soils and subsoils, bases, and structures 
and equipment contaminated with waste, unless Sec.  261.3(d) of this 
chapter applies.
    (3) Any hazardous waste generated in the process of closing either 
the generator's facility or unit(s) accumulating hazardous waste must 
be managed in accordance with all applicable standards of parts 262, 
263, 265 and 268 of this chapter, including removing any hazardous 
waste contained in these units within 90 days of generating it and 
managing these wastes in a RCRA Subtitle C hazardous waste permitted 
treatment, storage and disposal facility or interim status facility.
    (4) If the generator demonstrates that any contaminated soils and 
wastes cannot be practicably removed or

[[Page 85817]]

decontaminated as required in paragraph (a)(8)(ii)(A)(2) of this 
section, then the waste accumulation unit is considered to be a 
landfill and the generator must close the waste accumulation unit and 
perform post-closure care in accordance with the closure and post-
closure care requirements that apply to landfills (Sec.  265.310 of 
this chapter). 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.
    (iv) Closure performance standards for drip pad waste accumulation 
units. At closure, the generator must comply with the closure 
requirements of paragraphs (a)(8)(ii) and (a)(8)(iii)(A)(1) and (3) of 
this section, and Sec.  265.445(a) and (b) of this chapter.
    (v) The closure requirements of paragraph (a)(8) of this section do 
not apply to satellite accumulation areas.
    (9) Land disposal restrictions. The large quantity generator 
complies with all applicable requirements under 40 CFR part 268.
    (b) Accumulation time limit extension. A large quantity generator 
who accumulates hazardous waste for more than 90 days is subject to the 
requirements of 40 CFR parts 124, 264 through 268, and part 270 of this 
chapter, and the notification requirements of section 3010 of RCRA, 
unless it has been granted an extension to the 90-day period. Such 
extension may be granted by EPA if hazardous wastes must remain on site 
for longer than 90 days due to unforeseen, temporary, and 
uncontrollable circumstances. An extension of up to 30 days may be 
granted at the discretion of the Regional Administrator on a case-by-
case basis.
    (c) Accumulation of F006. A large quantity generator who also 
generates wastewater treatment sludges from electroplating operations 
that meet the listing description for the EPA hazardous waste number 
F006, may accumulate F006 waste on site for more than 90 days, but not 
more than 180 days without being subject to parts 124, 264 through 267 
and 270 of this chapter, and the notification requirements of section 
3010 of RCRA, provided that it complies with all of the following 
additional conditions for exemption:
    (1) The large quantity generator has implemented pollution 
prevention practices that reduce the amount of any hazardous 
substances, pollutants, or contaminants entering F006 or otherwise 
released to the environment prior to its recycling;
    (2) The F006 waste is legitimately recycled through metals 
recovery;
    (3) No more than 20,000 kilograms of F006 waste is accumulated on 
site at any one time; and
    (4) The F006 waste is managed in accordance with the following:
    (i)(A) If the F006 waste is placed in containers, the large 
quantity generator must comply with the applicable conditions for 
exemption in paragraph (a)(1) of this section; and/or
    (B) If the F006 is placed in tanks, the large quantity generator 
must comply with the applicable conditions for exemption of paragraph 
(a)(2) of this section; and/or
    (C) If the F006 is placed in containment buildings, the large 
quantity generator must comply with subpart DD of 40 CFR part 265, and 
has placed its professional engineer certification that the building 
complies with the design standards specified in 40 CFR 265.1101 in the 
facility's files prior to operation of the unit. The large quantity 
generator must maintain the following records:
    (1) A written description of procedures to ensure that the F006 
waste remains in the unit for no more than 180 days, a written 
description of the waste generation and management practices for the 
facility showing that they are consistent with the 180-day limit, and 
documentation that the large quantity generator is complying with the 
procedures; or
    (2) Documentation that the unit is emptied at least once every 180 
days.
    (ii) The large quantity generator is exempt from all the 
requirements in subparts G and H of 40 CFR part 265, except for those 
referenced in paragraph (a)(8) of this section.
    (iii) The date upon which each period of accumulation begins is 
clearly marked and must be clearly visible for inspection on each 
container;
    (iv) While being accumulated on site, each container and tank is 
labeled or marked clearly with:
    (A) The words ``Hazardous Waste''; and
    (B) An indication of the hazards of the contents (examples include, 
but are not limited to, the applicable hazardous waste 
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard 
communication consistent with the Department of Transportation 
requirements at 49 CFR part 172 subpart E (labeling) or subpart F 
(placarding); a hazard statement or pictogram consistent with the 
Occupational Safety and Health Administration Hazard Communication 
Standard at 29 CFR 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704).
    (v) The large quantity generator complies with the requirements in 
paragraphs(a)(6) and (7) of this section.
    (d) F006 transported over 200 miles. A large quantity generator who 
also generates wastewater treatment sludges from electroplating 
operations that meet the listing description for the EPA hazardous 
waste number F006, and who must transport this waste, or offer this 
waste for transportation, over a distance of 200 miles or more for off-
site metals recovery, may accumulate F006 waste on site for more than 
90 days, but not more than 270 days without being subject to parts 124, 
264 through 267, 270, and the notification requirements of section 3010 
of RCRA, if the large quantity generator complies with all of the 
conditions for exemption of paragraphs (c)(1) through (4) of this 
section.
    (e) F006 accumulation time extension. A large quantity generator 
accumulating F006 in accordance with paragraphs (c) and (d) of this 
section who accumulates F006 waste on site for more than 180 days (or 
for more than 270 days if the generator must transport this waste, or 
offer this waste for transportation, over a distance of 200 miles or 
more), or who accumulates more than 20,000 kilograms of F006 waste on 
site is an operator of a storage facility and is subject to the 
requirements of 40 CFR parts 124, 264, 265, 267, and 270 of this 
chapter, and the notification requirements of section 3010 of RCRA, 
unless the generator has been granted an extension to the 180-day (or 
270-day if applicable) period or an exception to the 20,000 kilogram 
accumulation limit. Such extensions and exceptions may be granted by 
EPA if F006 waste must remain on site for longer than 180 days (or 270 
days if applicable) or if more than 20,000 kilograms of F006 waste must 
remain on site due to unforeseen, temporary, and uncontrollable 
circumstances. An extension of up to 30 days or an exception to the 
accumulation limit may be granted at the discretion of the Regional 
Administrator on a case-by-case basis.
    (f) Consolidation of hazardous waste received from very small 
quantity generators. Large quantity generators may accumulate on site 
hazardous waste received from very small quantity generators under 
control of the same person (as defined in Sec.  260.10 of this 
chapter), without a storage permit or interim status and without 
complying with the requirements of parts 124, 264 through 268, and 270 
of this chapter, and the notification requirements of

[[Page 85818]]

section 3010 of RCRA, provided that they comply with the following 
conditions. ``Control,'' for the purposes of this section, means the 
power to direct the policies of the generator, whether by the ownership 
of stock, voting rights, or otherwise, except that contractors who 
operate generator facilities on behalf of a different person shall not 
be deemed to ``control'' such generators.
    (1) The large quantity generator notifies EPA at least thirty (30) 
days prior to receiving the first shipment from a very small quantity 
generator(s) using EPA Form 8700-12; and
    (i) Identifies on the form the name(s) and site address(es) for the 
very small quantity generator(s) as well as the name and business 
telephone number for a contact person for the very small quantity 
generator(s); and
    (ii) Submits an updated Site ID form (EPA Form 8700-12) within 30 
days after a change in the name or site address for the very small 
quantity generator.
    (2) The large quantity generator maintains records of shipments for 
three years from the date the hazardous waste was received from the 
very small quantity generator. These records must identify the name, 
site address, and contact information for the very small quantity 
generator and include a description of the hazardous waste received, 
including the quantity and the date the waste was received.
    (3) The large quantity generator complies with the independent 
requirements identified in Sec.  262.10(a)(1)(iii) and the conditions 
for exemption in this section for all hazardous waste received from a 
very small quantity generator. For purposes of the labeling and marking 
regulations in paragraph (a)(5) of this section, the large quantity 
generator must label the container or unit with the date accumulation 
started (i.e., the date the hazardous waste was received from the very 
small quantity generator). If the large quantity generator is 
consolidating incoming hazardous waste from a very small quantity 
generator with either its own hazardous waste or with hazardous waste 
from other very small quantity generators, the large quantity generator 
must label each container or unit with the earliest date any hazardous 
waste in the container was accumulated on site.
    (g) Rejected load. A large quantity generator who sends a shipment 
of hazardous waste to a designated facility with the understanding that 
the designated facility can accept and manage the waste and later 
receives that shipment back as a rejected load or residue in accordance 
with the manifest discrepancy provisions of Sec.  264.72 or Sec.  
265.72 of this chapter may accumulate the returned waste on site in 
accordance with paragraphs (a) and (b) of this section. Upon receipt of 
the returned shipment, the generator must:
    (1) Sign Item 18c of the manifest, if the transporter returned the 
shipment using the original manifest; or
    (2) Sign Item 20 of the manifest, if the transporter returned the 
shipment using a new manifest.


