regulation in line with the preamble to the 1986 rule. However, EPA
received numerous adverse comments regarding this change and as a
result withdrew that proposed change. The comments stated, among other
things, that, unlike containers, the Agency failed to realize that
generators do not actually mark their tanks with the date upon which
each period of accumulation begins because the tank is often a fixture
that is used and emptied repeatedly. Commenters argued that marking
tanks would cause confusion since there would be numerous markings all
over the tank making it difficult for the generator and inspector to
identify when the last period of accumulation began or could cause an
extra effort of removing the old marking before applying a new one.
    At least one commenter also cited an EPA letter clarifying Sec.
262.34(a)(l)(ii) in connection with the turnover of hazardous waste
stored in generator accumulation tanks.\75\ In that letter, EPA stated
that ``LQGs utilizing a batch process must meet the requirements of
Sec.  262.34(a)(l)(ii). For example, the use of inventory records in
conjunction with tank markings may provide confirmation that the tank
has been emptied within an appropriate time period. Specifically, the
inventory records typically show the dates and quantity of hazardous
waste entering the tank, as well as the dates the tank was emptied.
Shipping or hazardous waste manifest records also may be used to verify
when the tank was emptied. Likewise, tanks accumulating hazardous
wastes may have information indicating the time and date hazardous
waste first entered the tank.'' The Agency went on to say that there
may be other methods to demonstrate that a tank has been emptied, but
any method used to confirm compliance with Sec.  262.34(a)(l)(ii) must
be reasonable and easily discernible to EPA or an authorized state.
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    \75\ Letter from Matt Hale, Director of EPA's Office of Solid
Waste to John Hopewell, National Paint and Coatings Association,
February 16, 2007, RCRA Online 14764.
---------------------------------------------------------------------------

    Later in this letter, EPA stated that LQGs accumulating hazardous
wastes through a continuous flow process must ``demonstrate that the
hazardous waste has not been stored for more than 90 days . . . For
example, a generator could confirm that the volume of a tank has been
emptied every 90 days by recording the results of monitoring equipment
both entering and leaving a tank. This recordkeeping, in conjunction
with the tank volume, would enable inspectors, as well as [site]
personnel, to demonstrate compliance with Sec.  262.34(a)(l)(ii).
Likewise, in marking the tank, a generator could mark both the tank
volume and estimated daily throughput to allow inspectors to determine
the number of days that hazardous wastes resides in a tank to determine
compliance with Sec.  262.34(a)(l)(ii). As noted above, there may be
other methods to demonstrate that the tank has been emptied, but any
method or demonstration to confirm compliance must be reasonable and
easily discernible to EPA or an authorized state.''
    Subsequent to withdrawing the provision at Sec.  262.34(a)(2) as
part of

EPA's Hazardous Waste Technical Corrections and Clarifications Direct
Final Rule due to adverse comment, EPA also confirmed with state
officials that current operating practices do not include generators
physically marking their tanks. Instead, generators are able to use
inventory logs, monitoring equipment, or other methods to demonstrate
that a tank has been emptied within 90 days of the date hazardous waste
first entered the tank.
    Therefore, with respect to the accumulation start date for tanks,
EPA is proposing that generators may use inventory logs, monitoring
equipment or records indicating the date the hazardous waste first
entered the tank, as long as this information is immediately accessible
for inspection. Records from tank level sensors also may be used that
are either automatically logged from the sensors to a computer record
or recorded as part of a tank's operational daily inspection (required
by 40 CFR 265.195). Generators may also use any other methods that
clearly demonstrate the date hazardous waste first entered the tank and
was subsequently emptied within 90 days of the date hazardous waste
first entered that tank.
    The same issue potentially applies to a generator physically
marking and labeling the contents of the tank and its associated
hazards. If the contents and associated hazards frequently change, then
physically marking the tank could result in numerous markings and
labels on the tank, making it difficult for employees and others to
identify its contents. Therefore, following the same logic, the Agency
is proposing that generators use inventory logs or records to identify
the contents of the tank and its associated hazards. The Agency is also
proposing that such tank logs be immediately accessible by the
generator should the need arise.
    The Agency requests comment on the feasibility and effectiveness of
using inventory logs or records to identify the contents and hazards of
a hazardous waste tank. The Agency also requests comment on alternative
methods of identifying the contents and hazards of a hazardous waste
tank in a more cost-effective manner.
    Consistent with the existing regulations for tanks at Sec.
262.34(a)(3), the Agency will continue to require that hazardous waste
tanks be labeled with the words ``Hazardous Waste.''
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The labeling and marking regulations would
be moved from Sec.  262.34 to Sec.  262.16(b)(6) (for SQGs) and to
Sec.  262.17(a)(5) (for LQGs). The reorganization is discussed in
section XIII of this preamble.
3. Drip Pad and Containment Building Marking and Labeling for LQGs and
SQGs (40 CFR 262.34(a)(3)) \76\
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    \76\ Note: Under a separate provision discussed in section
VIII.J, the Agency is proposing to allow hazardous waste to be
accumulated by SQGs in drip pads and containment buildings.
---------------------------------------------------------------------------

