Hazardous Waste Generator Improvements Rule

As Enacted ( Federal Register)

Cited authorities 30

Cited in

Federal Register, Volume 81 Issue 228 (Monday, November 28, 2016)

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

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, (oleary.jim@epa.gov) 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, (lett.kathy@epa.gov).

SUPPLEMENTARY INFORMATION:

I. Table of Contents

The information presented in this preamble is organized as follows:

I. Table of Contents

II. General Information

Does this action apply to me?
Incorporation by Reference

III. Statutory Authority

IV. What is the intent of this final rule?

V. Background
History of the Hazardous Waste Generator Program
Hazardous Waste Generator Demographics

VI. Reorganization of the Hazardous Waste Generator Regulations and Organization of the Preamble
Moving and Integrating Regulations From 40 CFR 261.5 Into 40 CFR Part 262
SQG and LQG Conditions for Exemption (40 CFR 262.16 and 262.17)
EPA Identification Number (40 CFR 262.12)
What changed since proposal?
Guidance and Implementation

VII. Detailed Discussion of Revisions to 40 CFR Part 260--Hazardous Waste Management System: General
Generator Category Definitions (40 CFR 260.10)
Generators That Generate Both Acute and Non-Acute Hazardous Waste in the Same Calendar Month (40 CFR 260.10)
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))
Introduction
What is EPA finalizing?
Major Comments

IX. Detailed Discussion of Revisions to 40 CFR Part 262--Standards Applicable to Generators of Hazardous Waste
Addition of Terms Used in This Part and Changes to Purpose, Scope and Applicability (40 CFR 262.1 and 262.10)
Waste Determinations (40 CFR 262.11)
Determining Generator Category (40 CFR 262.13)
Very Small Quantity Generator Conditions for Exemption (40 CFR 262.14)
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)
Revisions to Satellite Accumulation Area (SAA) Regulations for SQGs and LQGs (262.15)
Accumulation of Hazardous Waste by SQGs and LQGs on Drip Pads and in Containment Buildings
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))
Documentation of Inspections of Waste Accumulation Units
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)
Provision Prohibiting Generators from Disposing of Liquids in Landfills (40 CFR 262.14(b) and 262.35)
Clarification of Biennial Reporting Requirements (40 CFR 262.41, 264.75 and 265.75)
Extending Time Limit for Accumulation Under Alternative Requirements for Laboratories Owned by Eligible Academic Entities (40 CFR Part 262 Subpart K)
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
Introduction
What is EPA finalizing?
What changed since proposal?
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)
Introduction
What is EPA finalizing as proposed?
What is EPA finalizing with changes to proposed rule language?
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
What is EPA finalizing?
What changed since proposal?
Major Comments

XIII. Electronic Tools To Streamline Hazardous Waste Reporting and Recordkeeping Requirements
Waste Determination Tools
Emergency Response Executive Summary App
Recordkeeping and Reporting Tools
Analysis of Comments

XIV. Enforceability

XV. State Authorization
Applicability of Rules in Authorized States
Effect on State Authorization of Final Rule

XVI. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

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Paperwork Reduction Act (PRA)
Regulatory Flexibility Act (RFA)
Unfunded Mandates Reform Act
Executive Oder 13132: Federalism
Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

I. National Technology Transfer and Advancement Act (NTTAA)
Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
Congressional Review Act (CRA)

II. General Information
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.
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

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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
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

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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.
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

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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.
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
  
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  Regulation Previous citation New citation Comment
  
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  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.
  
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  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.
  
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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.
  
  ----------------------------------------------------------------------------------------------------------------
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.
  
  ---------------------------------------------------------------------------
  1. 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.''
  2. 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).
  3. 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.
  1. 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.''
  2. 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.
  3. 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.
  4. 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
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).
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.
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
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'' () 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\
  
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  \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.
  
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  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.
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\
  
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  \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.
  
  100 kg and 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.
  
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  \89\ November 18, 1992, 57 FR 54452.
  
  \90\ RCRA Online 11798, November 17, 1993.
  
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  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.
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)
  1. 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.
    
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    \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.
    
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    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.
  2. 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).
  3. 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)
  1. 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.
  2. 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.
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.
  
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  \92\ http://www.epa.gov/hwgenerators/where-managing-hazardous-waste-academic-laboratories-rule-effect.
  
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  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.
  
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  \93\ EPA-HQ-RCRA-2012-0121-0158.
  
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  Effect of the Reorganization: This section is not affected by the reorganization.
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
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.

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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.

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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
  
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  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
  1. 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
    
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    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.
    
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    \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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  2. 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.
  3. 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.
  4. 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.
  
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  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
  
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  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.
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\
  
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  \99\ Alyeska Pipeline Service, EPA-HQ-RCRA-2012-0121-0088
  
  \100\ Minnesota Pollution Control Agency, EPA-HQ-RCRA-2012-0121-
  
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  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
  
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  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
  
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  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.
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
  
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  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)
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.
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
  
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  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.
  1. 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.
  2. 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.
  1. 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.
  2. 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
    
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    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.
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.
  
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  \101\ Memorandum from Matt Hale, Director of EPA's Office of Solid Waste, to RCRA Division Directors, November 7, 2006, RCRA Online 14758.
  
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  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\
  
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  \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.
  
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  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
  
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  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
  
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  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
  
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  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.
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
  
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  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.
  
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  \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.
  
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5. Revisions to Applicability of Personnel Training
  
  EPA asked for comment on whether the regulations should specifically identify positions at LQGs for which
  
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  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
  
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  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.''
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. ''
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.
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.
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

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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.
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.
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.
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.

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XV. State Authorization
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.

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\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.

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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.
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

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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.
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.
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.
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

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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.
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.
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.
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.
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.
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.
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

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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
  1. Adding in alphabetical order the definitions of ``Acute hazardous waste'', ``Central accumulation area'', ``Large quantity generator'', and ``Non-acute hazardous waste'';
    
    0
  2. Removing the definition for ``Performance Track member facility'';
    
    0
  3. Revising the definition of ``Small quantity generator'';
    
    0
  4. Revising the heading of the definition ``Treatability Study'' to read ``Treatability study'';
    
    0
  5. Revising the heading of the definition ``Universal Waste Handler'' to read ``Universal waste handler'';
    
    0
  6. Revising the heading of the definition ``Universal Waste Transporter'' to read ``Universal waste transporter''; and
    
    0
  7. 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
  1. Revising paragraphs (a) and (b);
    
    0
  2. Removing and reserving paragraph (c);
    
    0
  3. Revising paragraph (d);
    
    0
  4. Revising paragraph (g);
    
    0
  5. Removing and reserving paragraph (j); and
    
    0
  6. 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.
  
  100 kg and

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Subscribers are able to see the revised versions of legislation with amendments.

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Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Hazardous Waste Generator Improvements Rule

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users