Sec.  262.18  EPA identification numbers and re-notification for small 
quantity generators and large quantity generators.

    (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.
    (b) A generator who has not received an EPA identification number 
must obtain one by applying to the Administrator using EPA Form 8700-
12. Upon receiving the request the Administrator will assign an EPA 
identification number to the generator.
    (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.
    (d) Re-notification. (1) A small quantity generator must re-notify 
EPA starting in 2021 and every four years thereafter using EPA Form 
8700-12. This re-notification must be submitted by September 1st of 
each year in which re-notifications are required.
    (2) A large quantity generator must re-notify EPA by March 1 of 
each even-numbered year thereafter using EPA Form 8700-12. A large 
quantity generator may submit this re-notification as part of its 
Biennial Report required under Sec.  262.41.
    (e) A recognized trader must not arrange for import or export of 
hazardous waste without having received an EPA identification number 
from the Administrator.

0
28. Revise the heading for subpart B to read as follows:

Subpart B--Manifest Requirements Applicable to Small and Large 
Quantity Generators

0
29. Revise the heading for subpart C to read as follows:

Subpart C--Pre-Transport Requirements Applicable to Small and Large 
Quantity Generators

0
30. Section 262.32 is amended by revising paragraph (b) and adding 
paragraphs (c) and (d) to read as follows:


Sec.  262.32  Marking.

* * * * *
    (b) 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:
    (1) HAZARDOUS WASTE--Federal Law Prohibits Improper Disposal. If 
found, contact the nearest police or public safety authority or the 
U.S. Environmental Protection Agency.
    (2) Generator's Name and Address ____.
    (3) Generator's EPA Identification Number ____.
    (4) Manifest Tracking Number ____.
    (5) EPA Hazardous Waste Number(s) ____.
    (c) A generator may use a nationally recognized electronic system, 
such as bar coding, to identify the EPA Hazardous Waste Number(s), as 
required by paragraph (b)(5) or paragraph (d).
    (d) Lab packs that will be incinerated in compliance with Sec.  
268.42(c) are not required to be marked with EPA Hazardous Waste 
Number(s), except D004, D005, D006, D007, D008, D010, and D011, where 
applicable.


Sec.  262.34  [Removed and reserved]

0
31. Remove and reserve Sec.  262.34.

0
32. Add Sec.  262.35 to subpart C read as follows:


Sec.  262.35  Liquids in landfills prohibition.

    The placement of bulk or non-containerized liquid hazardous waste 
or hazardous waste containing free liquids (whether or not sorbents 
have been added) in any landfill is prohibited. Prior to disposal in a 
hazardous waste landfill, liquids must meet additional requirements as 
specified in Sec. Sec.  264.314 and 265.314.

0
33. Revise the heading for subpart D to read as follows:

Subpart D--Recordkeeping and Reporting Applicable to Small and 
Large Quantity Generators

0
34. Section 262.40 is amended by revising paragraph (c) to read as 
follows:


Sec.  262.40  Recordkeeping.

* * * * *
    (c) See Sec.  262.11(f) for recordkeeping requirements for 
documenting hazardous waste determinations.
* * * * *

0
35. Section 262.41 is revised to read as follows:

[[Page 85819]]

Sec.  262.41  Biennial report for large quantity generators.

    (a) A generator who is a large quantity generator for at least one 
month of an odd-numbered year (reporting year) who ships any hazardous 
waste off-site to a treatment, storage or disposal facility within the 
United States must complete and submit EPA Form 8700-13 A/B to the 
Regional Administrator by March 1 of the following even-numbered year 
and must cover generator activities during the previous year.
    (b) Any generator who is a large quantity generator for at least 
one month of an odd-numbered year (reporting year) who treats, stores, 
or disposes of hazardous waste on site must complete and submit EPA 
Form 8700-13 A/B to the Regional Administrator by March 1 of the 
following even-numbered year covering those wastes in accordance with 
the provisions of 40 CFR parts 264, 265, 266, 267 and 270. This 
requirement also applies to large quantity generators that receive 
hazardous waste from very small quantity generators pursuant to Sec.  
262.17(f).
    (c) Exports of hazardous waste to foreign countries are not 
required to be reported on the Biennial Report form. A separate annual 
report requirement is set forth at Sec.  262.83(g) for hazardous waste 
exporters.

0
36. Section 262.43 is revised to read as follows:


Sec.  262.43  Additional reporting.

    The Administrator, as deemed necessary under sections 2002(a) and 
3002(a)(6) of the Act, may require generators to furnish additional 
reports concerning the quantities and disposition of wastes identified 
or listed in 40 CFR part 261.

0
37. Section 262.44 is amended by revising the section heading and the 
introductory text to read as follows:


Sec.  262.44  Recordkeeping for small quantity generators.

    A small quantity generator is subject only to the following 
independent requirements in this subpart:
* * * * *

Subparts I and J [Removed and Reserved]

0
38. Remove and reserve subparts I and J.

Subpart K--Alternative Requirements for Hazardous Waste 
Determination and Accumulation of Unwanted Material for 
Laboratories Owned by Eligible Academic Entities

0
39. Section 262.200 is amended by removing the definition of ``Central 
accumulation area'' and revising the definition of ``Trained 
professional'' to read as follows:


Sec.  262.200  Definitions for this subpart.

* * * * *
    Trained professional means a person who has completed the 
applicable RCRA training requirements of Sec.  262.17 for large 
quantity generators, or is knowledgeable about normal operations and 
emergencies in accordance with Sec.  262.16 for small quantity 
generators and very small quantity generators. A trained professional 
may be an employee of the eligible academic entity or may be a 
contractor or vendor who meets the requisite training requirements.
* * * * *

0
40. Section 262.201 is revised to read as follows:


Sec.  262.201  Applicability of this subpart.

    (a) Large quantity generators and small quantity generators. This 
subpart provides alternative requirements to the requirements in 
Sec. Sec.  262.11 and 262.15 for the hazardous waste determination and 
accumulation of hazardous waste in laboratories owned by eligible 
academic entities that choose to be subject to this subpart, provided 
that they complete the notification requirements of Sec.  262.203.
    (b) Very small quantity generators. This subpart provides 
alternative requirements to the conditional exemption in Sec.  262.14 
for the accumulation of hazardous waste in laboratories owned by 
eligible academic entities that choose to be subject to this subpart, 
provided that they complete the notification requirements of Sec.  
262.203.
0
41. Section 262.202 is revised to read as follows:


Sec.  262.202  This subpart is optional.

    (a) Large quantity generators and small quantity generators. 
Eligible academic entities have the option of complying with this 
subpart with respect to its laboratories, as an alternative to 
complying with the requirements of Sec. Sec.  262.11 and 262.15.
    (b) Very small quantity generators. Eligible academic entities have 
the option of complying with this subpart with respect to laboratories, 
as an alternative to complying with the conditional exemption of Sec.  
262.14.

0
42. Section 262.203 is amended by revising paragraphs (a) and (b)(2) to 
read as follows:


Sec.  262.203  How an eligible academic entity indicates it will be 
subject to the requirements of this subpart.

    (a) An eligible academic entity must notify the appropriate EPA 
Regional Administrator in writing, using the RCRA Subtitle C Site 
Identification Form (EPA Form 8700-12), that it is electing to be 
subject to the requirements of this subpart for all the laboratories 
owned by the eligible academic entity under the same EPA identification 
number. An eligible academic entity that is a very small quantity 
generator and does not have an EPA identification number must notify 
that it is electing to be subject to the requirements of this subpart 
for all the laboratories owned by the eligible academic entity that are 
on site, as defined by Sec.  260.10 of this chapter. An eligible 
academic entity must submit a separate notification (Site 
Identification Form) for each EPA identification number (or site, for 
very small quantity generators) that is electing to be subject to the 
requirements of this subpart, and must submit the Site Identification 
Form before it begins operating under this subpart.
    (b) * * *
    (2) Site EPA identification number (except for very small quantity 
generators).
* * * * *

0
43. Section 262.204 is amended by revising paragraph (a) to read as 
follows:


Sec.  262.204  How an eligible academic entity indicates it will 
withdraw from the requirements of this subpart.