    The existing regulations for drip pads at Sec.  262.34(1)(iii)(A)
and (B) require generators to produce a description of the procedures
that will be followed to ensure that all wastes are removed from the
drip pad and associated collection system at least every 90 days, and
to produce documentation of each waste removal, including the quantity
of waste removed from the drip pad and the sump or collection system
and the date and time of removal. Likewise, the existing regulations
for containment buildings at Sec.  262.34(1)(iv)(A) and (B) require the
generator to produce a written description of the procedures to ensure
that each waste volume remains in the containment building for no more
than 90 days, a written description of the waste generation and
management practices for the facility showing that they are consistent
with respect to the 90-day limit, and documentation that the procedures
are complied with. However, in both instances, the existing regulation
explicitly fails to account for when the hazardous waste is first
placed in or on the unit, which raises questions as to how a generator
documents that it has met the 90-day limit.
    Therefore, to address this shortcoming, and because the risks for
accumulating hazardous wastes on drip pads and containment buildings
are similar to those accumulating in tanks, and for purposes of
consistency and uniformity with the marking and labeling provisions for
tanks, the Agency is proposing the same marking and labeling regulatory
framework for hazardous wastes accumulated on drip pads and in
containment buildings that it is proposing for tanks.
    Specifically, the Agency is proposing that hazardous waste
accumulated on drip pads and in containment buildings be labeled in a
conspicuous place near these units with the words ``Hazardous Waste.''
The Agency is also proposing to revise the existing marking regulations
and clarify that LQGs and SQGs document the date that the hazardous
waste was first placed on the drip pad and the sump or collection
system in order to verify that the removal or turnover of the hazardous
wastes on the drip pad took place within 90 days or less in order to
support a generator's determination that it has not exceeded its 90-day
accumulation time limitation. Exceeding the 90-day time limitation for
LQGs and SQGs, respectively would be a violation of a condition for an
exemption from permitting requirements. Note that this is also
important because, as described in section VIII.J below, SQGs may move
their wastes from one type of unit to another (e.g., drip pad to
containers), and without knowing the start and end dates, the generator
will not be able to confirm that it met the appropriate accumulation
time limitations.
    Consistent with current drip pad regulations in 40 CFR
262.34(a)(1)(iii)(A) and (B), these provisions will continue to include
a description of the procedures to be followed by both SQGs and LQGs to
ensure that all wastes are removed from the drip pad and associated
collection system at least once every 90 days as well as documentation
of each waste removal.
    Finally, the Agency is proposing that generators use inventory logs
or records to identify the contents of the drip pad and its associated
hazards and that such logs and records be immediately accessible. The
Agency believes that these requirements are necessary to ensure that
workers and emergency responders handling or coming in contact with the
waste understand the hazards and dangers that they may be exposed to.
    In addition, as with the proposed changes for hazardous wastes
accumulated in tanks and on drip pads, the Agency is proposing to
clarify that LQGs and SQGs may use inventory logs, monitoring
equipment, or any other effective means to document the date the
hazardous waste was first placed in the containment building and the
date when the hazardous waste was removed to verify that the waste was
accumulated no more than 90 days at any one time.
    Consistent with the existing regulation at Sec.
262.34(a)(1)(iv)(A) and (B) for containment buildings, the proposed
regulation for both LQGs and SQGs will state that the generator must
maintain the following records and that they can do so by using
inventory logs, records from monitoring equipment, or any other
effective means:
    (1) A professional engineer certification that the building
complies with the design standards specified in 40 CFR 265.1101 in the
facility's operating record prior to operation of the unit; and
    (2) A written description of procedures to ensure that each waste
volume remains in the unit for no more

