*Comment: With respect to LQGs, EPA proposes to consolidate LQG closure regulations at § 262.17(a)(8) and add new closure notification provisions. TWC is concerned that this consolidation would impose many new, onerous closure measures on LQGs who cannot clean close. LQGs store a significantly smaller amount of hazardous waste than treatment, storage, and disposal facilities and therefore should not be subject to the same rigorous closure regulations. (0164)
Response: The Agency disagrees with the commenter. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.
Comment: Topic: Proposed regulation at §262.17(a)(8)  --  Consolidation of LQG Closure Regulations.

Comment: SD agrees with the proposed clarification to consolidate LQG closure requirements in one place in the CFR. Although we like the idea of requiring LQGs to notify the state/EPA that they are closing a unit or operation, by putting this requirement in place it begs the question that should the LQG fail to notify and a cleanup is required, should financial assurance be required up front? (0195)
Response: Financial assurance will be required should a LQG fail to clean close and must close as a landfill. While in operation, we believe other types of insurance will address spills and releases that require cleanup beyond the control of the generator.
Comment: One State believes that EPA's proposed consolidation of closure regulations further clarifies the responsibilities of LQGs. The State does not believe, however, that there would be a benefit for the State or facility if a SQG or LQG were to notify the State either before or after the closure of one of its waste accumulation units. The facility, if it has done its due diligence, will have managed and disposed of its hazardous wastes according to all regulatory standards. The State feels if the facility submits paperwork prior to closure, it does provide the State with the ability to inspect the facility as it is going through the closure process. However, areas of non-compliance should not be found unless the facility already had pre-existing issues. (0217)
Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule.
We agree with the commenter thatif the facility has done its due diligence, it will already have managed and disposed of its hazardous wastes according to all regulatory standards and closure requirements should not be a problem for them.

Comment: EPA proposes to consolidate its closure regulations for units used by LQGs in a new 40 CFR §262.17(a)(8). Industrial Generators support consolidation and simplification of these requirements into a single place in the regulations. [Footnote 8: As noted in Comment 8, however, these standards should not be identified as Conditions for Exemption. These standards have nothing to do with delineating between VSQGs, SQGs, LQGs and TSDFs.] The concept in proposed §262.17(a)(8)(ii)(A)(1) that closure should be undertaken "to the extent necessary to protect human health and the environment," however, should be moved up to subparagraph (A). That way, this important risk-based concept would more clearly apply to all of the requirements in §262.17(a)(8)(ii)(A), not just to its subparagraph (1). For nearly 20 years, EPA has recognized that decontamination during closure is to be done to risk-based standards and not to non-detect or background levels. See Memo from E. Cotsworth, "Risk Based Clean Closure" (March 16, 1998). Moving to subparagraph (A) this concept that closure decontamination should be done "as necessary to protect human health and environment" will help to clarify that the decontamination work done under subparagraphs (A)(1), (A)(2) and (A)(4) are all to be risk-based. (0219)

Response: The Agency appreciates the above suggestion about moving the phrase at 40 CFR 262.17(a)(8)(ii)(A)(1) that closure should be undertaken "to the extent necessary to protect human health and the environment," subparagraph (A). However, the Agency believes the concept is just as important and applicable where it is proposed to be located.
Comment: DC supports consolidating the regulations for readability.

It would be helpful if the regulations offered information explaining how to determine if any of the subsequent sections apply. In particular, in DC most Generators store their waste in containers. If such a facility has never had a significant spill, how should they address the section on managing contaminated soil (as they presumably have had none)?

Most of DC's LQGs are universities, hospitals, and research facilities. These facilities are usually LQG for generation of Acute Hazardous Waste, and generate and store comparatively small quantities of Hazardous Waste. Their waste is stored exclusively in containers which are removed (per regulation) every 90 days or less. For these facilities, the strengthened closure regulations seem excessive. DC understands that LQG production facilities generate much larger quantities of Hazardous Waste and strengthened closure requirements might be appropriate. DC suggests that Generator status coupled with industry type might be a more appropriate trigger for additional regulation, rather than Generator status alone. (0248)
Response: Regarding the first comment above, if a facility has never had a significant spill, then contaminated soils should not be an issue when completing their closure performance standards. Regarding the second comment above; i.e., accumulating comparatively small quantities of acute hazardous waste that results in the facility being an LQG, this comment is beyond the scope of this regulation.
Comment: The current regulations explicitly provide that generators that meet the 90 day accumulation requirements are "exempt from all the requirements in subparts G and H of 40 CFR part 265, except for §§ 265.111 and 265.114." 40 CFR § 262.34(a). In the proposal, however, EPA has consolidated certain LQG provisions, and the text quoted above has been omitted. TWC is concerned that the omission of this explicit exemption language will cause confusion and could lead to the inappropriate imposition of onerous closure measures. As recognized in the current regulations, these "90-day accumulation" generators store a significantly smaller amount of hazardous waste than treatment, storage, and disposal facilities and therefore should not be subject to the same rigorous closure regulations.

We understand that EPA's intent in the proposal was to reorganize, clarify and consolidate the closure requirements for drip pads, rather than to impose new closure requirements on drip pad operators. However, in the process of consolidation/reorganization, certain changes were made that could be misinterpreted as imposing new closure requirements. TWC therefore strongly believes that the final rule should include specific language making clear that generators that meet the 90 day accumulation requirements are not subject to he closure requirements in subparts G and H. TWC proposes the following changes in the final rule to clarify this issue:
-Add the following language to section 262.17(a)(8):
"In addition, a generator that complies with 262.17(a)(1), 262.17(a)(2), 262.17(a)(3), and/or 262.17(a)(4) is exempt from all the requirements in subparts G and H of 40 CFR part 265." [Footnote 1:
-Add the following language to section 262.16(b)(4)(iii):
"In addition, such a generator is exempt from all the requirements in subparts G and H of 40 CFR part 265."
Revising the provisions in the manner provided above will clarify that the current exemption remains in place. (TEMP-003-1)

Response: We have modified the closure regulations to be responsive to the commenter's concerns discussed above.

Section 4.6.2 - LQGs accumulating in tanks

Comment: NJDEP supports closure of central accumulation areas using the same type of closure regulations that apply for tanks, drip pads and containment buildings. (0108)
Response: The Agency appreciates the support of NJDEP regarding this provision.
Comment: 262.17(a)(8) Closure conditions - notify 30 days prior to closure of a unit or closing the site
o This is excessive for container storage - especially as "unit" is not described with respect to container storage - does this include every satellite container? Every satellite area that stored more than 55 gallons of hazardous waste? Even if only central accumulation areas are included, this appears to be excessive, as facilities can have multiple central areas.
o How are these notifications to be processed, when the facility's generator status does not change? Must the notification be accompanied by an updated contingency plan? Is a tank a unit, or the entire tank system? The 265.197 closure requirements apply to the entire tank system, not to the individual tanks and ancillary equipment within the system. (0214)
Response: The commenter had several comments that we address sequentially as follows:
 Closure requirements will not be applicable to SAAs.
 LQGs must address all of their CAAs at closure  -  either when closing a unit or the facility. .
 The LQG has responsibility for submitting closure notifications for either closure of a CAA or facility. The LQG can also opt into placing a notice in their operating records that they are closing a CAA.
 The contingency plan will have to be updated if it is opening a new CAA.
 Tank closure requirements apply to the entire tank system, consistent with 40 CFR 265.197.
Comment: Such measuring and recordkeeping is not needed to comply with less than the 90-day or 180-day rules for LQGs and SQGs. Those rules require that an accumulation tank for a large quantity generator be emptied at least once every 90 days for an LQG and at least once every 180 days for an SQG. Those rules can be met with records showing that an LQG tank is emptied every 90 days and an SQG tank is emptied every 180 days. Plants already have, or can readily create, records showing that a hazardous waste tank was emptied on a particular date. For example, it is common to have records that a transporter pumped out a hazardous waste tank and transported the waste off-site on a particular date, and that the same tank was again pumped out on a subsequent date. When viewed together, those two records can conclusively show that the tank was emptied within 90 days for an LQG or 180 days for an SQG. So long as it is shown that the tank was emptied every 90 or 180 days, it really does not matter when specific volumes of the hazardous waste were conveyed into the tank; the volume certainly was not residing in the tank for more than 90 or 180 days if shipping records show that those tanks were emptied within those timeframes. (0219)

Response: The Agency agrees that this is a method that can be used to show the tank was emptied every 90 or 180 days.

Comment: Under proposed 40 CFR §262.17(a)(8)(ii))(A)(4), an LQG that cannot achieve clean closure for a container storage area would have to manage that area as a landfill. This would mean that, among other things, the LQG would be required to: (1) install groundwater monitoring wells upgradient and downgradient from the container area; (2) monitor the wells 30 years or longer during a post-closure care groundwater monitoring program; (3) obtain a post-closure permit to conduct the post-closure groundwater monitoring; (4) by virtue of the permit, conduct solid waste management unit (SWMU) facility-wide corrective action; and (5) maintain financial assurance for the post closure care.

When EPA adopted its initial regulations, it properly distinguished between generators that store small quantities of hazardous waste in containers and generators that store or treat hazardous waste in much larger quantities in tanks, landfills, surface impoundments, incinerators, etc. LQGs that store hazardous waste in containers should not be subjected to the most onerous aspects of RCRA, such as post-closure groundwater monitoring, site-wide corrective action, and RCRA permitting, especially through this rulemaking, which purports to merely consolidate and clarify existing regulations. This proposal is a major departure from existing regulations. Imposing these requirements on generators would go well beyond 42 U.S.C. §6922, wherein Congress identified only six categories of regulations that EPA should promulgate for generators. None of those six include closure, or any of the other TSDF programs that would be triggered. Thus, these closure regulations should not be adopted without full consideration of the legal and practical consequences, and a record that will support the significant consequences of this rule change. [Footnote 9: As noted in Comment 8, these standards should not be identified as Conditions for Exemption. These standards have nothing to do with delineating between VSQGs, SQGs, LQGs and TSDFs.] (0219).

Response: The Agency disagrees with the above comments. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.

Regarding the comment that this proposal is a major departure from existing regulations and imposing these requirements on generators would go well beyond 42 U.S.C. §6922, wherein Congress identified only six categories of regulations that EPA should promulgate for generators, the Agency again disagrees. EPA has full authority to promulgate this regulation concerning closure requirements for LQGs accumulating hazardous waste in containers.

This regulation relates to EPA's authority to promulgate generator regulations on the use of appropriate containers, which is one of the six categories of regulations in RCRA § 3002(a)(3) (42 U.S.C. §6922(a)(3)).   Even if this regulation did not come under this category or any of the other listed categories, EPA still has broad authority under RCRA §3002 to promulgate regulations relating to generators of hazardous waste that "may be necessary to protect human health and the environment." This broad authority includes Congressional mandates to promulgate regulations relating to the listed categories of regulations, but are not limited to these categories. It can include other generator regulations that EPA considers necessary to protect human health and the environment.

In addition, RCRA §2002 (42 U.S.C. §6912) provides EPA broad authority to promulgate regulations that are necessary to carry out EPA functions under RCRA. This is broad authority in which EPA has discretion to determine what is necessary to implement RCRA.

EPA has explained in the preamble to this rule why this regulation is necessary for environmental protection.