    (a) An eligible academic entity must notify the appropriate EPA 
Regional Administrator in writing, using the RCRA Subtitle C Site 
Identification Form (EPA Form 8700-12), that it is electing to no 
longer be subject to the requirements of this subpart for all the 
laboratories owned by the eligible academic entity under the same EPA 
identification number and that it will comply with the requirements of 
Sec. Sec.  262.11 and 262.15 for small quantity generators and large 
quantity generators. An eligible academic entity that is a very small 
quantity generator and does not have an EPA identification number must 
notify that it is withdrawing from the requirements of this subpart for 
all the laboratories owned by the eligible academic entity that are on 
site and that it will comply with the conditional exemption in Sec.  
262.14. An eligible academic entity must submit a separate notification 
(Site Identification Form) for each EPA identification number (or site, 
for very small quantity generators) that is withdrawing from the 
requirements of this subpart and must

[[Page 85820]]

submit the Site Identification Form before it begins operating under 
the standards in Sec. Sec.  262.11 and 262.15 for small quantity 
generators and large quantity generators or Sec.  262.14 for very small 
quantity generators.
* * * * *


Sec.  262.206  [Amended]

0
44. Amend Sec.  262.206 in paragraph (b)(3)(iii) by removing the period 
at the end of the sentence and adding a colon in its place.

0
45. Section 262.207 is amended by revising paragraph (d)(2) to read as 
follows:


Sec.  262.207  Training.

* * * * *
    (d) * * *
    (2) Make the hazardous waste determination, pursuant to Sec.  
262.11(a) through (d), for unwanted material.

0
46. Section 262.208 is amended by revising paragraphs (a)(1) and (2), 
and (d)(2) to read as follows:


Sec.  262.208  Removing containers of unwanted material from the 
laboratory.

    (a) * * *
    (1) Remove all containers of unwanted material from each laboratory 
on a regular interval, not to exceed 12 months; or
    (2) Remove containers of unwanted material from each laboratory 
within 12 months of each container's accumulation start date.
* * * * *
    (d) * * *
    (2) If a laboratory accumulates more than 1 quart of liquid 
reactive acutely hazardous unwanted material or more than 1 kg (2.2 
pounds) of solid reactive acutely hazardous unwanted material before 
the regularly scheduled removal, then the eligible academic entity must 
ensure that all containers of reactive acutely hazardous unwanted 
material:
    (i) Are marked on the label that is associated with the container 
(or on the label that is affixed or attached to the container, if that 
is preferred) with the date that 1 quart or 1 kg is exceeded; and
    (ii) Are removed from the laboratory within 10 calendar days of the 
date that 1 quart or 1 kg was exceeded, or at the next regularly 
scheduled removal, whichever comes first.

0
47. Section 262.209 is amended by revising paragraph (b) to read as 
follows:


Sec.  262.209  Where and when to make the hazardous waste determination 
and where to send containers of unwanted material upon removal from the 
laboratory.

* * * * *
    (b) Very small quantity generators. An eligible academic entity 
must ensure that a trained professional makes a hazardous waste 
determination, pursuant to Sec.  262.11(a) through (d), for unwanted 
material in the laboratory before the unwanted material is removed from 
the laboratory, in accordance with Sec.  262.210.

0
48. Section 262.210 is amended by revising paragraphs (a), (b)(3), and 
(d)(2) to read as follows:


Sec.  262.210  Making the hazardous waste determination in the 
laboratory before the unwanted material is removed from the laboratory.

* * * * *
    (a) A trained professional must make the hazardous waste 
determination, pursuant to Sec.  262.11(a) through (d), before the 
unwanted material is removed from the laboratory.
    (b) * * *
    (3) Count the hazardous waste toward the eligible academic entity's 
generator category, pursuant to Sec.  262.13, in the calendar month 
that the hazardous waste determination was made.
* * * * *
    (d) * * *
    (2) Very small quantity generators must ensure it is taken directly 
from the laboratory(ies) to any of the types of facilities listed in 
Sec.  262.14.
* * * * *

0
49. Section 262.211 is amended by revising paragraphs (c), (d), and 
(e)(3) to read as follows:


Sec.  262.211  Making the hazardous waste determination at an on-site 
central accumulation area.

* * * * *
    (c) The unwanted material becomes subject to the generator 
accumulation regulations of Sec.  262.16 for small quantity generators 
or Sec.  262.17 for large quantity generators as soon as it arrives in 
the central accumulation area, except for the ``hazardous waste'' 
labeling conditions of Sec.  262.16(b)(6) and Sec.  262.17(a)(5).
    (d) A trained professional must determine, pursuant to Sec.  
262.11(a) through (d), if the unwanted material is a hazardous waste 
within 4 calendar days of the unwanted materials' arrival at the on-
site central accumulation area.
    (e) * * *
    (3) Count the hazardous waste toward the eligible academic entity's 
generator category, pursuant to Sec.  262.13 in the calendar month that 
the hazardous waste determination was made, and
* * * * *

0
50. Section 262.212 is amended by revising paragraph (d) to read as 
follows:


Sec.  262.212  Making the hazardous waste determination at an on-site 
interim status or permitted treatment, storage, or disposal facility.

* * * * *
    (d) A trained professional must determine, pursuant to Sec.  
262.11(a) through (d), if the unwanted material is a hazardous waste 
within 4 calendar days of the unwanted materials' arrival at an on-site 
interim status or permitted treatment, storage, or disposal facility.
* * * * *

0
51. Section 262.213 is amended by revising paragraphs (a)(1), (2) and 
(3) and (b)(2) to read as follows:


Sec.  262.213  Laboratory clean-outs.

    (a) * * *
    (1) If the volume of unwanted material in the laboratory exceeds 55 
gallons (or 1 quart of liquid reactive acutely hazardous unwanted 
material or 1 kg of solid reactive acutely hazardous unwanted 
material), the eligible academic entity is not required to remove all 
unwanted materials from the laboratory within 10 calendar days of 
exceeding 55 gallons (or 1 quart of liquid reactive acutely hazardous 
unwanted material or 1 kg or solid reactive acutely hazardous unwanted 
material), as required by Sec.  262.208. Instead, the eligible academic 
entity must remove all unwanted materials from the laboratory within 30 
calendar days from the start of the laboratory clean-out; and
    (2) For the purposes of on-site accumulation, an eligible academic 
entity is not required to count a hazardous waste that is an unused 
commercial chemical product (listed in 40 CFR part 261, subpart D or 
exhibiting one or more characteristics in 40 CFR part 261, subpart C) 
generated solely during the laboratory clean-out toward its hazardous 
waste generator category, pursuant to Sec.  262.13. An unwanted 
material that is generated prior to the beginning of the laboratory 
clean-out and is still in the laboratory at the time the laboratory 
clean-out commences must be counted toward hazardous waste generator 
category, pursuant to Sec.  262.13, if it is determined to be hazardous 
waste; and
    (3) For the purposes of off-site management, an eligible academic 
entity must count all its hazardous waste, regardless of whether the 
hazardous waste was counted toward generator category under paragraph 
(a)(2) of this section, and if it generates more than 1 kg/month of 
acute hazardous waste or more than 100 kg/month of non-acute hazardous 
waste (i.e., the very small quantity generator limits as defined in 
Sec.  260.10 of this

[[Page 85821]]

chapter), the hazardous waste is subject to all applicable hazardous 
waste regulations when it is transported off site; and
* * * * *
    (b) * * *
    (2) The requirement to count all hazardous waste, including unused 
hazardous waste, generated during the laboratory clean-out toward its 
hazardous waste generator category, pursuant to Sec.  262.13.

0
52. Section 262.214 is amended by revising paragraph (b)(5) to read as 
follows:


Sec.  262.214  Laboratory management plan.

* * * * *
    (b) * * *
    (5) Describe its intended best practices for making hazardous waste 
determinations, including specifying the duties of the individuals 
involved in the process (see the required standards at Sec.  262.11(a) 
through (d) and Sec. Sec.  262.209 through 262.212).
* * * * *

0
53. Section 262.216 is amended by revising paragraphs (a) and (b) to 
read as follows:


Sec.  262.216  Non-laboratory hazardous waste generated at an eligible 
academic entity.

* * * * *
    (a) Remains subject to the generator requirements of Sec. Sec.  
262.11 and 262.15 for large quantity generators and small quantity 
generators (if the hazardous waste is managed in a satellite 
accumulation area), and all other applicable generator requirements of 
40 CFR part 262, with respect to that hazardous waste; or
    (b) Remains subject to the conditional exemption of Sec.  262.14 
for very small quantity generators, with respect to that hazardous 
waste.