than 90 days by identifying the date hazardous waste first started to
be accumulated, a written description of the waste generation and
management practices for the site showing that they are consistent with
respecting the 90 day limit, and documentation that the procedures are
complied with; or
    (3) Documentation that the unit is emptied at least once every 90
days.
    Finally, the Agency is proposing that generators use inventory logs
or records to identify the contents of the containment building and its
associated hazards and that such logs and records be immediately
accessible. As with the proposed changes to the marking and labeling of
drip pads, the Agency believes that these requirements are necessary to
ensure that workers and emergency responders handling or coming in
contact with the waste understand the hazards and dangers that they may
be exposed to.
    As with the proposed changes to the tank marking and labeling
regulations at Sec.  262.34(a)(3), the Agency requests comment on the
necessity and effectiveness of explicitly requiring generators to use
inventory logs or records to identify the contents and hazards of
hazardous waste accumulated on a drip pad or in a containment building.
The Agency also requests comment on alternative methods of identifying
the contents and hazards of a hazardous waste on a drip pad or in a
containment building in a more cost-effective manner. Lastly, the
Agency requests comment on how a generator can more effectively mark or
label a drip pad or containment building with the words ``Hazardous
Waste.''
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The labeling and marking regulations would
be moved from Sec.  262.34 to Sec.  262.16(b)(6) (for SQGs) and Sec.
262.17(a)(5) (for LQGs). The reorganization is discussed in section
XIII of this preamble.
4. Request for Comment on Documentation of Waste Accumulation Unit
Inspections
    a. Container inspections at Sec. Sec.  262.34. The Agency is
requesting comment in this proposal on requiring both LQGs and SQGs, as
a condition for exemption to record the results of their required ``at
least weekly'' inspections to emphasize the importance of these
inspections in preventing releases into the environment and to provide
a measure of accountability that a generator inspection of its
containers actually took place.
    As part of the proposed reorganization to make the generator
regulations more user-friendly, the Agency is proposing to incorporate
parts of the existing regulatory text at Sec.  265.174 (Container
Inspections) into Sec.  262.34 (Sec.  262.16(b)(2) for SQGs and Sec.
262.17(a)(1) for LQGs under the proposed reorganization) and to revise
these paragraphs to incorporate the existing regulatory text at Sec.
265.171 for remedial action that is required if deterioration or leaks
are detected.
    The requirement for container inspections at Sec.  265.174 states
that the owner or operator must inspect areas where containers are
stored at least weekly and that the owner or operator must look for
leaking containers and for deterioration of containers caused by
corrosion or other factors.
    Currently, neither SQGs nor LQGs are required to record the results
of their weekly inspections. As a result, EPA and some states have no
reliable way to verify that such inspections took place unless, by the
rare chance, an inspector is inspecting a generator site at the same
time that the ``at least weekly'' inspection occurs or an inspector
notices a release from a container during an inspection. This problem
is compounded by the fact that generators accumulating hazardous wastes
in containers are not required to have any type of secondary
containment for their containers. Therefore, should a release occur,
these problems could be compounded if the ``at least weekly''
inspection fails to occur.
    A review of state programs found that many states already require
generators accumulating hazardous waste in containers to maintain
records of their weekly inspections. Many of these states provide
templates for generators to use to assist them in recording the results
of their inspections.\77\
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    \77\ See Sample of States With Container Documentation
Requirements in the docket for this rulemaking.
---------------------------------------------------------------------------