Section 4.6.3 - Notification of closure by LQGs

The Agency has prepared the following response to the following commenters because their comments were very similar, if not the same. (0078, 0086, 0089, 0092, 0106, 0164, 0182, 0189, 0192, 0201, 0205, 0219, 0232, 0225, 0240, and 0262)

Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule.

Similarly, with respect to requiring notification both before and after closure of the facility, the agency believes that such notification allows EPA and the states to conduct an inspection, if appropriate, to either monitor the closure, or confirm that closure was properly completed.

Comment: 8. EPA's requirement to provide notification prior to and following closure of a waste accumulation unit is unnecessary.

EPA is requiring that LQGs notify EPA or an authorized state at least 30 days prior to closing a hazardous waste accumulation unit as well as not later than 90 days following closure (proposed 40 CFR 262.17(a)(8)). EPA states that without the knowledge it would gain from this notification, "regulatory authorities do not know whether generators have abandoned the site, leaving behind hazardous waste that could subsequently result in a release to the environment and adverse impacts to human, health, and the environment." [Footnote 7: 80 Federal Register 57955, September 25, 2015.] API is not convinced this notification will achieve EPA's objective. A facility that would abandon a site and leave hazardous waste behind is unlikely to provide the required notification in the first place. Similarly, those that will provide the notification are likely the same facilities that would have closed properly without the notification requirement. Furthermore, other mechanisms are already in place that ensure hazardous waste is removed, including requirements to notify local fire departments as well as the due diligence that typically occurs when industrial property changes hands. (0077)
Response: We agree with the commenter, but only to an extent. Yes we believe facilities that provide notification in most cases will be those who would properly close anyway because they comply with the applicable regulations. As for those not notifying, they will be of two types: (1) those that are not aware of this requirement but will comply with the applicable regulations once notified; and (2) those that would abandon their facility. For those that abandon their site, they will now be on record as being in violation of RCRA closure regulations and they will be responsible for the costs of addressing any closure performance standards.
But the biggest problem we see with the above comment is if we do not require notification, there is no accountability built into the system/regulatory framework for LQGs to complete the necessary closure performance standards and notify that they have done so. Without such notification, how are EPA and the states to know otherwise?  This notification will provide EPA with important notification about completion of closure, and will also allow us to monitor and inspect the facility to verify proper closure if necessary.
Comment: - 262.17(a)(8)(i)(A): Requiring prior notification of closure of 90-day accumulation areas is burdensome and not required under the existing regulations. It also can result in the delay of closure of these areas; usually, closure would ensue immediately after the need for the area ceases. A delay in closure would not seem to be prudent either operationally or environmentally. 90-day accumulation areas are frequently established and closed out; not all 90-day accumulation is of the nature of a centralized accumulation area. For instance, 90-day accumulation may be conducted temporarily as the result of a spill cleanup or a treatment-by-generator activity. These types of activities should not be discouraged through additional regulatory burdens; EPA's desire to manage 90-day accumulation areas as though they were commercial storage facilities seems excessive. We recommend EPA not adopt this requirement. (0078)

Response: See response at beginning of this section.
Comment: VIII.G. Generator closure regulations. HDOH supports the addition of closure notification requirements for LQGs, as proposed. (0082)
Response: The Agency appreciates the support of this commenter.
Comment: Colorado is concerned regarding enforceability of stronger closure requirements for LQGs storing hazardous waste in containers, because facilities stop generating hazardous waste, or close container storage areas, or go out of business frequently and for many reasons. Often times, the regulatory agency does not know about this closure for an extended time afterwards.

Response: Regarding the first comment associated with facilities stopping waste generation, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule.

Regarding the second comment about facilities going out of business, the biggest problem we see  is if we do not require notification, there will be no accountability built into the system/regulatory framework for LQGs to complete the necessary closure performance standards and notify that they have done so. Without such notification, how are EPA and the states to know otherwise?  This notification will provide EPA with important notification about completion of closure, and will also allow us to monitor and inspect the facility to verify proper closure if necessary.
Comment: The Oak Ridge National Laboratory (ORNL) requests EPA to reconsider the requirements proposed under 40 CFR 262.17(a)(8)(i) Notification for generators to "(A) Notify EPA no later than 30 days prior to closing a unit that accumulates hazardous waste at the site or prior to closing the site." and "(B) Notify EPA within 90 days after closure of a unit that accumulates hazardous waste at the site or prior to closing the site that it has either clean closed (e.g., complied with the applicable closure performance stands of 262.17(a)(8)(ii) or, if it cannot clean close, notify as a landfill under 265.310 of this chapter." These requirements are perceived to be overly burdensome and provide little benefit for large, diverse, operating facilities which have routine RCRA regulatory oversight. In addition to routine regulatory oversight, ORNL has an existing oversight agreement with regulators as part of a large federal National Priorities Listed site.

Over the past 5 years, ORNL on average has opened and closed fifteen 90-day accumulation areas (DAAs) in a calendar year. If the proposed notifications are promulgated as written, these actions would result on average in approximately 30 additional notifications to regulatory agencies within a calendar year with little benefit.

As an alternative to the proposed notifications, ORNL proposes that EPA consider one of the following actions: 1) the generator maintains documentation of area closures which would be retained for a period of 3 years. Records would be available for review by regulators during routine RCRA regulatory oversight. 2) Notifications would be documented and submitted as a single submission with the biennial (or annual) report of hazardous waste activities.

If the proposed notification regulations are promulgated as written, ORNL is asking for clarification on the format required and whether any fees would be imposed for processing of the submittals. (0086)

Response: See response at beginning of this section.

Comment: The EPA is recommending a requirement that generators must notify the appropriate agency at least 30 days in advance of the closure of a central accumulation area. I recommend against making this change, as it is not needed. If an accumulation area is closed, it will either be located to another part of the site, or the site would have a change where they do not generate waste. If it is relocated on-site, existing regulations on contingency planning should capture concerns. If the site is eliminated, it would mean a change in the generator status, which requires EPA notification. (0089)

Response: See response at beginning of this section.

Comment: The current system in use at SRS documents the opening and the closure of 90-day accumulation areas and insures any residues left in an area after closure are properly addressed. This system has worked for approximately twenty-five years. To date only one 90-day accumulation area has required clean-up. SRNS sees no added value in notifying the state 30 days prior to closing a 90-day accumulation area using form 8700-12. In the case of a short term use area, the notice would have to be written shortly after establishing the area for use. At SRS the 8700-12 form has to be signed by the DOE site manager, which means all levels of management up to that level must sign-off on the form. This process usually takes several weeks. There is a concern that the waste generators who open a 90-day accumulation area may see use of the 8700-12 form as onerous, and rather than close a 90-day area that is no longer needed, keep it open by saying it "may be used in the future." This could result in well over the average number of 90-day areas at SRS in the past several years. Eventual closure of them would probably require sampling to satisfy site management and state inspectors, resulting in higher closure costs.

SRNS agrees with EPA's proposal to document closure of90-day accumulation areas and with EPA's proposal to document clean closure or the failure of a clean closure. However, SRNS believes that maintaining records at the facility is sufficient, rather than notification sent to the state. If notification is to be made, use of a means other than the 8700-12 form is preferred. (0092)
Response: See response at beginning of this section.

Comment: - Closure requirements should only apply to LQGs that regularly operate in that category, and these requirements should not be extended to containers used to accumulate hazardous waste at LQGs; (0093)

Response: The Agency agrees that the requirements should apply to LQGs that regularly operate in that category, but there may be situations where this may not always work. For example, what about facilities that regularly operate as LQGs but drop down to an SQG status a couple of months before closing their facility? What about the situation where a facility vacillated between SQG and LQG over the course of a long period of time? For these reasons, EPA and the states will make a case-by-case determination on whether closure performance standards are applicable to the facility based on the facts of the situation.

Comment: If promulgated, this requirement would make a significant demand on resources of US EPA or authorized state involved in closure of these LQG units.

The notifications proposed in this rule would generate thousands of notices per year and put additional strain on already scarce US EPA and authorized states' resources.
For these reasons, we strongly recommend that US EPA not adopt the proposed closure notice regulations. Instead, we suggest that US EPA gather additional data on this matter from entities such as LQGs and authorized states before implementing any new closure notification regulations.

Given the practice described above of LQGs using temporary <90-day container accumulation areas during times of major maintenance activities, LQGs will not be able to consistently give 30-day closure notice simply because these temporary waste areas are commonly operational for a duration shorter than 30 days.

US EPA should not promulgate a regulation that will put LQGs in compliance jeopardy simply because a waste accumulation is needed for less than 30 days.

Closures can be lengthy and time-consuming. Generators are not likely to undertake this costly activity without prior concurrence from US EPA or the appropriate state agency. We doubt that US EPA and state agencies are adequately prepared and staffed to handle the concurrence requests and reviews that will be required before a generator is comfortable giving closure notice.

We request that US EPA not promulgate this measure, but instead reconsider the basis for such a rule. (0106)
Response: See response at beginning of this section.

Comment: NJDEP supports requiring LQGs to notify at least 30 days prior to closing the generator's site or when the generator closes an accumulation unit. (0108)

Response: The Agency appreciates the support of this commenter.
Comment: The proposed rule would also require LQGs to notify EPA or the authorized state at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste. TDEC is supportive of this requirement, but suggests that EPA consider circumstances in which it may not be feasible for a generator to notify 30 days in advance due to unforeseen circumstances. Additional language, such as notification within 2 working days of decision the closure is needed, should be developed for application in instances where closure was not anticipated. (0116)

Response: The commenter raises an interesting point. There may be situations where it is not feasible for the generator to notify 30 days in advance due to unforeseen circumstances. The Agency, in response to comments, has modified the regulations to provide sufficient flexibility to address this scenario.
Comment:  FR Page: 57954 -57955
Citation: 40 CFR 262.17(a)(8)
40 CFR 262.34
Topic: Generator Closure Regulations (VIII.G.2.)

Comment: BNI-WTP is not in favor of the proposed change to notify regulator when open or close waste management units. This will be too burdensome for generators and negate flexibility by adding unneeded administrative requirement, especially for 90-day accumulation areas. As long as the regulatory process is adhered to for closing (i.e., clean closure) a 90-day accumulation area, and the closure is documented appropriately, notifying the regulator would be an extra burden for both parties. Possibly would work for other waste management units like drip pads or containment buildings.

WRPS requests the addition of text to this proposed change to specify that accumulation areas located within TSD facilities may be closed with their associated TSD units. Closing an accumulation area prior to closure of its TSD unit would result in redundant activity. The generator should be allowed to decide to incorporate closure of the accumulation area with the TSD unit to meet closure performance standards.

WRPS requests the addition of text to this proposed change to specify whether the change would preclude leaving an accumulation area empty for a period of time without closure. As proposed, the regulations could be interpreted to require that the accumulation area be closed once it becomes empty, which, if the area were to later be reopened, would require multiple closures.
WRPS requests clarification on this proposed change to identify whether such a closure of a less-than-90-day accumulation area located at a TSD unit would be considered partial closure of the TSD unit.

FR Page: 57954 -57955
Citation: 40 CFR 262.17(a)(8)
40 CFR 262.34
Topic: Generator Closure Regulations (VIII.G.3.)
Comment: WRPS is not in favor of this proposed change as it would require time and money expenditure to implement for each required closure. (0123)
Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs also will not be affected by this rule. We believe this change will address the commenter's concerns.