0
54. Subpart L is added to read as follows:
Subpart L-- Alternative Standards for Episodic Generation
Sec.
262.230 Applicability.
262.231 Definitions for this subpart.
262.232 Conditions for a generator managing hazardous waste from an 
episodic event.
262.233 Petition to manage one additional episodic event per 
calendar year.

Subpart L--Alternative Standards for Episodic Generation


Sec.  262.230  Applicability.

    This subpart is applicable to very small quantity generators and 
small quantity generators as defined in Sec.  260.10 of this chapter.


Sec.  262.231   Definitions for this subpart.

    Episodic event means an activity or activities, either planned or 
unplanned, that does not normally occur during generator operations, 
resulting in an increase in the generation of hazardous wastes that 
exceeds the calendar month quantity limits for the generator's usual 
category.
    Planned episodic event means an episodic event that the generator 
planned and prepared for, including regular maintenance, tank 
cleanouts, short-term projects, and removal of excess chemical 
inventory
    Unplanned episodic event means an episodic event that the generator 
did not plan or reasonably did not expect to occur, including 
production process upsets, product recalls, accidental spills, or 
``acts of nature,'' such as tornado, hurricane, or flood.


Sec.  262.232  Conditions for a generator managing hazardous waste from 
an episodic event.

    (a) Very small quantity generator. A very small quantity generator 
may maintain its existing generator category for hazardous waste 
generated during an episodic event provided that the generator complies 
with the following conditions:
    (1) The very small quantity generator is limited to one episodic 
event per calendar year, unless a petition is granted under Sec.  
262.233;
    (2) Notification. The very small quantity generator must notify EPA 
no later than thirty (30) calendar days prior to initiating a planned 
episodic event using EPA Form 8700-12. In the event of an unplanned 
episodic event, the generator must notify EPA within 72 hours of the 
unplanned event via phone, email, or fax and subsequently submit EPA 
Form 8700-12. The generator shall include the start date and end date 
of the episodic event, the reason(s) for the event, types and estimated 
quantities of hazardous waste expected to be generated as a result of 
the episodic event, and shall identify a facility contact and emergency 
coordinator with 24-hour telephone access to discuss the notification 
submittal or respond to an emergency in compliance with Sec.  
262.16(b)(9)(i);
    (3) EPA ID Number. The very small quantity generator must have an 
EPA identification number or obtain an EPA identification number using 
EPA Form 8700-12;
    (4) Accumulation. A very small quantity generator is prohibited 
from accumulating hazardous waste generated from an episodic event on 
drip pads and in containment buildings. When accumulating hazardous 
waste in containers and tanks the following conditions apply:
    (i) Containers. A very small quantity generator accumulating in 
containers must mark or label its containers with the following:
    (A) The words ``Episodic Hazardous Waste'';
    (B) An indication of the hazards of the contents (examples include, 
but are not limited to, the applicable hazardous waste 
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard 
communication consistent with the Department of Transportation 
requirements at 49 CFR part 172 subpart E (labeling) or subpart F 
(placarding); a hazard statement or pictogram consistent with the 
Occupational Safety and Health Administration Hazard Communication 
Standard at 29 CFR 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704); and
    (C) The date upon which the episodic event began, clearly visible 
for inspection on each container.
    (ii) Tanks. A very small quantity generator accumulating episodic 
hazardous waste in tanks must do the following:
    (A) Mark or label the tank with the words ``Episodic Hazardous 
Waste'';
    (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 1910.1200; or a chemical hazard label 
consistent with the National Fire Protection Association code 704);
    (C) Use inventory logs, monitoring equipment or other records to 
identify the date upon which each episodic event begins; and
    (D) Keep inventory logs or records with the above information on 
site and readily available for inspection.
    (iii) Hazardous waste must be managed in a manner that minimizes 
the possibility of a fire, explosion, or release of hazardous waste or 
hazardous waste constituents to the air, soil, or water;
    (A) Containers must be in good condition and compatible with the 
hazardous waste being accumulated therein. Containers must be kept 
closed except to add or remove waste; and.

[[Page 85822]]

    (B) Tanks must be in good condition and compatible with the 
hazardous waste accumulated therein. Tanks must have procedures in 
place to prevent the overflow (e.g., be equipped with a means to stop 
inflow with systems such as a waste feed cutoff system or bypass system 
to a standby tank when hazardous waste is continuously fed into the 
tank). Tanks must be inspected at least once each operating day to 
ensure all applicable discharge control equipment, such as waste feed 
cutoff systems, bypass systems, and drainage systems are in good 
working order and to ensure the tank is operated according to its 
design by reviewing the data gathered from monitoring equipment such as 
pressure and temperature gauges from the inspection.
    (5) The very small quantity generator must comply with the 
hazardous waste manifest provisions of subpart B of this part when it 
sends its episodic event hazardous waste off site to a designated 
facility, as defined in Sec.  260.10 of this chapter.
    (6) The very small quantity generator has up to sixty (60) calendar 
days from the start of the episodic event to manifest and send its 
hazardous waste generated from the episodic event to a designated 
facility, as defined in Sec.  260.10 of this chapter.
    (7) Very small quantity generators must maintain the following 
records for three (3) years from the end date of the episodic event:
    (i) Beginning and end dates of the episodic event;
    (ii) A description of the episodic event;
    (iii) A description of the types and quantities of hazardous wastes 
generated during the event;
    (iv) A description of how the hazardous waste was managed as well 
as the name of the RCRA-designated facility that received the hazardous 
waste;
    (v) Name(s) of hazardous waste transporters; and
    (vi) An approval letter from EPA if the generator petitioned to 
conduct one additional episodic event per calendar year.
    (b) Small quantity generators. A small quantity generator may 
maintain its existing generator category during an episodic event 
provided that the generator complies with the following conditions:
    (1) The small quantity generator is limited to one episodic event 
per calendar year unless a petition is granted under Sec.  262.233;
    (2) Notification. The small quantity generator must notify EPA no 
later than thirty (30) calendar days prior to initiating a planned 
episodic event using EPA Form 8700-12. In the event of an unplanned 
episodic event, the small quantity generator must notify EPA within 72 
hours of the unplanned event via phone, email, or fax, and subsequently 
submit EPA Form 8700-12. The small quantity generator shall include the 
start date and end date of the episodic event and the reason(s) for the 
event, types and estimated quantities of hazardous wastes expected to 
be generated as a result of the episodic event, and identify a facility 
contact and emergency coordinator with 24-hour telephone access to 
discuss the notification submittal or respond to emergency;
    (3) EPA ID Number. The small quantity generator must have an EPA 
identification number or obtain an EPA identification number using EPA 
Form 8700-12; and
    (4) Accumulation by small quantity generators. A small quantity 
generator is prohibited from accumulating hazardous wastes generated 
from an episodic event waste on drip pads and in containment buildings. 
When accumulating hazardous waste generated from an episodic event in 
containers and tanks, the following conditions apply:
    (i) Containers. A small quantity generator accumulating episodic 
hazardous waste in containers must meet the standards at Sec.  
262.16(b)(2) of this chapter and must mark or label its containers with 
the following:
    (A) The words ``Episodic Hazardous Waste'';
    (B) An indication of the hazards of the contents (examples include, 
but are not limited to, the applicable hazardous waste 
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard 
communication consistent with the Department of Transportation 
requirements at 49 CFR part 172 subpart E (labeling) or subpart F 
(placarding); a hazard statement or pictogram consistent with the 
Occupational Safety and Health Administration Hazard Communication 
Standard at 29 CFR 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704); and
    (C) The date upon which the episodic event began, clearly visible 
for inspection on each container.
    (ii) Tanks. A small quantity generator accumulating episodic 
hazardous waste in tanks must meet the standards at Sec.  262.16(b)(3) 
and must do the following:
    (A) Mark or label its tank with the words ``Episodic Hazardous 
Waste'';
    (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 1910.1200; or a chemical hazard label 
consistent with the National Fire Protection Association code 704);
    (C) Use inventory logs, monitoring equipment or other records to 
identify the date upon which each period of accumulation begins and 
ends; and
    (D) Keep inventory logs or records with the above information on 
site and available for inspection.
    (5) The small quantity generator must treat hazardous waste 
generated from an episodic event on site or manifest and ship such 
hazardous waste off site to a designated facility (as defined by Sec.  
260.10 of this chapter) within sixty (60) calendar days from the start 
of the episodic event.
    (6) The small quantity generator must maintain the following 
records for three (3) years from the end date of the episodic event:
    (i) Beginning and end dates of the episodic event;
    (ii) A description of the episodic event;
    (iii) A description of the types and quantities of hazardous wastes 
generated during the event;
    (iv) A description of how the hazardous waste was managed as well 
as the name of the designated facility (as defined by Sec.  260.10 of 
this chapter) that received the hazardous waste;
    (v) Name(s) of hazardous waste transporters; and
    (vi) An approval letter from EPA if the generator petitioned to 
conduct one additional episodic event per calendar year.