    EPA does not believe the burden imposed upon generators to record
the results of its weekly inspections would be significant,
particularly if generators use a template of some type to document the
results of inspections (see examples of templates provided by states to
generators to assist them in recording the results of inspections in
the docket to this proposal).
    The Agency also believes that best management practices for
generators would already include documenting the results of their
weekly inspections to not only prevent any releases, but also identify
situations, such as a damaged container, that could lead to a potential
release to the environment. That is, the Agency believes that the
incremental cost of documenting the results of weekly inspections would
be less than the costs of having to clean up after a release.
    The Agency is also seeking comment on modifying the generator
accumulation conditions (the proposed language at Sec. Sec.
262.16(b)(2)(iv) and 262.17(a)(1)(v) under the reorganization) to add a
provision that generators document their weekly inspections of
containers in central accumulation areas and keep the log of the
inspections at the site for at least three years. The record of each
inspection would document the following: the visual inspection of
containers to identify any hazardous wastes accumulated in rusting,
bulging, or leaking containers; a description of any discrepancies or
problem areas encountered in the inspection and corrective actions
taken; and the signature or initials of the inspector and the date of
the inspection.
    In requesting comment on documenting the results of ``at least
weekly'' container inspections, the Agency is interested in the
environmental and economic impacts of requiring all generators
accumulating hazardous waste in containers to document weekly container
inspection, as a condition for exemption. Additionally, the Agency
requests comment on whether to require documentation of such
inspections if the generator has a secondary containment system to
control leaks in the event of a release of hazardous wastes or other
such incidents. The Agency also requests comment on whether this
documentation requirement should be limited to those generators that
accumulate a certain amount of hazardous waste at any one time or
generators that accumulate more than a certain number of containers in
a central accumulation area at any one time. Lastly, the Agency also
seeks comment from generators in states who already must maintain
records of their container inspections on their experience with this
provision and whether there are effective alternative options worth
considering that achieve the same goals.
    b. Tank inspections for SQGs at Sec.  262.34(d)(3) with cross-
reference to Sec. Sec.  265.201(c) and (d). The Agency also requests
comment on requiring small quantity generators accumulating hazardous
waste in tank systems to document the results of their tank inspections
in order to emphasize the importance of these inspections in preventing
releases into the environment and to provide a measure of
accountability that a generator inspection of its tanks actually took
place. Unlike LQGs accumulating