Regarding the commenter's request for the addition of text to specify that accumulation areas located within TSD facilities may be closed with their associated TSD units, the Agency believes this is a case-by-case situation that can be addressed under modifications to the TSD facility's permit, or when the TSD facility's permit is up for renewal.

Comment:  NDEQ also supports the third closure proposal to require LQG notification upon closure of their hazardous waste accumulation units. NDEQ agrees with EPA that, at present, regulatory authorities have no means of knowing whether a generator has properly closed or simply abandoned the site, leaving behind hazardous waste that could release to the environment. Though Nebraska's LQG universe is comparatively small and easily monitored by national standards, the notification is consistent with the broader regulatory program for LQGs and a true "cradle to grave" hazardous waste management system. To reduce the paperwork burden and allow states to focus on the results of closure, NDEQ supports just a single notification no later than 90 days after closure. (0145)

Response: The Agency appreciates the support of NDEQ regarding this provision. However, the Agency believes when a facility is closing, the LQG should give prior notice to EPA or the authorized state so that they can either plan to visit the facility prior to closing to determine what must be addressed, if anything, or after closure of the facility, to determine if they have properly/clean closed.

Comment: Furthermore, under the proposal, LQGs would be required to notify EPA no later than 30 days prior to closing a hazardous waste accumulation unit. § 262.17(a)(8)(i)(A). Within 90 days after closure, the LQG would be required to notify EPA that it has either clean closed or, if it cannot clean close, notify as a landfill. §262.17(a)(8)(i)(B). TWC believes that closure notification is unnecessary and burdensome. If, however, EPA believes that some form of notification is required, TWC urges EPA to adopt only the 90-day post-closure notification provision.

Notification 30 days prior to closing a hazardous waste accumulation unit or site does not provide any measurable benefits for EPA or state agencies, and is not needed to incentivize generators to close units or sites properly. See 80 Fed. Reg. 57,955, col. 3. Requiring post-closure notification sufficiently creates the stated objectives without adding paperwork. (0164)

Response: See response at beginning of this section.

Comment: 4. Closure Notification for Generators Requires LQGs to notify EPA or their authorized state when they plan to close either a hazardous waste accumulation unit or their generator site.
DTSC supports the amendments to 40 CFR 262.17 regarding pre- and post- closure notifications, consolidated and strengthened closure standards. (0174)

Response: The Agency appreciates the support of this commenter.
Comment: CT DEEP also supports EPA's proposal to require LQGs to provide notification of closure of a hazardous waste storage area at least 30 days prior to beginning closure, and to provide notification within 90 days after completing closure. CT DEEP notes that such notification would allow CT DEEP to conduct an inspection, if appropriate, to either monitor the closure, or confirm that closure was properly completed. CT DEEP also notes that it has drafted amendments to Connecticut's hazardous waste regulations that are very similar to this proposal by EPA. (0178)

Response: The Agency appreciates the support of this commenter.
Comment: DEQ does not believe, however, that there would be a benefit for the state or facility if an SQG or LQG were to notify the state either before or after the closure of one of its waste accumulation units. The facility, if it has done its due diligence, will have managed and disposed of its hazardous wastes according to all regulatory standards. DEQ instead believes that facilities should be required to notify in the event that the facility closes, which would by definition include closure of waste accumulation units. (0182)

Response: See response at beginning of this section.

Comment: 11. FR Section VIII.G.3- Notification by LQGs Upon Closure of Their Hazardous Waste Accumulation Units

Comment- Although Idaho DEQ does agree that an LQG closing a site should notify using the form since that amounts to a site inactivation and has impacts on a state's numbers for reporting and inspection purposes, Idaho DEQ has concerns about the proposal for LQGs closing an accumulation unit to notify using the Site ID form. Since LQG accumulation units are not currently specified on the Site ID form and the level of detail and information wanted would unduly expand the length of the Site ID form unnecessarily, the Idaho DEQ suggests that instead of using the Site ID form for notification of an accumulation unit closing, EPA identify in the rule what information would be needed and allow the sites to submit a letter capturing all of the pertinent information. Idaho DEQ believes notifications should be submitted prior to closure to afford a better opportunity to ensure all applicable standards are met. (0189)

Response: See response at beginning of this section.

Comment: We also question the need to notify EPA before and after closure. Surely overtaxed EPA regional staff have more pressing concerns. It would be reasonable for EPA to require notification if a generator is proposing to close a storage area with some residual contamination. (0192)

Response: See response at beginning of this section.

Comment: Requiring LQGs to notify 30 days prior to closure creates unnecessary burdens on the generator. Unlike tanks, drip pads, and containment buildings, where dismantling of equipment could pose risk to the environment, closure of a central accumulation area where hazardous waste is accumulated in containers requires only removal and transpot1 of the containers themselves. Requiring prior notification would delay closure of these areas. In addition, imposing the same types of closure requirements that are applicable to tanks, drip pads, and containment buildings, to areas storing containers is overly burdensome. For example, LQGs storing hazardous waste in containers will be required to have a professional engineer certify closure, perform post-closure care, and could be subject to the financial assurance requirements. Additionally, the requirement is unclear as to whether this closure certification requirement would apply to Satellite Accumulation Areas ("SAAs"). (0201)

Response: See response at beginning of this section.

Comment: Additionally, notification to EPA of planned closure activities both before closure and after closure is complete are proposed. The requirement to notify before and after places an additional and unnecessary burden upon the generator and provides no environmental benefit. Storage areas may require closure and/or movement to another in-plant location, as a result of various site activities, such as new construction, internal procedure requirements and standards, changes in ownership, etc., that are unrelated and immaterial to the storage of hazardous waste in containers. (0205)

Response: See response at beginning of this section.

Comment: EPA is proposing to require a LQG to notify EPA or the authorized State using EPA Form 8700-12 at least 30 days prior to closing the generators site or when the generator closes a unit accumulating hazardous waste. One State noted Form 8700-12 does not require the LQG to notify of the types of units being used to accumulate hazardous waste, therefore there is no place to mark on the form that the units are closed. Does EPA intend to modify Form 8700-12 as well as RCRAInfo, the national database in which all of the data from Form 8700-12 is entered?

The proposed rule would also require LQGs to notify EPA or the authorized State at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste. One State is supportive of this requirement, but suggests that EPA consider circumstances in which it may not be feasible for a generator to notify 30 days in advance due to unforeseen circumstances. Additional language, such as notification within two (2) working days of decision the closure is needed, should be developed for application in instances where closure was not anticipated. (0217)
Response: Regarding the first comment, form 8700-12 will have to be modified to address closure notifications. Regarding the second comment, there may be situations where it is not feasible for the generator to notify 30 days in advance due to unforeseen circumstances. The Agency, in response to comments, has modified the regulations to provide sufficient flexibility to address this scenario.
Comment: EPA should not require generators to notify of closure. (See Comment #30).

EPA proposes to require LQGs to notify EPA no later than 30 days prior to closing any unit that is used to accumulate hazardous waste, and within 90 days after closure of the unit. [Footnote 10: As noted in Comment 8, these standards should not be identified as Conditions for Exemption. These standards have nothing to do with delineating between VSQGs, SQGs, LQGs and TSDFs.] Although notification of closure of generator accumulation unit sounds simple, it would have widespread implications. [Footnote 11: We assume that this notification requirement would not apply to satellite accumulation areas since they are not subject to a closure requirement. EPA should confirm this in the final rule.]

Less-than ninety-day accumulation occurs not only in well-defined tanks and at a central container storage area, but there are many other areas on a plant site where temporary less-than ninety-day accumulation occurs for short periods of time. Plants routinely use less-than ninety-day hazardous waste container accumulation areas for use by contractors during maintenance activities. Examples include lead paint abatement, sandblasting of equipment and tanks so that repairs can be made, the application of industrial-strength coatings, the cleanout of process equipment and raw material and product tanks prior to repair. Short-term less-than ninety-day accumulation areas are also commonly used in R&D projects. Most of these short-term less-than ninety-day accumulation projects occur within buildings where there is full containment, or outside on concrete or asphalt pads at or near plant operations that include secondary containment and/or drainage and collection systems to capture any releases. Thus, although the likelihood of a release during these short term projects is very minimal, to the extent a release occurs, it will typically be contained. Moreover, RCRA-trained personnel will be around the hazardous waste accumulation activity when it is occurring. Further, any release into the environment of more than 100 pounds of hazardous waste would require RQ reporting under CERCLA, and any release may also trigger action under the site's contingency plan. Thus, it is very unlikely that there will be a release from these short-term less-than ninety-day activities, and if there is one, it will be promptly addressed by on-site personnel and be contained.

In addition to these short-term accumulation areas associated with plant operations, short-term less-than ninety-day accumulation areas are created in connection with RCRA corrective action, closure, plant construction and other on-site projects which might result in the excavation of contaminated soil or debris. Typically near the area of excavation, a less-than ninety-day area will be created to place excavated contaminated soil, gravel, asphalt, concrete and debris into roll-off boxes, dump trucks or smaller containers. These less-than ninety-day areas are almost always within the area of contamination (AOC), and sometimes within the area of a previously-defined solid waste management unit (SWMU) that is subject to corrective action or a hazardous waste management unit (HWMU) that is otherwise subject to closure. When that less-than ninety-day accumulation area ceases to be used, it would not be necessary to give notice that it will undergo closure because the whole area is undergoing closure or some other remedial project. Nor would it be necessary to separately undertake remediation at less-than ninety-day area in most cases. The overall remediation will already be under the oversight of plant personnel and in many cases the agency pursuant to order requirements or other regulatory programs. This is why EPA has long recognized that accumulation of hazardous waste during remediation within an existing AOC is not itself a new accumulation unit and would not require a permit or closure. See "Management of Remediation Waste Under RCRA," EPA 530-F-98-026, p. 3 (Oct. 1998).

We estimate that at a typical LQG, there would on average be approximately three of these short-term discrete less-than ninety-day accumulation areas created each year for the type of plant operations or remediation related projects described above. Based on the latest 2011 data from the National Biennial RCRA Hazardous Waste Report, there were 14,262 LQGs in the United States. If each of these LQGs has to submit a closure notification for these temporary less-than ninety-day areas, over 40,000 notifications a year would have to be created and submitted by the LQGs and received by EPA or authorized states each year. Even if only half of the LQGs create an average three short-term less-than ninety-day areas, that is still 20,000 notifications. The RIA to this proposed rule did not include a calculation of the regulatory burden, much less the agency resources, that would be required by this notification requirement.

Regarding the 30 day prior notice requirement, in many cases, it is not feasible to give notice 30 days prior to closing these temporary less-than ninety-day units. These temporary less-than ninety-day accumulation areas are created for specific project purposes. In most cases, the projects will last a few days or a few weeks. It is not practical for the project personnel, especially third-party contractors who often do these projects, to give the agency notice and wait around for the thirty days to expire before they begin the closure activities of removing the hazardous waste and contaminated soil and debris. Often these projects occur in tight spaces where the activity interferes with ongoing operations and may even require shutdown of certain operations. Many of the projects cannot tolerate a 30 day prior notice requirement because that will mean extended interruption of plant operations.