Sec.  262.233  Petition to manage one additional episodic event per 
calendar year.

    (a) A generator may petition the Regional Administrator for a 
second episodic event in a calendar year without impacting its 
generator category under the following conditions:
    (1) If a very small quantity generator or small quantity generator 
has already held a planned episodic event in a calendar year, the 
generator may petition EPA for an additional unplanned episodic event 
in that calendar year within 72 hours of the unplanned event.
    (2) If a very small quantity generator or small quantity generator 
has already

[[Page 85823]]

held an unplanned episodic event in a calendar year, the generator may 
petition EPA for an additional planned episodic event in that calendar 
year.
    (b) The petition must include the following:
    (1) The reason(s) why an additional episodic event is needed and 
the nature of the episodic event;
    (2) The estimated amount of hazardous waste to be managed from the 
event;
    (3) How the hazardous waste is to be managed;
    (4) The estimated length of time needed to complete management of 
the hazardous waste generated from the episodic event--not to exceed 
sixty (60) days; and
    (5) Information regarding the previous episodic event managed by 
the generator, including the nature of the event, whether it was a 
planned or unplanned event, and how the generator complied with the 
conditions.
    (c) The petition must be made to the Regional Administrator in 
writing, either on paper or electronically.
    (d) The generator must retain written approval in its records for 
three (3) years from the date the episodic event ended.

0
55. Subpart M is added to read as follows:
Subpart M--Preparedness, Prevention, and Emergency Procedures for Large 
Quantity Generators
Sec.
262.250 Applicability.
262.251 Maintenance and operation of facility.
262.252 Required equipment.
262.253 Testing and maintenance of equipment.
262.254 Access to communications or alarm system.
262.255 Required aisle space.
262.256 Arrangements with local authorities.
262.260 Purpose and implementation of contingency plan.
262.261 Content of contingency plan.
262.262 Copies of contingency plan.
262.263 Amendment of contingency plan.
262.264 Emergency coordinator.
262.265 Emergency procedures.

Subpart M--Preparedness, Prevention, and Emergency Procedures for 
Large Quantity Generators


Sec.  262.250  Applicability.

    The regulations of this subpart apply to those areas of a large 
quantity generator where hazardous waste is generated or accumulated on 
site.


Sec.  262.251  Maintenance and operation of facility.

    A large quantity generator must maintain and operate its facility 
to minimize the possibility of a fire, explosion, or any unplanned 
sudden or non-sudden release of hazardous waste or hazardous waste 
constituents to air, soil, or surface water which could threaten human 
health or the environment.


Sec.  262.252  Required equipment.

    All areas deemed applicable by Sec.  262.250 must be equipped with 
the items in paragraphs (a) through (d) of this section (unless none of 
the hazards posed by waste handled at the facility could require a 
particular kind of equipment specified below or the actual hazardous 
waste generation or accumulation area does not lend itself for safety 
reasons to have a particular kind of equipment specified below). A 
large quantity generator may determine the most appropriate locations 
within its facility to locate equipment necessary to prepare for and 
respond to emergencies:
    (a) An internal communications or alarm system capable of providing 
immediate emergency instruction (voice or signal) to facility 
personnel;
    (b) A device, such as a telephone (immediately available at the 
scene of operations) or a hand-held two-way radio, capable of summoning 
emergency assistance from local police departments, fire departments, 
or state or local emergency response teams;
    (c) Portable fire extinguishers, fire control equipment (including 
special extinguishing equipment, such as that using foam, inert gas, or 
dry chemicals), spill control equipment, and decontamination equipment; 
and
    (d) Water at adequate volume and pressure to supply water hose 
streams, or foam producing equipment, or automatic sprinklers, or water 
spray systems.


Sec.  262.253  Testing and maintenance of equipment.

    All communications or alarm systems, fire protection equipment, 
spill control equipment, and decontamination equipment, where required, 
must be tested and maintained as necessary to assure its proper 
operation in time of emergency.


Sec.  262.254  Access to communications or alarm system.

    (a) Whenever hazardous waste is being poured, mixed, spread, or 
otherwise handled, all personnel involved in the operation must have 
immediate access (e.g., direct or unimpeded access) to an internal 
alarm or emergency communication device, either directly or through 
visual or voice contact with another employee, unless such a device is 
not required under Sec.  262.252.
    (b) In the event there is just one employee on the premises while 
the facility is operating, the employee must have immediate access 
(e.g., direct or unimpeded access) to a device, such as a telephone 
(immediately available at the scene of operation) or a hand-held two-
way radio, capable of summoning external emergency assistance, unless 
such a device is not required under Sec.  262.252.


Sec.  262.255  Required aisle space.

    The large quantity generator must maintain aisle space to allow the 
unobstructed movement of personnel, fire protection equipment, spill 
control equipment, and decontamination equipment to any area of 
facility operation in an emergency, unless aisle space is not needed 
for any of these purposes.


Sec.  262.256  Arrangements with local authorities.

    (a) The large quantity generator must attempt to make arrangements 
with the local police department, fire department, other emergency 
response teams, emergency response contractors, equipment suppliers, 
and local hospitals, taking into account the types and quantities of 
hazardous wastes handled at the facility. Arrangements may be made with 
the Local Emergency Planning Committee, if it is determined to be the 
appropriate organization with which to make arrangements.
    (1) A large quantity generator attempting to make arrangements with 
its local fire department must determine the potential need for the 
services of the local police department, other emergency response 
teams, emergency response contractors, equipment suppliers and local 
hospitals.
    (2) As part of this coordination, the large quantity generator 
shall attempt to make arrangements, as necessary, to familiarize the 
above organizations with the layout of the facility, the properties of 
the hazardous waste handled at the facility and associated hazards, 
places where personnel would normally be working, entrances to roads 
inside the facility, and possible evacuation routes as well as the 
types of injuries or illnesses which could result from fires, 
explosions, or releases at the facility.
    (3) Where more than one police or fire department might respond to 
an emergency, the large quantity generator shall attempt to make 
arrangements designating primary emergency authority to a specific fire 
or police department, and arrangements with any others to provide 
support to the primary emergency authority.

[[Page 85824]]

    (b) The large quantity generator shall maintain records documenting 
the arrangements with the local fire department as well as any other 
organization necessary to respond to an emergency. This documentation 
must include documentation in the operating record that either confirms 
such arrangements actively exist or, in cases where no arrangements 
exist, confirms that attempts to make such arrangements were made.
    (c) A facility possessing 24-hour response capabilities may seek a 
waiver from the authority having jurisdiction (AHJ) over the fire code 
within the facility's state or locality as far as needing to make 
arrangements with the local fire department as well as any other 
organization necessary to respond to an emergency, provided that the 
waiver is documented in the operating record.


Sec.  262.260   Purpose and implementation of contingency plan.

    (a) A large quantity generator must have a contingency plan for the 
facility. The contingency plan must be designed to minimize hazards to 
human health or the environment from fires, explosions, or any 
unplanned sudden or non-sudden release of hazardous waste or hazardous 
waste constituents to air, soil, or surface water.
    (b) The provisions of the plan must be carried out immediately 
whenever there is a fire, explosion, or release of hazardous waste or 
hazardous waste constituents which could threaten human health or the 
environment.


Sec.  262.261  Content of contingency plan.