hazardous wastes in tanks, who must document the results of their
inspections, SQGs have no such provision in part 262. EPA proposes to
incorporate the regulatory text of Sec.  265.201(c) and (d) into Sec.
262.16.
    The regulations at Sec.  265.201(c)(1) through (5) state that SQGs
must inspect discharge equipment, data from monitoring equipment, and
levels of waste in a tank daily, unless the tanks have secondary
containment and leak detection equipment or procedures, in which case
these can be inspected at least weekly. In addition, SQGs must inspect
the construction of tanks and of discharge confinement structures like
dikes and the areas immediately surrounding them at least weekly.
    Section 265.201(d) also requires that SQGs with full tank secondary
containment to document in the facility's operating record when an
alternative inspection schedule is used. However, neither Sec.
265.201(c) nor (d) contains a requirement to document the results of
any inspection findings. Therefore, the Agency requests comment on
adding a paragraph to Sec.  262.16 that would require that generators
record in a log the daily and weekly results of inspecting their tanks
and maintain a record of those inspections on site for at least three
years.
    Similarly, the Agency requests comment on adding a similar
provision to Sec.  262.16 to address tanks with secondary containment
and leak detection systems or practices to ensure that leaks that are
identified, that the generator would be required to record in a log the
results of inspecting these areas, including any leakage that may occur
and maintain a record of those inspections on site for at least three
years.
    In commenting on this matter, please consider, in particular,
whether it is environmentally and economically worthwhile to require
SQGs accumulating hazardous waste in tanks to document the results of
daily and weekly tank inspections. The Agency also requests comment on
whether to require the documentation of such inspections if the SQG has
a secondary containment system to control leaks in the event of the
release of hazardous wastes. Additionally, the Agency requests comment
on whether this documentation requirement should be limited to those
generators that accumulate a certain amount of hazardous waste at any
one time or generators that accumulate hazardous waste in more than a
certain number of tanks in a central accumulation area. Lastly, the
Agency also seeks comment from SQGs in states who already must maintain
records of their tank inspections on their experience with this
requirement and whether there are effective alternative options worth
considering that achieve the same goal.
    c. Drip pad inspections for both SQGs and LQGs at Sec.  262.34. The
Agency also requests comment on requiring both LQGs and SQGs
accumulating hazardous waste on drip pads to document the results of
their drip pad inspections. The current regulation in Sec.
262.34(a)(1)(iii) references subpart W of part 265. Section 265.444 in
subpart W currently requires that after installation, liners and covers
must be inspected to ensure tight seams and joints and the absence of
tears, punctures, or blisters and that while a drip pad is in
operation, it must be inspected weekly and after storms to detect
evidence of various types of damage to the drip pad or the systems that
prevent and detect run-off and leakage.
    As with hazardous waste accumulated in containers by LQGs and SQGs
and hazardous waste accumulated in tank systems by SQGs, there is no
regulation requiring them to document the results of drip pad
inspections. Therefore, the Agency requests comment on modifying the
generator accumulation conditions (Sec. Sec.  262.16(b)(4) and
262.17(a)(3) in the proposed reorganization) to add a condition that
the generator record in a log the results of weekly inspections and
inspections after storms and that the records address deterioration,
malfunctions or improper operation of run-on and run-off control
systems; the presence of leakage in and proper functioning of leakage
detection systems; and deterioration or cracking of the drip pad
surface. The generator would be required to keep a record of the
inspections on site for at least three years from the date of the last
inspection.
    In commenting, please consider whether it is environmentally and
economically worthwhile to require SQGs accumulating hazardous waste on
drip pads to document the results of weekly drip pad inspections.
Additionally, the Agency requests comment on whether this documentation
requirement should be limited to those generators that accumulate a
certain amount of hazardous waste at any one time. The Agency also
seeks comment from SQGs and LQGs in states who already must maintain
records of their drip pad inspections on their experience with this
provision, including whether it makes environmental and economic sense
to ensure releases do not occur and whether there are effective
alternative options that achieve the same goals.

G. Generator Closure Regulations

    EPA is proposing three changes to the closure conditions for
exemption from permitting for LQGs in Sec.  262.34(a)(1)(iv)(B). First,
EPA is proposing to consolidate the closure regulations for LQGs
accumulating hazardous waste at Sec.  262.17(a)(8). This consolidation
would include both the general performance requirements found at
Sec. Sec.  265.111 and 265.114 for containers, tanks, drip pads, and
containment buildings, and the unit specific requirements found at
Sec.  265.197 for tanks, Sec.  265.445 for drip pads, and Sec.
265.1102 for containment buildings.
    Second, EPA is proposing to strengthen the closure regulations for
LQGs accumulating hazardous waste in containers in central accumulation
areas that plan to stop hazardous waste accumulation in those
containers by requiring them to meet the same type of closure
regulations that apply for tanks, drip pads and containment buildings,
including in those situations where a generator is not able to
demonstrate that its contaminated soils can be practicably removed or
decontaminated.
    Third, EPA is proposing to require an LQG to notify EPA or the
authorized state using EPA form 8700-12 at least 30 days prior to
closing the generator's site or when the generator closes a unit
accumulating hazardous waste. Additionally, EPA is proposing that an
LQG notify EPA or their authorized state within 90 days after closing
the site or the unit accumulating the hazardous waste. This
notification would state that the LQG has clean closed or failed to
clean close and therefore must close as a landfill.
1. Consolidation of Closure Regulations for LQGs in Part 262
    EPA is proposing to consolidate all of the closure regulations for
LQGs accumulating hazardous waste in tanks, drip pads, and containment
buildings in the generator accumulation conditions (Sec.  262.17(a)(8)
under the proposed reorganization). EPA believes that the current
structure of these regulations can be confusing and difficult to
follow.
    Currently, the closure regulations for LQGs are found at Sec.
262.34(a)(1). These regulations refer to the general performance
requirements for closure at Sec. Sec.  265.111 and 265.114. Section
265.111 references the unit specific closure regulations found at
subpart J of part 265 (for tanks), subpart W of part 265 (for drip
pads) and subpart DD of part 265 (for containment buildings). The