Industrial Generators are also concerned that the notification will result in agency officials directing closure operations in a manner that leads to unnecessary sampling, extended delays and excessive remediation with ill-defined endpoints. Industrial Generators understand that while they are conducting these less than ninety-day accumulation activities, if releases occur that could impact the environment, such as into underlying soil, they are responsible for recovering the released material and removing any impacted soil, and they will promptly do that. But such releases are rare, and because of the prompt response, do not require extensive remediation. In almost all cases the accumulation occurs in tanks or containers that are kept closed when not in use, personnel are around when hazardous waste is being added or removed from the tanks or containers, and there are no releases into the environment.

Nonetheless, inspectors might take the position that the site owner must prove the negative -- that there has been no release into the nearby soil. To prove this, the inspector may require samples to be taken, which often means drilling through secondary containment that will affect the future integrity of those structures. The unnecessary additional costs and delays associated with sampling, awaiting results, evaluating the results against various risk-based standards, and reporting to the Agency will make what was supposed to be just a short-term less-than ninety-day accumulation effort associated with a specific plant project, like a tank clean out, into a much bigger, longer and complex project.

For all the foregoing reasons, EPA should not require in a final rule that notification be given by LQGs of closure of less-than ninety-day accumulation areas. (0219)

Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: Although TCCI member companies object to the improper management of containers that are stored on the ground, the proposed notification and documentation/ certification of closure is an over-reaction when applied to all waste management units.

For example, current regulations concerning accumulation of hazardous waste in tanks require secondary containment and reporting of any release to the environment (air, ground or water) in excess of one pound from any portion of the tank system. These provisions prevent the situations described in the preamble and provide the agency to respond when an event occurs and not years later at closure.

In addition, TCCI reminds EPA that containers also include tank trucks which are managed almost without exception on concrete or asphalt to provide support for the containers. A roll-off is also a container that manages bulk solids representing little opportunity for environmental contamination. In addition, accumulation in such units is temporary as demiurge costs discourage long term management in these containers. These types of containers are frequently used for short term accumulation as when a facility has a shutdown or a change in process. Such units may be onsite for less than 2 weeks and are gone. The trailer pads where they sat are no longer 90 day areas and notification of closure would have to begin before the unit was placed in service. Such activities can also result in additional small container accumulation requirements. Again, after 90 days they must be removed and the area where they were temporarily accumulated would require agency notification prior to closure and review of the final closure notification.

In addition, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) requires immediate reporting of all releases of hazardous waste to the environment of more than 100 lbs or less for listed hazardous wastes. Such required notifications under CERCLA can also alert RCRA regulators to the improper management of hazardous waste at a facility.

To avoid unnecessary paperwork, TCCI suggests that the closure notifications apply only to accumulation units without secondary containment or that have the potential to release constituents to the ground or surface waters as described in the preamble. (0225)
Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: 80 FR 57955, column 2 (VIII., G., 3. & 4.)
Notification by LQGs Upon Closure of their Hazardous Waste Accumulation Units
The MPCA does not support the proposed requirement that LQGs notify EPA or their authorized state prior to closure of a hazardous waste accumulation unit. The MPCA can discern no real environmental benefit to being notified a full month prior to an LQG ceasing use of a hazardous waste storage area or unit. Since the site could and likely nearly almost always would continue to use the unit until it actually needs to be closed, an inspector visiting the site as a result of the closure notice would see nothing different than the unit in normal use, which would gain no benefit above a routine hazardous waste compliance inspection. In addition, since many LQGs daily place hazardous waste containers in and out of use, the proposal is realistically unfeasible, since there is no difference whatsoever between taking a hazardous waste container out of use temporarily and permanently. Thus, generators would have no way to determine if they were in compliance or in violation of this proposed requirement. Finally, the MPCA believes that the very large number of `pre-closure' notifications submitted by generators to EPA or authorized states would require significant amounts of regulator resources and time to receive, process, and track them whether they saw any benefit to them, or wanted them or not, diverting scant resources away from already stripped inspection and compliance verification programs in many states.

The MPCA does not support the proposed requirement that LQGs notify EPA or their authorized state subsequent to closure of only a hazardous waste accumulation unit. The MPCA has already discussed in the preceding paragraph its concerns regarding attempting to require notification of any kind regarding closure of a container. Post-closure notification of a container closure raises exactly the same concerns as pre-closure notification. A `closed' container is either just an empty container, which may be placed back into service at any time, or simply is gone. The only thing an inspector would have to look at in the case of a properly or even improperly closed container unit is empty air, since the container would be gone (the inspector would not even have a specific place on the floor where the container used to be to look at, since hazardous waste containers may be stored anywhere, and there is no restriction on moving them anywhere on a site for any time, as long as any location where a hazardous waste container is placed meets the applicable requirements, including impervious flooring, containment, and weekly inspections). Similarly, postclosure notice only serves a function if the regulatory agency receiving the notice can take any meaningful action in response. The only real response to a notification of past closure would be to send an inspector to see the formerly closed unit. If the unit is properly closed, there is nothing to see - tanks are emptied, removed, cut up for scrap, and shipped off-site. Drip pads are discernable from these concerns if not only closed but removed, as the soil underneath the former structure remains and may present an environmental risk from now-exposed contamination. The MPCA would support a post-removal notification requirement solely for drip pads and containment buildings.

The MPCA supports the proposed requirement that LQGs notify EPA or their authorized state subsequent to closure of an entire operating site (including closure by sale or other transfer of the site to another operator). However, the MPCA cautions that most often sites are closed upon sale of the site to another party, and requiring post-closure corrective actions to a site no longer controlled by the generator is extremely problematic and often not workable. Thus, though notification upon site closure at least serves the purpose of notifying the regulating agency that another party will likely control the site, it can often serve only a limited cleanup/inspection purpose. (0232)

Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: 11. EPA Should Not Adopt the Proposed Closure Requirements that Would Be Applicable to Conditionally Exempt LQGs if they Stop Accumulating Hazardous Waste in Containers.

EPA is proposing to strengthen the closure regulations for LQGs accumulating hazardous waste in containers in central accumulation areas that plan to stop hazardous waste accumulation in those containers by requiring them to meet the same type of closure regulations that apply for tanks, drip pads and containment buildings, including in those situations where a generator is not able to demonstrate that its contaminated soils can be practicably removed or decontaminated. This notification would state that the LQG has clean closed or failed to clean close and therefore must close as a landfill. Additionally, EPA is proposing that an LQG notify EPA or their authorized state within 90 days after closing the site or the unit accumulating the hazardous waste.

FPA is not in favor of the proposed requirement for an LQG to notify EPA or the authorized state using EPA FORM 8700 - 12 at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste. Not infrequently in the flexible manufacturing process, FPA's members may "close" ink rooms where hazardous wastes are accumulated. If there have been no spills or releases and the facility is not changing ownership, FPA's members see no additional benefits to the proposed closing procedures since containers are already required to be labelled and disposed of in accordance with the regulations by licensed TSDFs. More importantly, the proposed new requirements seem to restrict the ability of operators to move the location of accumulation sites, which can be important to do to avoid risk to workers and potentially the environment. Therefore we submit that the benefits of the proposed approached are outweighed by its cost and should be limited to facilities that have experienced reportable spills or releases and/or is changing ownership or control. FPA also asks for clarification if the agency plans on revamping FORM 8700-12 to meet this proposal's reporting purposes, as the current FORM does not appear to accommodate the proposed reporting. (0240)
Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Comment: DC supports notification of closure only once no later than 90 days after closure. DC suggests that EPA develop a simple form specific for this task, and that it be possible to complete the form online via MYRCRAID. (0248)
Response: The Agency appreciates the support of this commenter. The Agency intends to look into developing a simple form for this task and eventually online form via MYRCRAID.
Comment: Further, EPA is proposing to require an LQG to notify EPA or the authorized state using EPA form 8700-12 two different times: at least 30 days prior to closing the generator's site or when the generator closes a unit accumulating hazardous waste, or closure of site altogether; and subsequently, 90 days after closing the site or the unit accumulating the hazardous waste. This notification would state that the LQG has clean closed or failed to clean close and therefore must close as a landfill. EPA intends this provision to ensure that sites are properly closed.

ACA contends that pre-and post-closure notification would not provide an added benefit to human health or the environment, or even to EPA, because EPA will be notified once the closure is completed, and generators would certify that they have performed their due diligence, which is EPA's primary concern. EPA contends that notifications are necessary to determine whether sites are closed properly and not abandoned leaving behind hazardous waste. However, facilities that would abandon a site would most likely not notify the regulatory agencies, and facilities that are not closing the site but only the hazardous waste accumulation unit are not likely to abandon hazardous waste. Even if a site closes, it is in the best interest of the facility owner to ensure proper closure in order to sell the property given that an environmental site assessment would be a means to ensure sites are closed properly. At the very least, closure notifications should not be required for sites that remain active and are closing an accumulation unit. ACA also discourages the Agency from imposing this new, additional notification requirement on SQGs. (0262)

Response: The Agency believes the response at beginning of this section addresses the concerns raised by this commenter.

Section 4.6.4 - Certification of clean closure by LQGs

Comment: Regulations 262.17 and 262.34
Small Quantity Accumulation
The AEF recommends that the EPA give consideration to LQGs that do not store substantial quantities of hazardous waste. LQGs that store small quantities of hazardous waste may not present the same magnitude of risk as landfills and other sites that accumulate larger quantities of hazardous waste. Onerous landfill closure requirements are not appropriate for each and every LQG that cannot demonstrate "clean closure." (0087)
Response: The comment is beyond the scope of this rule since the agency did not propose or take comment on this scenario.
Comment: USWAG also objects to the requirement imposing a certification on closure for central accumulation area units in addition to notification of closure. Notice of closure should be sufficient for compliance and enforcement purposes. (0093)
Response: Certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv).
Comment: NJDEP supports LQG's notifying within 90 days after closure of the site or a hazardous waste accumulation unit that they have either clean closed or, if they cannot clean close, that they will close as a landfill. We also support requiring LQGs certify that they have clean closed or failed to clean close.
Response: The Agency appreciates the support of NJDEP. Regarding its last comment, certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv).
Comment: Certification of clean closure (or failure to clean close) may be a particular challenge for generators operating on leased properties, especially to the extent that it might require certification about site conditions that the generator has no knowledge of or control over. This is a particular issue in the retail sector, since many retail locations are on leased premises within multi-tenant properties, such as a mall or shopping center.

In light of the above, the Retail Associations urge EPA to either abandon its proposals regarding closure of generator accumulation areas, or substantially modify the proposals to address the issues discussed above. (0168)

Response: In situations where a retailer is leasing land for its business, it will have do its due diligence and determine what was on the site before it took over the land. Also, certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv).
Comment: Requirement of Notification to Add or Remove Accumulation Storage Areas

Universities have many areas of Satellite Accumulation that change in concert with relocation of laboratory/shop/studio areas. Notifications of these changes could be frequent and constant depending on the level of research activity, development of new research areas and buildings and the nature of the research itself. This places an undue burden on university staff and takes away time from essential hazardous waste duties and safety. (0209)
Response: SAAs are not subject to closure requirements under this rule.
Comment: DC supports having LQGs certify as part of the closure completion form that they have clean closed. DC requests that EPA develop a simple form specific for this task which can be completed online via MYRCRAID. (0248)
Response: Certification that the facility has closed is not required in the final rule, only that the facility notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv).
Also, the Agency will look into developing a simple form for this task and eventually online form via MYRCRAID.