    (a) The contingency plan must describe the actions facility 
personnel must take to comply with Sec. Sec.  262.260 and 262.265 in 
response to fires, explosions, or any unplanned sudden or non-sudden 
release of hazardous waste or hazardous waste constituents to air, 
soil, or surface water at the facility.
    (b) If the generator has already prepared a Spill Prevention, 
Control, and Countermeasures (SPCC) Plan in accordance with part 112 of 
this chapter, or some other emergency or contingency plan, it need only 
amend that plan to incorporate hazardous waste management provisions 
that are sufficient to comply with the standards of this part. The 
generator may develop one contingency plan that meets all regulatory 
standards. EPA recommends that the plan be based on the National 
Response Team's Integrated Contingency Plan Guidance (``One Plan'').
    (c) The plan must describe arrangements agreed to with the local 
police department, fire department, other emergency response teams, 
emergency response contractors, equipment suppliers, local hospitals 
or, if applicable, the Local Emergency Planning Committee, pursuant to 
Sec.  262.256.
    (d) The plan must list names and emergency telephone numbers of all 
persons qualified to act as emergency coordinator (see Sec.  262.264), 
and this list must be kept up to date. Where more than one person is 
listed, one must be named as primary emergency coordinator and others 
must be listed in the order in which they will assume responsibility as 
alternates. In situations where the generator facility has an emergency 
coordinator continuously on duty because it operates 24 hours per day, 
every day of the year, the plan may list the staffed position (e.g., 
operations manager, shift coordinator, shift operations supervisor) as 
well as an emergency telephone number that can be guaranteed to be 
answered at all times.
    (e) The plan must include a list of all emergency equipment at the 
facility (such as fire extinguishing systems, spill control equipment, 
communications and alarm systems (internal and external), and 
decontamination equipment), where this equipment is required. This list 
must be kept up to date. In addition, the plan must include the 
location and a physical description of each item on the list, and a 
brief outline of its capabilities.
    (f) The plan must include an evacuation plan for generator 
personnel where there is a possibility that evacuation could be 
necessary. This plan must describe signal(s) to be used to begin 
evacuation, evacuation routes, and alternate evacuation routes (in 
cases where the primary routes could be blocked by releases of 
hazardous waste or fires).


Sec.  262.262   Copies of contingency plan.

    A copy of the contingency plan and all revisions to the plan must 
be maintained at the large quantity generator and--
    (a) The large quantity generator must submit a copy of the 
contingency plan and all revisions to all local emergency responders 
(i.e., police departments, fire departments, hospitals and State and 
local emergency response teams that may be called upon to provide 
emergency services). This document may also be submitted to the Local 
Emergency Planning Committee, as appropriate.
    (b) A large quantity generator that first becomes subject to these 
provisions after May 30, 2017 or a large quantity generator that is 
otherwise amending its contingency plan must at that time submit a 
quick reference guide of the contingency plan to the local emergency 
responders identified at paragraph (a) of this section or, as 
appropriate, the Local Emergency Planning Committee. The quick 
reference guide must include the following elements:
    (1) The types/names of hazardous wastes in layman's terms and the 
associated hazard associated with each hazardous waste present at any 
one time (e.g., toxic paint wastes, spent ignitable solvent, corrosive 
acid);
    (2) The estimated maximum amount of each hazardous waste that may 
be present at any one time;
    (3) The identification of any hazardous wastes where exposure would 
require unique or special treatment by medical or hospital staff;
    (4) A map of the facility showing where hazardous wastes are 
generated, accumulated and treated and routes for accessing these 
wastes;
    (5) A street map of the facility in relation to surrounding 
businesses, schools and residential areas to understand how best to get 
to the facility and also evacuate citizens and workers;
    (6) The locations of water supply (e.g., fire hydrant and its flow 
rate);
    (7) The identification of on-site notification systems (e.g., a 
fire alarm that rings off site, smoke alarms); and
    (8) The name of the emergency coordinator(s) and 7/24-hour 
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.
    (c) Generators must update, if necessary, their quick reference 
guides, whenever the contingency plan is amended and submit these 
documents to the local emergency responders identified at paragraph (a) 
of this section or, as appropriate, the Local Emergency Planning 
Committee.


Sec.  262.263  Amendment of contingency plan.

    The contingency plan must be reviewed, and immediately amended, if 
necessary, whenever:
    (a) Applicable regulations are revised;
    (b) The plan fails in an emergency;
    (c) The generator facility changes--in its design, construction, 
operation, maintenance, or other circumstances--in a way that 
materially increases the potential for fires, explosions, or releases 
of hazardous waste or hazardous waste constituents, or changes the 
response necessary in an emergency;

[[Page 85825]]

    (d) The list of emergency coordinators changes; or
    (e) The list of emergency equipment changes.


Sec.  262.264  Emergency coordinator.

    At all times, there must be at least one employee either on the 
generator's premises or on call (i.e., available to respond to an 
emergency by reaching the facility within a short period of time) with 
the responsibility for coordinating all emergency response measures and 
implementing the necessary emergency procedures outlined in Sec.  
262.265. Although responsibilities may vary depending on factors such 
as type and variety of hazardous waste(s) handled by the facility, as 
well as type and complexity of the facility, this emergency coordinator 
must be thoroughly familiar with all aspects of the generator's 
contingency plan, all operations and activities at the facility, the 
location and characteristics of hazardous waste handled, the location 
of all records within the facility, and the facility's layout. In 
addition, this person must have the authority to commit the resources 
needed to carry out the contingency plan.


Sec.  262.265  Emergency procedures.

    (a) Whenever there is an imminent or actual emergency situation, 
the emergency coordinator (or his designee when the emergency 
coordinator is on call) must immediately:
    (1) Activate internal facility alarms or communication systems, 
where applicable, to notify all facility personnel; and
    (2) Notify appropriate state or local agencies with designated 
response roles if their help is needed.
    (b) Whenever there is a release, fire, or explosion, the emergency 
coordinator must immediately identify the character, exact source, 
amount, and areal extent of any released materials. The emergency 
coordinator may do this by observation or review of the facility 
records or manifests and, if necessary, by chemical analysis.
    (c) Concurrently, the emergency coordinator must assess possible 
hazards to human health or the environment that may result from the 
release, fire, or explosion. This assessment must consider both direct 
and indirect effects of the release, fire, or explosion (e.g., the 
effects of any toxic, irritating, or asphyxiating gases that are 
generated, or the effects of any hazardous surface water run-offs from 
water or chemical agents used to control fire and heat-induced 
explosions).
    (d) If the emergency coordinator determines that the facility has 
had a release, fire, or explosion which could threaten human health, or 
the environment, outside the facility, the emergency coordinator must 
report the findings as follows:
    (1) If the assessment indicates that evacuation of local areas may 
be advisable, the emergency coordinator must immediately notify 
appropriate local authorities. The emergency coordinator must be 
available to help appropriate officials decide whether local areas 
should be evacuated; and
    (2) The emergency coordinator must immediately notify either the 
government official designated as the on-scene coordinator for that 
geographical area, or the National Response Center (using their 24-hour 
toll free number 800/424-8802). The report must include:
    (i) Name and telephone number of reporter;
    (ii) Name and address of the generator;
    (iii) Time and type of incident (e.g., release, fire);
    (iv) Name and quantity of material(s) involved, to the extent 
known;
    (v) The extent of injuries, if any; and
    (vi) The possible hazards to human health, or the environment, 
outside the facility.
    (e) During an emergency, the emergency coordinator must take all 
reasonable measures necessary to ensure that fires, explosions, and 
releases do not occur, recur, or spread to other hazardous waste at the 
generator's facility. These measures must include, where applicable, 
stopping processes and operations, collecting and containing released 
hazardous waste, and removing or isolating containers.
    (f) If the generator stops operations in response to a fire, 
explosion or release, the emergency coordinator must monitor for leaks, 
pressure buildup, gas generation, or ruptures in valves, pipes, or 
other equipment, wherever this is appropriate.
    (g) Immediately after an emergency, the emergency coordinator must 
provide for treating, storing, or disposing of recovered waste, 
contaminated soil or surface water, or any other material that results 
from a release, fire, or explosion at the facility. Unless the 
generator can demonstrate, in accordance with Sec.  261.3(c) or (d) of 
this chapter, that the recovered material is not a hazardous waste, 
then it is a newly generated hazardous waste that must be managed in 
accordance with all the applicable requirements and conditions for 
exemption in parts 262, 263, and 265 of this chapter.
    (h) The emergency coordinator must ensure that, in the affected 
area(s) of the facility:
    (1) No hazardous waste that may be incompatible with the released 
material is treated, stored, or disposed of until cleanup procedures 
are completed; and
    (2) All emergency equipment listed in the contingency plan is 
cleaned and fit for its intended use before operations are resumed.
    (i) The generator must note in the operating record the time, date, 
and details of any incident that requires implementing the contingency 
plan. Within 15 days after the incident, the generator must submit a 
written report on the incident to the Regional Administrator. The 
report must include:
    (1) Name, address, and telephone number of the generator;
    (2) Date, time, and type of incident (e.g., fire, explosion);
    (3) Name and quantity of material(s) involved;
    (4) The extent of injuries, if any;
    (5) An assessment of actual or potential hazards to human health or 
the environment, where this is applicable; and
    (6) Estimated quantity and disposition of recovered material that 
resulted from the incident.

PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE

0
56. The authority citation for part 263 continues to read as follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.


0
57. Section 263.12 is revised to read as follows:


Sec.  263.12  Transfer facility requirements.