closure regulations for LQGs refer to the TSDF regulations because the
waste accumulation units at LQGs (tanks, drip pads, and containment
buildings) are similar to those at TSDFs and, thus, present the same
potential for adverse impacts to human health and the environment if
closure is not conducted properly.
    However, while Sec. Sec.  265.111 and 265.114 cite the specific
closure regulations for different types of units, missing from Sec.
265.111 is a reference to drip pads and missing from Sec.  265.114 is a
reference to both drip pads and containment buildings. The Agency
believes these are inadvertent oversights where EPA failed to make the
appropriate conforming changes when the regulations for drip pads and
containment building were promulgated in 1990 and 1992,
respectively.\78\
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    \78\ Memo from Robert Springer, Director of EPA's Office of
Solid Waste, to RCRA Directors, September 24, 2003, RCRA Online
14681; Drip Pad Closure Notification and Certification Requirements,
November 1, 1997, RCRA Online 14130; and RCRA/Superfund Hotline
Monthly Report, December 1998, RCRA Online 14321, that states:
``LQGs are subject to the most stringent requirements, which include
general closure provisions and unit-specific ones. The general
closure requirements appear in Section 265.111 and Section 265.114
(Section 262.34(a)(1)).'' Additionally, the report states: ``LQGs
storing or treating waste in tanks, on drip pads, or in containment
buildings are also subject to closure requirements specific to these
types of units.''
---------------------------------------------------------------------------

    Furthermore, as with other parts of the hazardous waste generator
regulations, the accumulation regulations at Sec.  262.34 often
reference the detailed technical regulations of part 265 to reduce
duplication. Part 265 describes the technical regulations for interim
status TSDFs. Usually, the technical requirements in part 265 are clear
in distinguishing the generator standards from standards for interim
status TSDFs (e.g., Sec.  265.201 specifies that the provisions of that
paragraph are only for SQGs); however, this is not the case for the LQG
closure regulations.
    Finally, EPA believes the closure regulations are unnecessarily
confusing. For example, the tank system regulations for LQGs at Sec.
262.34(a)(1)(ii) make clear that the requirements of Sec.  265.197(c)
do not apply to LQGs. Yet, LQGs must comply with Sec.  265.111, which
in turn, at paragraph Sec.  265.111(c) requires LQGs to comply with
Sec.  265.197, which includes paragraph (c). One commenter wrote about
this confusion when the Agency proposed to clarify the closure
regulations for LQGs as part its March 18, 2010, Hazardous Waste
Technical Corrections and Clarifications Direct Final Rule (75 FR
12989).\79\ The Agency has made clear in guidance that generators are
not subject to Sec.  265.111(c), except if the facility cannot clean
close its waste accumulation unit(s), but we believe that a regulatory
change would make this even more clear.\80\
---------------------------------------------------------------------------

    \79\ Comments from the National Mining Association, May 3. 2010.
Docket ID No: ID EPA-HQ-RCRA-2008-0678.
    \80\ RCRA/Superfund Hotline Monthly Report, December 1998, RCRA
Online 14321.
---------------------------------------------------------------------------

