Response: Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination. Because of the potential confusion surrounding the use of testing and knowledge in the proposed rule, the Agency, as part of the final rule, has moved the discussion associated with use of knowledge before testing to emphasize this aspect of waste determinations since most generators use knowledge in making a hazardous waste determination.
Comment:EPA is also for all practical purposes is eliminating the ability to use process knowledge for waste determinations and require actual testing (e.g., TCLP test). This again is costly change that will add no benefit to waste determinations that the characteristics of the material is known. (0245)
Response: Generators may always use knowledge of their feedstocks and processes to make a hazardous waste determination. They are not required to conduct testing for this determination if they are able to use knowledge. Nothing changes in this rule about a generator using knowledge or testing to make a hazardous waste determination. Because of the potential confusion surrounding the use of testing and knowledge in the proposed rule, the Agency, as part of the final rule, has moved the discussion associated with use of knowledge before testing to emphasize this aspect of waste determinations since most generators use knowledge in making a hazardous waste determination.
Comment: Page 57940:
5. Determining Whether a Waste Is a Characteristic Hazardous Waste
a. Use of testing to identify waste exhibiting a hazardous characteristic.

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

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

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

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

Section <IP_ADDRESS> - Generator knowledge

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

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

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

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

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

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

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

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

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

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

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

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

Section <IP_ADDRESS> - Other

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

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

Section 4.2.5 - Maintaining records for all hazardous waste determinations

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

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

Section <IP_ADDRESS> - Scope of requirement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comment: Documenting waste determinations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Agency disagrees with the comment about retaining records for three (3) years after the last date of generation of a waste as being extremely burdensome. The Agency is not changing the record retention requirements under this rule; i.e., records must be maintained for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal.
Comment: Similar burdens would result in a laboratory where numerous experiments occur on a daily and weekly basis with slight variations in the materials used. Again, the laboratory personnel will have a good idea as to which wastestreams might contain ingredients that could cause the waste to be hazardous, but there will be many, many wastes that they generate that they know will not be hazardous simply because of what the waste contains. Yet for each one of these laboratory wastes, documentation would have to be created and retained.