Section 4.6.5 - Notification of closure by SQGs

Comment: With respect to proposed notification to the EPA for closing Hazardous Waste accumulation units for SQGs, Minnkota considers notification as an unnecessary action. A reduction of generation would already be reflected in reporting or generator status downgrade to CESQG status. If anything, a line or check box could be added to the reporting format. However, if proposed biennial reporting for only LQGs (part 262.41) takes effect, then a notification for SQGs may be helpful. (0076)
Response: SQGs are not subject to closure requirements under this rule. However, there may be situations where this may not always work. For example, what about facilities that regularly operate as LQGs but drop down to an SQG status a couple of months before closing their facility? What about the situation where a facility vacillated between SQG and LQG over the course of a long period of time? For these reasons, EPA and the states will make a case-by-case determination on whether closure performance standards are applicable to the facility based on the facts of the situation.
Comment: We do not want a closure notification requirements for SQGs.
Response: See response to Comment 0076 above.
Comment: With regard to EPA's request for comment on requiring SQGs to notify when they close, Colorado does not think it is necessary. We are concerned that the enforceability of this requirement would be burdensome, similar to our concerns for LQGs mentioned previously. In addition, given the size and rate of change in the SQG universe, tracking these notifications would not be practical. (0085)
Response: See response to Comment 0076 above.
Comment: NJDEP supports that SQGs which stop accumulating and close any or all of their hazardous waste accumulation units should notify EPA or the state within 60 days after closing. (0108)

Response: See response to Comment 0076 above.
Comment: Notification after a unit is closed but within 30 days is sufficient. Notification before it closes is not needed.

US EPA requested comment on whether SQGs that stop accumulating or close any or all of their units should notify within 60 days after closing. The Expert Group would prefer that all sites required to have an EPA ID send a notification when they close, within 30 days. Sixty days is too far removed from the activity cessation. The site contact person may be unknown or unreachable as time passes. If we decide to visit the site, the sooner we know about the closure, the better. (0125)
Response: See response to Comment 0076 above.
Comment: DEQ does not believe, however, that there would be a benefit for the state or facility if an SQG or LQG were to notify the state either before or after the closure of one of its waste accumulation units. The facility, if it has done its due diligence, will have managed and disposed of its hazardous wastes according to all regulatory standards. DEQ instead believes that facilities should be required to notify in the event that the facility closes, which would by definition include closure of waste accumulation units. (0182)

Response: See response to Comment 0076 above. Regarding the last comment, in the final rule, LQGs will have the option of either placing a notice in their operating record that they have closed a waste accumulation area, or notify they intend to clean close and notify they have clean closed or failed to clean close (i.e., comply with the closure performance standards.
Comment: 27. Pages 57955:75956, Section VIII.: Utah agrees that SQGs should notify the State/EPA within 60 days after closing. However, this will be an issue for any generator that went out of business and failed to notify the appropriate agency in advance of such an action. (0185)

Response: See response to Comment 0076 above.
Comment: 12. FR Section VIII.G.4- Request for Comment- (Whether SQGs that stop accumulating and close any or all of their hazardous waste accumulation units should notify EPA within 60 days after closing)

Comment- Idaho DEQ believes receiving a closure notification after closure would only be effective for SQGs that remain in business after closing a unit or units. If the business is closing, notifying the regulatory agency after the fact would not be nearly as helpful and protective as notifying prior to closure. (0189)

Response: See response to Comment 0076 above.
Comment: The state agrees that SQGs should remain not subject to the clean closure requirements. Although there would be a benefit in having SQGs notify when site closure occurs, we do not believe it should be a requirement. (0195)
Response: See response to Comment 0076 above.
Comment: One State noted if SQGs become subject to this requirement it will mean more of a burden to the States to process the forms and conduct inspections to verify closure. Additionally, numerous data management changes will be needed after the final rule, including RCRAInfo database, Form 8700-12, State hazardous waste databases, along with State forms and instructions. (0217)

Response: See response to Comment 0076 above.
Comment: EPA is also requesting comment regarding whether SQGs that stop accumulating and close any or all of their hazardous waste accumulation units should notify EPA within 60 days after closing. One State believes if EPA is proposing to add closure notification requirements for SQGs, they should resemble requirements for LQGs, including the notification timeframes. With that said, the State supports the requirement for notifying when the facility closes using EPA Form 8700-12. The notification should be sent to EPA or the authorized State. (0217)
Response: See response to Comment 0076 above.
Comment: EPA should not require generators to notify of closure. (See Comment #30). (0219)
Response: See response to Comment 0076 above. Otherwise, LQGs shall be subject to closure notification requirements.
Comment: DC recommends the same time limit for SQGs as for LQGs  -  90 days. DC supports similar notification requirements and associated simple forms for SQGs. In order for the States to have an accurate understanding of the scope of Hazardous Waste generation within their jurisdiction, the States must know which facilities have closed  -  or moved. (0248)

Response: See response to Comment 0076 above.

Section 4.6.6 - Other

Comment: 262.17(a)(9): We have no issue with requiring the disposal restrictions be followed. We do note that 262.17 header text states that generators need not comply with Part 268 requirements if they follow the requirements of 262.17, so to say they do not apply as "independent requirements" only to add them back in this paragraph seems redundant. (0078)

Response: EPA has removed the reference to Part 268 in the 262.17 header language in the final rule. The requirement, however, remains the same as in the proposed rule. Specifically, SQGs and LQGs are required to comply with all applicable land disposal requirements at 40 CFR part 268.

Comment: - 262.17(a)(8)(i)(B): See our comment on 262.17(a)(8)(i)(A). This is also the first time we have seen container accumulation linked to closure as a landfill (reference to 40 CFR 265.310). As storage is not considered to be "placement on the land" but simply "holding for a temporary period" [Footnote 9: 40 CFR 260.10, definition of "storage".], the leap from 90-day accumulation to landfill is extraordinary. We suggest EPA consider alternatives for generator accumulation units that cannot clean close. For instance, RCRA corrective action can be invoked without having to establish the unit as a disposal facility.
Response: The Agency is applying the same closure performance standards to container waste accumulation areas as those currently associated with tanks and containment buildings.

Comment: 262.17(a)(8)(ii)(A)(4): See our comment on 262.17(a)(8)(i)(B) regarding consideration of generator accumulation areas as landfills. This requirement as given in this subparagraph is likely impossible for generators to meet as regards Subparts G and H of 40 CFR 265. Generator accumulation is seldom constructed with the anticipation that double liners and groundwater monitoring systems will be necessary, and installing them after the fact is frequently impracticable. We recommend that EPA move units like these to the RCRA corrective action program in order to more promptly and efficiently move these units to proper cleanup, in lieu of using the cumbersome RCRA permitting and closure process. (0078)
Response: The Agency is applying the same closure performance standards to container waste accumulation areas as those currently associated with tanks and containment buildings. The Agency sees no reason to differentiate requirements for generators that can't clean close or meet the applicable closure performance standards.

Comment: For waste containers managed in <90-Day Central Storage Areas (as newly defined in the rule), EPA proposes to require compliance with the tank closure standards when the generator ceases waste accumulation in the Central Accumulation Area. Areas which cannot be closed in accordance with the standards may be considered landfills with attendant post-closure care, monitoring, maintenance and financial assurance requirements.
The storage areas are already the subject of strict container management standards, spill response and cleanup, and inspections, including proposed documentation of weekly inspections. These current requirements assure prompt identification of any releases and assure they are appropriately addressed at the time they occur. To then require additional sampling, testing, etc., without any indication or history of container storage area issues, is both unnecessary and places an undue burden on the generator. The required additional agency notices are also unnecessary paperwork, serving only to provide opportunity for the agency to intervene in facility operational decisions and/or increase the potential for citations and violations without reducing environmental risk or impact associated with container storage areas. (0205)
Response: The Agency disagrees with the above comments. Any additional closure requirements will occur if the facility cannot clean close. If the facility complies with the container management standards, or tank, containment building and drip pad management standards, this issue is not applicable.
Comment: The changes do not resolve the issue of wood preservers that convert drip pads to use alternate, non-CCA chemistry. The facility and drip pad will remain in use, but the requirement to determine whether or not releases have occurred is deferred indefinitely, as are the provisions requiring closure as a landfill. (0214)

Response: That is correct. If the state has issues, it can always be more stringent than the federal program.
Comment: The States believe additional clarification is needed for the closure requirements. (0217)
Response: Without additional information, the Agency cannot respond to this comment although we believe other sections address the states concerns.
Comment: In addition, TWC requests that EPA remove the following language from section 262.17(a)(8)(ii)(A)(4):
"In addition, for the purposes of closure, post-closure, and financial responsibility, such a waste accumulation unit is then considered to be a landfill, and the generator must meet all of the requirements for landfills specified in subparts G and H of part 265 of this chapter."
The first sentence of proposed section 262.17(a)(8)(ii)(A)(4) already makes clear that facilities that cannot clean close must be considered a landfill, and also provides that the requirements of § 265.310 are triggered. Section 265.310 in turn imposes certain specified provisions of subpart G. Therefore, the first sentence of 262.17(a)(8)(ii)(A)(4) fully addresses the closure requirements for facilities that cannot clean close, and the second sentence should be deleted. TWC is concerned that the proposal would otherwise impose new and unnecessary closure burdens on generators who cannot clean close. As the current regulations reflect, generators store a significantly smaller amount of hazardous waste than treatment, storage, and disposal facilities and therefore should not be subject to the same rigorous closure regulations.

TWC requests that EPA remove the reference to 265.445 from sections 265.111(c) and 265.114. EPA states in the preamble that the failure to refer to generator-only drip pads in these general closure requirements provisions was an "inadvertent oversight". 80 Fed. Reg. at 57954. However, this is incorrect  -  a reference to drip pads was intentionally omitted from Section 265.111(c) because drip pads are subject to separate, unit-specific closure requirements. In addition, including the reference to drip pads in sections 111 and 114 is unnecessary because
EPA's proposed § 262.17(a)(8) includes the general closure performance standards found at 265.111(a) and (b), as well as a modified version of § 265.114 (disposal or decontamination of contaminated equipment, structures, and soil, as well as management of any leakage) with drippad-specific language. Thus, the closure requirements related to drip pad large-quantity generators are now captured in section 262.17, and there is no reason to reference drip pads in the general closure requirements at sections 265.111 and 114. Such references have the potential to cause confusion, and should therefore be removed.