    (a) A transporter who stores manifested shipments of hazardous 
waste in containers meeting the independent requirements of Sec.  
262.30 of this chapter at a transfer facility for a period of ten (10) 
days or less is not subject to regulation under parts 264, 265, 267, 
268, and 270 of this chapter with respect to the storage of those 
wastes.
    (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'' and
    (2) The applicable EPA hazardous waste number(s) (EPA hazardous 
waste

[[Page 85826]]

codes) in subparts C and D of part 261 of this chapter, or in 
compliance with Sec.  262.32(c).

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
58. The authority citation for part 264 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6924, and 6925.

0
59. Section 264.1 is amended by revising paragraphs (g)(1) and (3) to 
read as follows:


Sec.  264.1  Purpose, scope and applicability.

* * * * *
    (g) * * *
    (1) The owner or operator of a facility permitted, licensed, or 
registered by a state to manage municipal or industrial solid waste, if 
the only hazardous waste the facility treats, stores, or disposes of is 
excluded from regulation under this part by Sec.  262.14 of this 
chapter;
* * * * *
    (3) A generator accumulating waste on site in compliance with 
Sec. Sec.  262.14, 262.15, 262.16, or 262.17 of this chapter.
* * * * *

0
60. Section 264.15 is amended by revising paragraph (b)(4) and removing 
the comment to paragraph (b)(4) to read as follows:


Sec.  264.15  General inspection requirements.

* * * * *
    (b) * * *
    (4) The frequency of inspection may vary for the items on the 
schedule. However, the frequency should be based on the rate of 
deterioration of the equipment and the probability of an environmental 
or human health incident if the deterioration, malfunction, or operator 
error goes undetected between inspections. Areas subject to spills, 
such as loading and unloading areas, must be inspected daily when in 
use. At a minimum, the inspection schedule must include the items and 
frequencies called for in Sec. Sec.  264.174, 264.193, 264.195, 
264.226, 264.254, 264.278, 264.303, 264.347, 264.602, 264.1033, 
264.1052, 264.1053, 264.1058, and 264.1083 through 264.1089, where 
applicable. Part 270 of this chapter requires the inspection schedule 
to be submitted with part B of the permit application. EPA will 
evaluate the schedule along with the rest of the application to ensure 
that it adequately protects human health and the environment. As part 
of this review, EPA may modify or amend the schedule as may be 
necessary.
* * * * *

0
61. Section 264.71 is amended by revising paragraph (c) and removing 
the comment to paragraph (c) to read as follows:


Sec.  264.71  Use of manifest system.

* * * * *
    (c) Whenever a shipment of hazardous waste is initiated from a 
facility, the owner or operator of that facility must comply with the 
requirements of part 262 of this chapter. The provisions of Sec. Sec.  
262.15, 262.16, and 262.17 of this chapter are applicable to the on-
site accumulation of hazardous wastes by generators. Therefore, the 
provisions of Sec. Sec.  262.15, 262.16, and 262.17 of this chapter 
only apply to owners or operators who are shipping hazardous waste 
which they generated at that facility or operating as a large quantity 
generator consolidating hazardous waste from very small quantity 
generators under Sec.  262.17(f).
* * * * *

0
62. Section 264.75 is revised to read as follows:


Sec.  264.75  Biennial report.

    The owner or operator must complete and submit EPA Form 8700-13 A/B 
to the Regional Administrator by March 1 of the following even numbered 
year and must cover activities during the previous year.

0
63. Section 264.170 is revised to read as follows:


Sec.  264.170  Applicability.

    The regulations in this subpart apply to owners and operators of 
all hazardous waste facilities that store hazardous waste in 
containers, except as Sec.  264.1 provides otherwise.
    [Comment: Under Sec.  261.7 and Sec.  261.33(c) of this chapter, if 
a hazardous waste is emptied from a container the residue remaining in 
the container is not considered a hazardous waste if the container is 
``empty'' as defined in Sec.  261.7. In that event, management of the 
container is exempt from the requirements of this subpart.]

0
64. Section 264.174 is revised to read as follows:


Sec.  264.174  Inspections.

    At least weekly, the owner or operator must inspect areas where 
containers are stored. The owner or operator must look for leaking 
containers and for deterioration of containers and the containment 
system cause by corrosion or other factors. See Sec. Sec.  264.15(c) 
and 264.171 for remedial action required if deterioration or leaks are 
detected.

0
65. Section 264.191 is amended by revising paragraph (a) to read as 
follows:


Sec.  264.191  Assessment of existing tank system's integrity.

    (a) For each existing tank system that does not have secondary 
containment meeting the requirements of Sec.  264.193, the owner or 
operator must determine that the tank system is not leaking or is fit 
for use. Except as provided in paragraph (c) of this section, the owner 
or operator must obtain and keep on file at the facility a written 
assessment reviewed and certified by a qualified Professional Engineer, 
in accordance with Sec.  270.11(d) of this chapter, that attests to the 
tank system's integrity by January 12, 1988.
* * * * *


Sec.  264.195  [Amended]

0
66. Section 264.195 is amended by removing and reserving paragraph (e).
0
67. Section 264.1030 is amended by revising paragraph (b)(2) to read as 
follows:


Sec.  264.1030  Applicability.

* * * * *
    (b) * * *
    (2) A unit (including a hazardous waste recycling unit) that is not 
exempt from permitting under the provisions of 40 CFR 262.17 (i.e., a 
hazardous waste recycling unit that is not a 90-day tank or container) 
and that is located at a hazardous waste management facility otherwise 
subject to the permitting requirements of 40 CFR part 270; or
* * * * *

0
68. Section 264.1050 is amended by revising paragraph (b)(3) to read as 
follows:


Sec.  264.1050  Applicability.

* * * * *
    (b) * * *
    (3) A unit that is exempt from permitting under the provisions of 
40 CFR 262.17 (i.e., a ``90-day'' tank or container) and is not a 
recycling unit under the provisions of 40 CFR 261.6.
* * * * *

0
69. Section 264.1101 is amended by revising paragraph (c)(4) to read as 
follows:


Sec.  264.1101  Design and operating standards.

* * * * *
    (c) * * *
    (4) Inspect and record in the facility operating record, at least 
once every seven days, data gathered from monitoring and leak detection 
equipment as well as the containment building and the area immediately 
surrounding the containment building

[[Page 85827]]

to detect signs of releases of hazardous waste.
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
70. The authority citation for part 265 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, and 6937.

0
71. Section 265.1 is amended by revising paragraphs (c)(5) and (7) to 
read as follows:


Sec.  265.1  Purpose, scope, and applicability.

* * * * *
    (c) * * *
    (5) The owner or operator of a facility permitted, licensed, or 
registered by a State to manage municipal or industrial solid waste, if 
the only hazardous waste the facility treats, stores, or disposes of is 
excluded from regulation under this part by Sec.  262.14 of this 
chapter;
* * * * *
    (7) A generator accumulating waste on site in compliance with 
applicable conditions for exemption in Sec. Sec.  262.14 through 262.17 
and subparts K and L of part 262 of this chapter, except to the extent 
the requirements of this part are included in those sections and 
subparts;
* * * * *

0
72. Section 265.15 is amended by revising paragraph (b)(4) and removing 
paragraph (b)(5).
    The revision reads as follows:


Sec.  265.15  General inspection requirements.

* * * * *
    (b) * * *
    (4) The frequency of inspection may vary for the items on the 
schedule. However, the frequency should be based on the rate of 
deterioration of the equipment and the probability of an environmental 
or human health incident if the deterioration, malfunction, or operator 
error goes undetected between inspections. Areas subject to spills, 
such as loading and unloading areas, must be inspected daily when in 
use. At a minimum, the inspection schedule must include the items and 
frequencies called for in Sec. Sec.  265.174, 265.193, 265.195, 
265.226, 265.260, 265.278, 265.304, 265.347, 265.377, 265.403, 
265.1033, 265.1052, 265.1053, 265.1058, and 265.1084 through 265.1090, 
where applicable.
* * * * *

0
73. Section 265.71 is amended by revising paragraph (c) to read as 
follows:


Sec.  265.71  Use of manifest system.

* * * * *
    (c) Whenever a shipment of hazardous waste is initiated from a 
facility, the owner or operator of that facility must comply with the 
requirements of part 262 of this chapter. The provisions of Sec. Sec.  
262.15, 262.16, and 262.17 of this chapter are applicable to the on-
site accumulation of hazardous wastes by generators. Therefore, the 
provisions of Sec. Sec.  262.15, 262.16, and 262.17 only apply to 
owners or operators who are shipping hazardous waste which they 
generated at that facility or operating as a large quantity generator 
consolidating hazardous waste from very small quantity generators under 
Sec.  262.17(f).
* * * * *

0
74. Section 265.75 is revised to read as follows:


Sec.  265.75  Biennial report.

