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

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

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

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

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

o Also note that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 4.2.3 - Revisions for identifying listed hazardous waste

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

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

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

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

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

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

Section 4.2.4 - Revisions for identifying characteristic hazardous waste

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

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

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

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

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

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

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

Section <IP_ADDRESS> - Testing

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

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

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

Response: Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination.
Comment: A similar degree of flexibility should be continued, as is the status quo, when determining whether a waste exhibits one or more hazardous characteristics identified in subpart C of 40 C.F.R. part 261. The proposal would require generators to test the waste according to the methods set forth in subpart C of 40 C.F.R. part 261 or according to "an equivalent method approved by the Administrator under 40 C.F.R. 260.21" along with additional requirements. 80 Fed. Reg. 57,992. Imposition of these limited types of determinations is unnecessary. While testing may be appropriate in some circumstances, a generator's knowledge of the materials and process is often sufficient to make hazardous waste determinations. The proposal does not provide or describe evidence suggesting that the current system has led to unreasonable risks to human health and the environment and simply places unnecessary burdens on the industry without measurable benefits. Before imposing such burdens, EPA should further analyze the waste determination process and evaluate whether evidence demonstrates that requiring the use of testing and EPA approved methods is necessary to prevent harm. The proposal fails to do so. (0241)