Finally, a few revisions are necessary to clarify the distinction between interim status drip pad closure and small or large quantity generator-only drip pad closure. For generator-only drip closure, 40 CFR 265.445(c) is not applicable. See the attached 1998 EPA guidance document which makes clear that for large quantity generator-only drip pad operators, the applicable closure requirements are 262.34(a)(1)(iii) and "265.445(a) & (b)". Thus, EPA has interpreted the current regulations as not triggering section 265.445(c) for generator-only drip pad operators.
Therefore, the first sentence of proposed section 262.16(b)(4) should be revised to clarify that 40 CFR 265.445(c) is not applicable to small quantity generator-only drip pad operators.
The first sentence of proposed section 262.16(b)(4) should be revised as follows (new text in bold):
A small quantity generator may accumulate hazardous waste on drip pads for 90 days or less without a permit or without having interim status provided that it complies with 40 CFR part 265 subpart W (except for 265.445(c)). [Footnote 2:
For large quantity generator-only drip pad operators, EPA has already consolidated all of the applicable closure requirements into proposed 262.17(a)(8). As stated in the preamble, First, EPA is proposing to consolidate the closure regulations for LQGs accumulating hazardous waste at § 262.17(a)(8). This consolidation would
include both the general performance requirements found at §§ 265.111 and 265.114 for containers, tanks, drip pads, and containment buildings, and the unit specific requirements found at § 265.197 for tanks, § 265.445 for drip pads, and § 265.1102 for containment buildings.
80 Fed. Reg. 57953 (emphasis added). Therefore, 262.17(a) should be revised to clarify that 40 CFR 265.445 is not applicable to generator-only drip pad operators, as all applicable closure requirements are now listed in 262.17(a)(8). We recommend that the first sentence of proposed section 262.17(a)(3) should be revised as follows (new text in bold):

If the waste is placed on drip pads, the large quantity generator must comply with subpart W of 40 CFR part 265 (except for 265.445)and maintain at the facility the following records by use of inventory logs, monitoring equipment records, or any other effective means...
These changes will clarify the applicable closure requirements for generator-only drip pad operators.

Response: The Agency realizes it made a mistake in drafting the closure requirements for drip pads by including them with the closure requirements for containers, tanks and containment buildings when the requirements are different. The Agency believes it has corrected this mistake by separating out the closure requirements for drip pads and updating closure requirements consistent with the latest guidance. Similarly, SQGs accumulating hazardous waste on drip pads will have 180 days once they have been removed hazardous wastes from the drip pad. SAAs are not included in the closure requirements.

Section 4.7 - Preparedness and planning
     General Comments

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter supported proposed changes to preparedness, prevention and emergency procedures provided that they can be part of a combined or single plan that typically includes similar type information associated with other EPA regulations as well as regulations from OSHA. (76)

Response (76):  Existing regulations include a recommendation that generators base their contingency plans on One Plan guidance and these recommendations remain unchanged in this final rule at 40 CFR 262.261(b).

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter noted that the regulations of Parts 264 and 265 (assumed by EPA relate to prior generator regulations that reference 40 CFR part 265, subparts C and D) anticipated that the descriptions and lists of emergency equipment and materials, for example, would be contained in a permit or interim status documentation  -  noting that this also applies to training, inspections, etc. This commenter also noted that, although generators do not prepare permit applications, current standards require them to maintain something very similar in order to document the required preparedness and response measures. This commenter believed this is more burdensome than often necessary, further adding that generator inspections often devolve into extensive document requests, detailed review of these documents and citations of violations based on procedural requirements of these regulations that are frequently not directly relevant to the hazards associated with 90-day waste accumulation (CAAs). This commenter also asserted that such violations are often found at facilities where a field inspection indicated safe and compliant management of waste in accumulation. The commenter recommends that EPA clarify contingency planning and emergency preparedness requirements in the context of generator accumulation rather than continue to enforce the same generalized standards imposed on commercial storage facilities. (78)

Response (78):  EPA believes that the final preamble and regulations sufficiently clarify contingency planning and emergency preparedness requirements but do so in the context of not accumulation of hazardous waste at CAAs but also SAAs and associated points of hazardous waste generation.

Comment:  Besides providing other feedback on EPA's proposed rulemaking, three commenters noted that none of the three chemical accidents cited by EPA in the proposed rule preamble involved hazardous waste and suggested the agency examine accidents involving hazardous wastes to justify the proposed modifications for enhancing emergency preparedness regulations.  Specifically, these commenters stated that the quantity of hazardous waste at a facility is usually a small fraction of the overall inventory of hazardous materials, the latter of which the Agency presumes to represent non-hazardous wastes. These commenters also indicated that additional or expanded requirements regarding hazardous waste will not enhance emergency preparedness. (99, 173; 242)

Response (99, 173; 242):  The incidents cited by EPA in the proposed rule preamble were simply meant to illustrate the need for continued improvement in a number of areas related to facility safety, irrespective of whether an emergency situation involves hazardous wastes, non-hazardous waste, or other chemicals/substances. EPA believes that modification of regulations, as set forth in this final rule will enhance emergency preparedness.

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, a commenter mentioned one of the three chemical accidents cited by EPA in the proposed rule  -  specifically the West, TX incident  -  noting that, in response to this incident, all of its member companies handling ammonium nitrate reached out to local responders to provide necessary information for responding to an emergency involving this chemical (126/188).

Response (126/188):  EPA appreciates the additional insight provided by the commenter and notes that ammonium nitrate, if discarded, would be a hazardous waste under RCRA due to the reactivity characteristic.

Comment:  Besides providing another comment on this proposed rule, a commenter cited examples of two fires at a treatment and storage facility in Eau Claire, WI in 2007 and 2010, with the 2007 fire resulting in explosions that "shot fire more than 400 feet into the air," the evacuation of a half-mile perimeter around the plant and the destruction of several buildings and 15 tanks (206).

Response (206):  EPA appreciates this information as it provides an example a situation involving hazardous waste that illustrates the need for continued improvement regarding areas related to facility safety.

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, the commenter indicated support for EPA's proposed modifications for both SQGs and LQGs regarding preparedness, prevention and emergency procedures. (134)

Response (134):  EPA concurs with this commenter and believes the final rule will enhance emergency planning and preparedness.

Comment:  Although providing other feedback on EPA's proposed rulemaking, the commenter indicated that subpart M (Preparedness, Prevention, and Emergency Procedures for LQG) is not ready yet for final rulemaking and should be deferred for adequate consideration. (156)
Response (156):  EPA disagrees with this commenter and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness.

Comment:  A commenter indicated that proposed preparedness planning requirements are not anticipated to significantly impact or burden its facility. (172)

Response (172):  EPA agrees with this commenter and notes that changes made in response to feedback from other commenters have resulted in a final rule that will further reduces impacts/burdens.

Comment:  In addition to providing more detailed feedback on EPA's proposed rulemaking, this commenter supported EPA's proposed improvements to the requirements for SQGs and LQGs regarding preparedness, prevention and emergency procedures. These improvements included: (1) clarifying which areas of a generator's site these requirements apply to; (2) clarifying and updating the procedures for making emergency arrangements with local officials and documenting those arrangements; (3) creation of a new requirement for LQGs to create an "executive summary" of their hazardous waste contingency plan that would be more amenable for use by emergency responders during an actual emergency; (4) eliminating the need for LQGs to include personal information about emergency coordinators in their hazardous waste contingency plan provided that the emergency coordinator can be reached at a l times via an emergency contact number; (5) clarifying where required emergency and safety equipment must be kept; (6) clarifying what is meant by "immediate access to an internal alarm or emergency communication device" for personnel involved in hazardous waste management activities; (7) clarifying where SQGs must post the required emergency information within their facilities and (8) clarifying that SQGs may use contractors to clean up spills. (178)

Response (178):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness.

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter supports the proposed modifications for both SQGs and LQGs regarding preparedness, prevention and emergency procedures as these enhancements will ensure generators are better prepared to handle an emergency and successfully coordinate those efforts with the LEPC and/or local fire department. (181)

Response (181):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness.

Comment:  Although providing other feedback on EPA's proposed rulemaking, the commenter indicated that EPA's proposals are fundamentally unworkable to a large degree as some conflict with the provisions of existing State statutes regarding emergency management and many will conflict with the provisions of fire codes adopted by local jurisdictions, while others simply don't reflect the reality of modern relationships between local emergency planning committees, first responders and emergency management. The commenter opposed these changes and recommended that they be abandoned. (191)

Response (191):  EPA disagrees with this commenter and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness.

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter agreed with incorporating preparedness and prevention requirements into 40 CFR 262.16 section for SQGs and 40 CFR part 262 subpart M for LQGs and believed that incorporating these requirements in one area within the federal regulations adds clarity and assists the regulated community. (195)

Response (195):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness.

Comment:  In addition to providing other feedback on EPA's proposed rulemaking, this commenter believed that EPA's proposed rule supports the safety of communities surrounding hazardous waste facilities and notes that proposed changes will impose a slight impact to facilities under its jurisdiction  -  primarily associated with developing an executive summary and requiring arrangements with the local authorities regarding emergency procedures. (206)

Response (206):  EPA appreciates the commenter's feedback and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness.

Comment:  A commenter supported consolidating the contingency plan requirements for LQGs at 40 CFR part 262, subpart M and for SQGs at 40 CFR part 262.16. Although this commenter agreed that the new requirements for SQGs are important and will improve safety in the event of an emergency, they felt that the burden on SQGs, which are normally small businesses such as dry cleaners and auto repair shops, would be significant (248).

Response (248):  EPA believes that revisions to existing regulations, as reflected in the final rule, including modifications to making and documenting arrangements with local emergency responders, will not be unnecessarily burdensome to SQGs.

Comment:  The commenter indicated that it does not support any new SQG requirements in this area and takes no position with respect to new LQG requirements. (253)

Response (253):  EPA disagrees with this commenter and believes that changes made in response to feedback from all commenters have resulted in a final rule that enhances emergency planning and preparedness for not just SQGs but also LQGs.

b.   Use of "site" versus "facility"

Comment:  One commenter questioned the substitution of the term "site" for "facility" in proposed section 262.264 since emergency coordinators should not be required to be familiar with all "operations and activities at the site" or "the location of all records within the site"  -  adding that such familiarity should only extend to 90-day accumulation areas (CAAs) for which emergency coordinators are responsible. The commenter suggested rewording this requirement accordingly (78).

Response (78):  EPA has replaced the term "site" with "facility" in the final rule. Additionally, EPA has revised section 262.264 to reflect the fact that emergency coordinator responsibilities may vary depending upon the type/variety of hazardous wastes, as well as the type/complexity of the facility.  Existing regulations, as well as proposed regulations at 40 CFR 262.261(d), 40 CFR 262.263(e) and 40 CFR 262.264, allow for more than one emergency coordinator at a facility. Therefore, it would be possible to assign duties to multiple individuals serving in the emergency coordinator role. Please note that, as discussed elsewhere by EPA, emergency coordinator duties would, in addition to CAAs, involve SAAs and associated points of hazardous waste generation.

Comment:  A commenter mentioned existing 40 CFR 260.10 definitions of "facility" and "generator" in terms of asking several questions. These questions involved the differences between a site and facility, whether more than one site can exist at a facility, the presence of different generators and the boundary of a site or facility. The commenter also asked how the definition of site or facility falls within the generator exclusions from the definition of solid waste in cases where hazardous waste is also generated at the facility/site.  Finally, the commenter asked whether a "site becomes a facility if it has a solvent still." (214)

Response (214 EPA did not propose any changes to the definitions of "facility" or "generator," therefore these comments are beyond the scope of this rulemaking.  Moreover, EPA has decided not to replace "facility" with "site" in the regulations. Finally, EPA notes that these types of issues raised by the commenter are often determined on a fact-specific basis.

Comment:  This commenter also stated that the proposed rule preamble discusses the definition of "site" versus "facility," although proposed changes to 40 CFR 260.10 and 40 CFR 262.1 did not define the term "site." This commenter also noted that he language EPA is proposing to change currently appears in 40 CFR part 265, subparts C and D, which specifically refers to "facilities" as opposed to "sites." (214)

Response (214):  As stated elsewhere in EPA's responses to other commenters, EPA has replaced the term "site" with "facility" in the final rule.