    The owner or operator must complete and submit EPA Form 8700-13 A/B 
to the Regional Administrator by March 1 of the following even numbered 
year and must cover activities during the previous year.

0
75. Section 265.174 is revised to read as follows:


Sec.  265.174  Inspections.

    At least weekly, the owner or operator must inspect areas where 
containers are stored. The owner or operator must look for leaking 
containers and for deterioration of containers caused by corrosion or 
other factors. See Sec.  265.171 for remedial action required if 
deterioration or leaks are detected.


Sec.  265.195   [Amended]

0
76. Section 265.195 is amended by removing and reserving paragraph (d).


Sec.  265.201  [Removed and reserved]

0
77. Remove and reserve Sec.  265.201.

0
78. Section 265.1030 is amended by revising paragraphs (b)(2) and (3) 
to read as follows:


Sec.  265.1030  Applicability.

* * * * *
    (b) * * *
    (2) A unit (including a hazardous waste recycling unit) that is not 
exempt from permitting under the provisions of 40 CFR 262.17 (i.e., a 
hazardous waste recycling unit that is not a 90-day tank or container) 
and that is located at a hazardous waste management facility otherwise 
subject to the permitting requirements of 40 CFR part 270, or
    (3) A unit that is exempt from permitting under the provisions of 
40 CFR 262.17 (i.e., a ``90-day'' tank or container) and is not a 
recycling unit under the requirements of 40 CFR 261.6.
* * * * *


Sec.  265.1050   [Amended]

0
79. Amend Sec.  265.1050 by removing the text ``40 CFR 262.34(a)'' 
wherever it appears and adding in its place the text ``40 CFR 262.17''.

0
80. Section 265.1101 is amended by revising paragraph (c)(4) to read as 
follows:


Sec.  265.1101   Design and operating standards.

* * * * *
    (c) * * *
    (4) Inspect and record in the facility's operating record at least 
once every seven days data gathered from monitoring and leak detection 
equipment as well as the containment building and the area immediately 
surrounding the containment building to detect signs of releases of 
hazardous waste.
* * * * *

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES 
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILTIES

0
81. The authority citation for part 266 continues to read as follows:

    Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 3017, 6905, 
6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937.


Sec.  266.80  [Amended]

0
82. Amend Sec.  266.80(a) by removing the text ``Sec.  262.12'' and 
adding the text ``Sec.  262.18'' in its place, seven times.


Sec.  266.255   [Amended]

0
83. Amend Sec.  266.255(a) by removing the text ``40 CFR 262.34'' and 
adding the text ``40 CFR 262.16 or 262.17'' in its place.

PART 267--STANDARDS FOR OWNERS AND OPERATORS OF FACILITIES 
OPERATING UNDER A STANDARDIZED PERMIT

0
84. The authority citation for part 267 continues to read as follows:

    Authority: 42 U.S.C. 6902, 6912(a), 6924-6926, and 6930.


Sec.  267.71   [Amended]

0
85. Amend Sec.  267.71(c) by removing the text ``Sec.  262.34'' 
wherever it appears and adding in its place the text ``Sec.  262.16 or 
262.17''.

PART 268--LAND DISPOSAL RESTRICTIONS

0
86. The authority citation for part 268 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

[[Page 85828]]


0
87. Section 268.1 is amended by revising paragraph (e)(1) to read as 
follows:


Sec.  268.1  Purpose, scope, and applicability.

* * * * *
    (e) * * *
    (1) Waste generated by very small quantity generators, as defined 
in Sec.  260.10 of this chapter;
* * * * *

0
88. Section 268.7 is amended by revising paragraph (a)(5) introductory 
paragraph to read as follows:


Sec.  268.7  Testing, tracking, and recordkeeping requirements for 
generators, treaters, and disposal facilities.

    (a) * * *
    (5) If a generator is managing and treating prohibited waste or 
contaminated soil in tanks, containers, or containment buildings 
regulated under 40 CFR 262.15, 262.16, and 262.17 to meet applicable 
LDR treatment standards found at Sec.  268.40, the generator must 
develop and follow a written waste analysis plan which describes the 
procedures they will carry out to comply with the treatment standards. 
(Generators treating hazardous debris under the alternative treatment 
standards of Table 1 to Sec.  268.45, however, are not subject to these 
waste analysis requirements.) The plan must be kept on site in the 
generator's records, and the following requirements must be met:
* * * * *

0
89. Section 268.50 is amended by revising paragraph (a)(1) and 
(a)(2)(i) to read as follows:


Sec.  268.50  Prohibitions on storage of restricted wastes.

    (a) * * *
    (1) A generator stores such wastes in tanks, containers, or 
containment buildings on-site solely for the purpose of the 
accumulation of such quantities of hazardous waste as necessary to 
facilitate proper recovery, treatment, or disposal and the generator 
complies with the requirements in Sec. Sec.  262.16 and 262.17 and 
parts 264 and 265 of this chapter.
    (2) * * *
    (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 1910.1200; or a chemical hazard label consistent 
with the National Fire Protection Association code 704); and
    (D) The date each period of accumulation begins.
* * * * *

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

0
90. The authority citation for part 270 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

0
91. Section 270.1 is amended by revising paragraphs (a)(3), (c)(2) 
introductory text, (c)(2)(i), and (c)(2)(iii) to read as follows:


Sec.  270.1  Purpose and scope of these regulations.

    (a) * * *
    (3) Technical regulations. The RCRA permit program has separate 
additional regulations that contain technical requirements. These 
separate regulations are used by permit issuing authorities to 
determine what requirements must be placed in permits if they are 
issued. These separate regulations are located in 40 CFR parts 264, 
266, 267, and 268.
* * * * *
    (c) * * *
    (2) Specific exclusions and exemptions. The following persons are 
among those who are not required to obtain a RCRA permit:
    (i) Generators who accumulate hazardous waste on site in compliance 
with all of the conditions for exemption provided in 40 CFR 262.14, 
262.15, 262.16, and 262.17.
* * * * *
    (iii) Persons who own or operate facilities solely for the 
treatment, storage, or disposal of hazardous waste excluded from 
regulations under this part by 40 CFR 261.4 or 262.14 (very small 
quantity generator exemption).
* * * * *


Sec.  270.42   [Amended]

0
92. Section 270.42 is amended by removing and reserving paragraph (l) 
and the entries under O.1. in the table of appendix I to Sec.  270.42.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

0
93. The authority citation for part 271 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), and 6926.


Sec.  271.10  [Amended]

0
94. Amend Sec.  271.10(c) by removing the text '' 262.34'' and adding 
in its place the text ``262.16 or 262.17''.

PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT

0
95. The authority citation for part 273 continues to read as follows:

    Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.

0
96. Section 273.8 is amended by revising the section heading and 
paragraph (a)(2) to read as follows:


Sec.  273.8  Applicability--household and very small quantity generator 
waste.

    (a) * * *
    (2) Very small quantity generator wastes that are exempt under 
Sec.  262.14 of this chapter and are also of the same type as the 
universal wastes defined at Sec.  273.9.
* * * * *

0
97. Section 273.81 is amended by revising paragraph (b) to read as 
follows:


Sec.  273.81  Factors for petitions to include other wastes under 40 
CFR part 273.

* * * * *
    (b) The waste or category of waste is not exclusive to a specific 
industry or group of industries, is commonly generated by a wide 
variety of types of establishments (including, for example, households, 
retail and commercial businesses, office complexes, very small quantity 
generators, small businesses, government organizations, as well as 
large industrial facilities);
* * * * *

PART 279--STANDARDS FOR THE MANAGEMENT OF USED OIL

0
98. The authority citation for part 279 continues to read as follows:

    Authority:  Sections 1006, 2002(a), 3001 through 3007, 3010, 
3014, and 7004 of the Solid Waste Disposal Act, as amended (42 
U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 6934, and 6974); and 
sections 101(37) and 144(c) of CERCLA (42 U.S.C. 9601(37) and 
9614(c)).

0
99. Section 279.10 is amended by revising paragraph (b)(3) to read as 
follows:

[[Page 85829]]

Sec.  279.10   Applicability.

* * * * *
    (b) * * *
    (3) Very small quantity generator hazardous waste. Mixtures of used 
oil and very small quantity generator hazardous waste regulated under 
Sec.  262.14 of this chapter are subject to regulation as used oil 
under this part.
* * * * *

[FR Doc. 2016-27429 Filed 11-25-16; 8:45 am]
 BILLING CODE 6560-50-P