Comment:  One commenter noted that, in certain sections, the term "facility" has been either deleted in the proposed regulations (e.g. 40 CFR 262.253) or replaced with "site" (especially key in 40 CFR 262.261, 262.263, and 262.265) or "generator's premises" (e.g. 40 CFR 262.264). The commenter stated that the term "facility" has a specific meaning in RCRA, while the term "site" or "premises" does not.  This commenter also stated that deletion of the term "facility" and it with an undefined term (or nothing at all) fails to specifically restrict the regulated emergency equipment, records or personnel to RCRA-related activities and adds further unwarranted uncertainty to the extent of facility regulation.  The commenter recommends that the term "facility" should be reinstated wherever it has been supplanted or removed (263).

Response (263):  As stated elsewhere in EPA's responses to other commenters, EPA has replaced the term "site" with "facility" in the final rule. Although the term "premises" remains, the Agency notes that the term "facility" now replaces the term "site" in the parenthetical that follows.

Comment:  The same commenter stated that, in proposed 40 CFR 262.265(i), the terms "owner/operator" and "facility" have been replaced by "generator." The commenter further states that the terms "owner" and "operator" are defined in 40 CFR 260.10 as being tied to the "facility," while the term "generator," as defined, is not. The commenter believed that the new terms, lacking specific definitions, are open to interpretation, whereas generators understand clearly what is meant by "owner/operator" and "facility" based upon their existing definitions. Mentioning certainty and clarity in regulatory requirements, the commenter suggested that the defined terms should be retained and the new terms deleted. (263)

Response (263):  As previously indicated, EPA has replaced "site" with "facility." Regarding the commenter's preferred used of the term "owner/operator," EPA notes that the term "generator" is defined at 40 CFR 260.10.  The Agency has replaced this "owner/operator" with either "small quantity generator" or "large quantity generator" throughout the final rule and believes this will not cause undo confusion on the part of the regulated community.

Response (overall):  As a result of comments received, EPA has reconsidered its proposal to replace the word "facility" with the word "site" in emergency preparedness and prevention regulations.  The Agency has decided not to change existing regulations; consequently, the Agency is replacing the word "site" where it appeared in this context in the proposal with the word "facility" throughout final rule language. EPA believes use of the word "facility" in these regulations would also be more consistent with the word "facility" used and defined in EPCRA emergency planning and notification regulations at 40 CFR part 355, as well as in Spill Prevention, Control and Countermeasures (SPCC) plan regulations at 40 CFR part 112.

Section 4.7.1 - Scope of RCRA preparedness and planning regulations
Comment:  A commenter noted that, as discussed by EPA in the preamble, although subpart M is intended to apply only to the accumulation areas for the LQG, the word "site" is used to describe the regulated entity. This commenter further notes preamble discussion that that a contingency plan is likely to include much more than the portions applicable to the waste accumulation areas under the National Response Team "One Plan" guidance. This commenter adds that a local agency is also likely to wish to consider all aspects of the generator's site  -  not just those involving hazardous waste  -  for emergency planning purposes. The commenter believed that, for the proposed regulation to be properly tuned for scope under RCRA, it needs to be revised to clarify that the requirement only applies to the waste accumulation areas at the generator's site and not the entire "site." (78)

Response (78):  The final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation. EPA recognizes that there are other portions of a facility where chemicals/substances other than hazardous wastes are managed.  This is addressed in the discussion of the contingency plan at 40 CFR 262.261(b), which mentions the "One Plan" guidance.

Comment:  A commenter believed that the requirements of proposed section §262.261(e) are unnecessarily burdensome with regard to "all emergency equipment at the site" and suggested the listing of emergency equipment be limited to the 90-day accumulation area (CAA) in order to recognize that the generator "may determine the most appropriate locations" for this equipment per proposed §262.252. (78)

Response (78):  EPA makes it clear in the final rule preamble and the rule itself that this requirement applies to all portions of a facility (this term replaces "site" in the final rule) where hazardous waste is managed under RCRA, which includes CAAs, SAAs and associated points of generation. The Agency adds in the preamble that "allowable treatment," though not defined in the regulations, is covered as part of the overall hazardous waste accumulation and management process within a facility and will continue to be addressed at generator facilities within the framework of existing guidance.  While it is true that section 262.252 allows the generator flexibility in determining appropriate locations of emergency preparedness and response equipment, this flexibility must still take into account all portions of a facility where hazardous waste is generated and accumulated, as well as where allowable treatment occurs.

Comment:  The commenter agrees with the proposal to make it explicit in the regulations that the preparedness, prevention, and emergency procedures regulations apply only to those areas at a facility where hazardous waste is managed. (85)

Response (85):  Consistent with the final preamble and regulatory text, EPA notes that the term "managed" includes CAAs, SAAs and associated points of hazardous waste generation within a facility.

Comment:  This commenter agreed with EPA's proposal to make it explicit in the regulations that the preparedness, prevention, and emergency procedures regulations apply only to those areas of the generator's site where hazardous waste is accumulated, and where applicable, those areas where allowable treatment may occur in accumulation areas. However, the commenter does not agree that EPA should include the word "generated" in this explicit statement, believing that the regulations, as currently written, refer generators accumulating waste in 90-day accumulation areas (CAAs) to preparedness and prevention and contingency plan and emergency procedures but that regulations on SAAs do not refer generators to Preparedness and Prevention provisions. The commenter believed EPA is proposing to expand provisions to all SAAs, as well as CAAs, by applying regulations to those areas of the generator's site where hazardous waste is generated. The commenter viewed this as an undue burden upon hazardous waste generators. (92)

Response (92):  EPA disagrees with this commenter. The final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation. EPA believes this modification is beneficial and will not pose an undue burden to generators.

Comment:  A commenter disagreed with the wording of proposed section 262.261(e) since the requirement for the contingency plan to include a list of all emergency equipment at a site could be construed to include the entire site, which the commenter believes EPA did not intend to imply. The commenter suggests regulations be revised to state that the contingency plan include all necessary equipment available for the 90-day accumulation area (CAA). (92)

Response (92):  The commenter appears to be asserting that proposed requirement regarding emergency equipment should apply only to CAAs, as opposed to the entire site (now termed "facility" in the final rule). EPA makes it clear in the final rule preamble and the rule itself that this requirement applies to those portions of a facility where hazardous waste is generated and accumulated. In doing so, the Agency, notes that there may exist multiple points of generation and associated SAAs at a facility from which hazardous wastes are routinely moved to CAAs; hence, the potential exists for spills during the accumulation and management process. The Agency adds in the preamble that "allowable treatment," though not defined in the regulations, is covered as part of the overall hazardous waste accumulation and management process within a facility and will continue to be addressed at generator facilities within the framework of existing guidance. EPA also notes that this requirement would only apply to areas of a facility where hazardous wastes are managed under RCRA and, as such, would not encompass other areas of a generator facility where chemicals and substances other than hazardous wastes are managed.

Comment:  This commenter found proposed Subpart M confusing as it is unclear that the phrase "where hazardous waste is generated or accumulated on site in accordance with the conditions in 262.17" is meant to constrain these requirements to those areas where waste is subject to the 90 day requirement (e.g., CAAs). (97)

Response (97):  This confusion has been addressed since 40 CFR 262.250 no longer cross-references 40 CFR 262.17 (LQG personnel training) in the final rule based on comments received; in other words, training requirements are codified only for CAAs.

Comment:  Two commenters expressed concern with EPA's proposal to expand the preparedness, prevention, and emergency procedures for LQGs to include areas where the waste is generated, noting that this is a substantial expansion of these requirements since the current regulations for LQGs only apply to CAAs. These commenters believed EPA's proposal is unnecessary and problematic because:  (1) there can be many points of generation in process areas and equipment within a facility; (2) it is impractical and unnecessary to supply emergency response type equipment for each and every one of these locations; (3) it is uncertain how the required aisle space would work within process areas and equipment; (4) it is unclear how implementation of the contingency plan would work in a process area, especially as it relates to spills and (5) there is potential overlap with numerous other federal requirements, including those administered by the Occupational Safety and Health Administration, the Mine Safety and Health Administration, and the EPA under the Emergency Planning and Community Right-to-Know Act. These commenters urged EPA to reconsider the Agency's proposal in light of the issues identified. (117,200)

Response (117, 200):  EPA disagrees with these commenters and believes including SAAs and associated points of hazardous waste generation, in addition to CAAs, within preparedness and planning regulations is beneficial. Regarding "overlap" with other federal requirements, 40 CFR 262.261(b), which mentions the "One Plan" guidance, is intended to address portions of a facility where chemicals/substances other than hazardous wastes are managed.

Comment:  Two commenters were supportive of EPA's overall objective of rewriting some of the regulations to add greater clarity but suggested the Agency specifically state that these provisions do not apply to SAAs or add clarifying language that the provisions are specific to CAAs. (121, 183)

Response (121, 183):  EPA disagrees with these commenters. The final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment:  A commenter requested the addition of text to specify that requirements are limited to operations that generate hazardous waste because only generator activities that result in the generation of hazardous waste are subject to Subtitle C regulation. This commenter also requested the addition of text to specify that contingency plans are only needed for accumulation areas and not the entire LQG site. (123)

Response (123):  EPA agrees with the commenter that generator activities are subject to Subtitle C but believes contingency plans should address RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation and notes that preamble and regulatory text in the final rule clarify this point.

Comment: A commenter supported the proposal to clarify that contingency plans would only have to address those areas within an LQG facility where hazardous wastes are generated and/or managed. (126/188)

Response (126/181):  EPA agrees with this commenter. Final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment: A commenter supported EPA's clarification that the emergency planning and procedures apply only to the areas of a generator's site where hazardous wastes are generated, accumulated and treated. (159)

Response (159):  EPA agrees with this commenter and notes that this point is made clear in the preamble and regulatory text for the final rule.

Comment:  A commenter noted that the proposed regulations suggest that regulations for preparedness/prevention, contingency planning and emergency procedures apply to those areas of a generator's site where hazardous waste is generated and accumulated, which appears contrary to previous EPA guidance, which included only CAAs. The commenter noted that many of the wastes at a generator's site are generated within SAAs. The commenter suggested that proposed regulations should specifically indicate that the contingency planning and emergency procedures are only applicable to CAAs and not to every SAA on site. The commenter noted that large universities can have more than one thousand individual SAAs throughout their campuses and that the expectation to include all of these areas in contingency planning and emergency procedures would result in maintaining detailed information such as evacuation plans for over 50 individual buildings on a single campus. The commenter further noted that emergency response and prevention is covered under existing standards such as the OSHA Laboratory Standard, Emergency Action Plans. The commenter suggested that requirements for preparedness/prevention, contingency planning and emergency procedures should remain consistent with previous EPA guidance. (187)

Response (187):  Although EPA is aware of previous Agency guidance and understands that numerous SAAs may exists at certain facilities; nevertheless, we believe that preparedness and planning regulations should be expanded to include CAAs, SAAs and associated points of hazardous waste generation.

Comment:  The commenter believed it is inefficient and unrealistic for EPA to suggest that effective emergency planning is only necessary for the hazardous waste generation and storage portions of a facility since it is not unusual for other chemical handling and storage portions of a facility to present much greater risks to the community and first responders. The commenter added that limited application of this proposal renders actions to be taken under the proposal worthless to LEPCs and first responders attempting to assess the risk of the entire facility. The commenter believes that EPA should require integrated contingency planning for the entire facility operated by LQGs. (191)

Response (191):  EPA agrees with the commenter. CAAs, SAAs and associated points of hazardous waste generation are being included within preparedness and planning regulations; moreover, 40 CFR 262.261(b), in particular the reference to "One Plan" guidance, is intended to address portions of a facility where chemicals/substances other than hazardous wastes are managed.

Comment 192:  The commenter supports the clarification that the preparedness, contingency planning, and emergency procedure requirements for LQGs apply only to those areas of the facility where hazardous waste is generated and accumulated. The commenter added that these requirements are supplemental to the requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Risk Management Program (RMP) rule and that EPA should not extend duplication any farther than necessary. (192)

Response (192):  EPA agrees with the commenter. CAAs, SAAs and associated points of hazardous waste generation are being included within preparedness and planning regulations; moreover, 40 CFR 262.261(b), in particular the reference to "One Plan" guidance, is intended to address portions of a facility where chemicals/substances other than hazardous wastes are managed.  We believe that this will ensure unnecessary duplication of effort.

Commenter 214:  This commenter stated that, while including areas where hazardous waste is generated may be a good idea, it will increase the contingency planning burden and appears to be contrary to specific preamble language in the original satellite accumulation regulation (December 20, 1984 final rule at 49 FR 49570) and existing EPA guidance (RO 14758). (214)

Response (214):  Although EPA is aware of the previous SAA regulation and Agency guidance, we believe that preparedness and planning regulations should be expanded to include CAAs, SAAs and associated points of hazardous waste generation.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one of its members agrees with EPA's proposed changes to clarify the applicability of the contingency planning and emergency procedures to hazardous waste accumulation areas.  Another member disagreed with the proposal to explicitly state that RCRA preparedness and emergency procedures regulations are limited strictly to areas where hazardous waste is generated and accumulated since emergencies can occur at places other than hazardous waste generation and accumulation areas. (217)

Response (217):  EPA notes that CAAs, SAAs and associated points of hazardous waste generation are being included within preparedness and planning regulations and adds that, consistent with 40 CFR 262.261(b) and references to "One Plan" guidance, portions of a facility where chemicals/substances other than hazardous wastes are managed can also be addressed.

Comment:  The commenter supported the clarification that the preparedness, prevention and emergency procedures apply only to areas where hazardous wastes are managed but notes that use of the phrase "generated or accumulated on site" in the proposal may be misinterpreted as including SAAs.  The commenter suggested that EPA make it clear these requirements do not apply to SAAs. (219)

Response (219):  Consistent with the final preamble and regulatory text, EPA notes that the term "generated and accumulated" is, in fact, intended to apply to not just CAAs but also SAAs and associated points of hazardous waste generation.

Comment:  The commenter supported this proposal as it would reduce the burden on facilities, especially large operations where hazardous waste may only be generated or handled in small specific areas, adding that limiting the application of RCRA preparedness, contingency planning, and emergency procedures to only areas generating hazardous waste will be helpful. (220)

Response (220):  EPA agrees with the commenter. The final preamble and regulatory text make it clear that preparedness and planning requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment: This commenter believed focusing on areas where waste is being either generated or accumulated and requiring emergency response equipment at each of these locations is impractical and unnecessary, noting that, within a manufacturing facility, there can be many points of generation or accumulation. This commenter added that it is impractical and unnecessary to supply emergency response type equipment for each and every one of these locations; moreover, requiring this equipment at "all areas" of generation or accumulation is at odds with the language that the "generator may determine the most appropriate locations." The noted that for hazardous waste has always been on storage and the requirements for maintaining emergency response equipment have likewise properly focused properly on where these wastes are centrally accumulated  -  and it should remain so. The commenter would like EPA to confirm that preparedness and prevention requirements do not apply to SAAs. (224)

Response (224):  EPA disagrees with this commenter. The Agency believes that preparedness and planning requirements should apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation. Furthermore, we believe that exists no inconsistency with language in the final rule stating that generators (SQGs or LQGs) may determine the most appropriate locations within their facilities to locate equipment necessary to prepare for and respond to emergencies.

Comment:  The commenter supports proposed clarifications to emergency preparedness requirements but does not believe these requirements should only apply to CAAs, noting that hazardous wastes at SAAs present the same risks to the facility as CAAs.  The commenter believed that including hazardous waste at SAAs as part of emergency preparedness requirements would not be a burden to SQGs or LQGs and, since all generators are already required to have emergency equipment on hand for hazardous waste accumulated under standard requirements, ensuring that such equipment is accessible to SAAs is also not a burden and can easily be met by all generators. The commenter suggests EPA clearly state that emergency planning and preparedness requirements apply only to all hazardous waste accumulated at an SQG or LQG. (232/281)

Response (232/281):  EPA agrees with this commenter. Final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment:  The commenter appreciated rulemaking clarification that delimits the scope of the contingency planning and emergency procedures to locations where hazardous waste is generated and accumulated on a site, which is not the entire site. The commenter believed this should be stated explicitly because there exists confusion on this topic. The commenter also supports proposed 40 CFR 262.261(b), which makes it clear that one contingency plan is all that is necessary to meet OSHA, RCRA CAA RMP, PPHMSA, CFATS and/or any other emergency response plan requirements.  The commenter added that duplication of plans or maintaining separate plans "by statute or media" have a huge potential to create confusion during an emergency, noting there is no evidence that "duplicative planning efforts" ensure a "coordinated emergency planning effort." (240)

Response (240):  EPA agrees with the commenter and believes that the final rule preamble and regulatory text satisfactorily address the commenter's concern regarding unnecessary duplication of effort.

Comment:  A commenter supported clarifying that the contingency plan must only address areas where hazardous waste is generated and accumulated. (248)

Response (248):  EPA agrees with this commenter. Final preamble and regulatory text make it clear that requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation.

Comment:  A commenter stated that, although EPA is proposing that preparedness/prevention/emergency procedures provisions for both SQGs and LQGs "...apply only to those areas of a generator's site where hazardous waste is generated and accumulated and...to those areas where allowable treatment may occur in accumulation units.," the proposed regulations themselves don't unequivocally state this, particularly for SQGs. The commenter cited an example where a SQG with a CAA would be required to comply with 40 CFR 262.16, which requires that "all conditions...listed in this section are met" and that one of those requirements is 40 CFR 262.16(b)(8) entitled "preparedness and prevention," which states that "a small quantity generator must maintain and operate its site to minimize the possibility of a fire, explosion or any unplanned sudden or non-sudden release of hazardous waste..." Since the site encompasses areas other than where hazardous waste is generated and accumulated, the believed that language needs to be amended. The commenter cited another example where only SAAs exist at an SGQ. The commenter notes that, since there is no regulatory definition of "accumulation," "accumulation" could be interpreted to include both CAAs and SAAs; therefore, it could be interpreted that not only 40 CFR 262.15 applies to this generator but also 40 CFR 262.16, since 40 CFR 262.16 says that an SQG "may accumulate hazardous waste on-site...provided all the conditions...in this section are met...," which includes the preparedness and prevention" requirements. The commenter added that proponents of this interpretation might argue that such an interpretation is supported by the fact that all SQGs must comply with the LDRs and that the only place in 40 CFR part 262 where this LDR compliance requirement is explicitly stated is directly above 40 CFR 262.16(b)(8) at 40 CFR 261.16(b)(7). The commenter indicated the possibility that a question may be posed as to where the regulations state that (b)(7) applies to such an SQG but (b)(8) does not. (271)

Response (271):  EPA disagrees with the commenter. Final rule preamble and regulatory text clearly indicate how requirements apply to SQGs under both of the scenarios illustrated by the commenter such that a clear reading of these requirements should not result in any confusion on the part of generators regarding the requirements with which they must comply.

Comment:  The commenter observed that 40 CFR 262.250 states that regulations in subpart M apply to an LQG's site where hazardous waste is accumulated under 40 CFR 262.17 and where hazardous waste is generated.  This commenter asked whether subpart M would apply in cases where a hazardous waste stream exits a production unit and is immediately drained into a container at an SAA, while also noting that, since SAA containers will be regulated under 40 CFR 262.15 and not under 40 CFR 262.17, they would not be subject to 40 CFR 262.250. An example provided involved a jug receiving waste draining directly from an HPLC chromatograph instrument. The commenter interpreted text in 40 CFR 262.250 ("The regulations of this subpart apply to those areas of a large quantity generator where hazardous waste is generated or accumulated on site...") as indicating that subpart M applies to generation areas of an LQG site. If so, then the commenter believed that it was inconsistent to have preparedness, prevention and emergency procedures apply to generation areas and to CAAs but not to SAAs, noting that subpart M requirements should not apply to the generation area if EPA does not believe they are needed for SAAs. (278)

Response (278):  EPA agrees with the commenter's statements regarding scope of preparedness and planning requirements and notes that the final preamble and regulatory text make it clear how requirements apply to RCRA hazardous wastes at CAAs, SAAs and associated points of hazardous waste generation, including subpart M in the case of LQGs.  EPA also notes that 40 CFR 262.250 no longer cross-references 40 CFR 262.17 (LQG personnel training) in the final rule, based on comments received; in other words, training requirements are codified only for CAAs. Regarding the question about a jug receiving waste draining directly from an HPLC chromatograph instrument at an SAA, EPA would view this scenario no differently than any other situation where hazardous wastes is generated at/near the point of generation. The same requirements would apply both here at the SAA and then subsequently at a CAA.

Response (overall):  Although the primary objective of these changes was to ensure that preparedness and planning regulations under RCRA did not apply to the entire facility, EPA received several comments on whether SAAs and points of generation should or should not be included within the scope of preparedness and planning regulations. Notwithstanding existing guidance, EPA believes there are benefits to addressing areas besides CAAs. Throughout a facility, there may be many points of generation and associated SAAs from which hazardous wastes are routinely moved to CAAs; therefore, the potential for spills exists during the accumulation and management process. For this reason, EPA has determined it is appropriate to address these additional areas, consistent with the objectives of EO 13650, in order to ensure protection of human health and the environment, as part of preparedness and planning regulations. With respect to allowable treatment, EPA believes that locations of such treatment would be covered as part of the overall accumulation and management process within a facility. Although EPA is not specifically defining allowable treatment in the regulations, the Agency has determined at this time to continue to address allowable treatment at generator facilities within the framework of existing guidance. EPA is, therefore, finalizing regulations making it clear that points of generation and SAAs, in addition to CAAs, fall within the scope of regulations for preparedness and planning in § 262.16(b)(8) for SQGs and 40 CFR part 262 subpart M for LQGs. This includes adding clarifying language in § 262.15(a)(7) and (8) regarding the conditions for exemption for both SQGs and LQGs that specifically relate to SAAs.

Section 4.7.2 - Adding LEPCs to regulations
     General Comments

Comment:  A commenter recommended EPA not require generators to place documentation of prior arrangements with LEPCs or other local agencies within their contingency plans, adding that these plans, if they are to be utilized by the emergency coordinator, should not include information that would not be consulted during an actual emergency. The commenter suggested making this information a recordkeeping requirement outside of the contingency plan itself or, alternatively, as part of an "annex" (attachment) to the contingency plan, as suggested in "One Plan" guidance. (78)