    Therefore, as a first step in improving the usefulness of the
closure regulations for LQGs accumulating hazardous waste in
containers, tanks, drip pads, and containment buildings, EPA is
proposing to consolidate and integrate all relevant closure provisions
for LQGs accumulating hazardous waste in tanks, drip pads, and
containments buildings at Sec.  262.17(a)(8). The closure regulations
include the following: (1) the general closure performance standards
found at Sec.  265.111(a) and (b); (2) a modified version of the
standards found at Sec.  265.114 (Disposal or decontamination of
contaminated equipment, structures, and soils) that incorporates
regulatory language applicable to containers, tanks, drip pads, and
containment buildings undergoing closure; (3) the unit-specific closure
regulations relevant to tanks, drip pads, and containment buildings
found at Sec. Sec.  265.197(a) and (b), 265.445(a) and (b), and
265.1102(a) and (b), respectively;\81\ (4) a provision addressing the
disposition of any hazardous waste generated in the process of closing
either the generator's site or unit(s) accumulating hazardous waste,
and (5) a provision addressing the situation when a waste accumulation
unit or site cannot clean close and must close as a landfill. This
includes situations where an LQG accumulating hazardous wastes in
containers cannot clean close. More specifically, the proposed new
closure regulations in the generator accumulation conditions at Sec.
262.17(a)(8)(ii) would require LQGs at closure to close the waste
accumulation unit or site in a manner that achieves all of the
following:
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    \81\ Note: During the partial and final closure periods, all
contaminated equipment, structures and soil must be properly
disposed of, or decontaminated unless specified otherwise in Sec.
265.197, 265.228, 265.258, 265.280, or 265.310. By removing all
hazardous wastes or hazardous constituents during partial and final
closure, the owner or operator may become a generator of hazardous
waste and must handle that hazardous waste in accordance with all
applicable requirements of part 262.
---------------------------------------------------------------------------

    (1) Minimizes the need for further maintenance by controlling,
minimizing, or eliminating, to the extent necessary to protect human
health and the environment, the post-closure escape of hazardous waste,
hazardous constituents, leachate, contaminated run-off, or hazardous
waste decomposition products to the ground or surface waters or to the
atmosphere;
    (2) Properly disposes of or decontaminates all contaminated
equipment, structures and soil and any remaining hazardous waste
residues from waste accumulation units including containment system
components (pads, liners, etc.), contaminated soils and subsoils,
bases, and structures and equipment contaminated with waste. Any
hazardous waste residues remaining in the unit(s) being closed must be
removed from the unit(s). Any leakage must also be decontaminated or
removed and managed as a hazardous waste unless Sec.  261.3(d) applies;
    (3) Manages any hazardous waste generated in the process of closing
either the generator's site or unit(s) accumulating hazardous waste in
accordance with all applicable requirements of parts 260 through 270,
including removing any hazardous waste contained in these units within
90 days of generating it and managing these wastes in a RCRA Subtitle C
hazardous waste permitted or interim status treatment, storage and
disposal facility or interim status facility; and
    (4) Ensures that if the generator demonstrates that all
contaminated soils cannot be practicably removed or decontaminated as
required in this section, then the generator must close the waste
accumulation unit(s) and perform post-closure care in accordance with
the closure and post-closure care regulations that apply to landfills
(Sec.  265.310). In addition, for the purposes of closure, post-
closure, and financial responsibility, such a waste accumulation unit
is then considered to be a landfill, and the generator must meet all of
the standards for landfills specified in subparts G and H of part 265.
2. Closure Regulations for LQGs Accumulating Hazardous Waste in
Containers
    As an additional condition to qualify to accumulate hazardous waste
without a permit or interim status, EPA is proposing to require LQGs
accumulating hazardous wastes in containers in central accumulation
areas that plan to stop hazardous waste accumulation in those
containers to meet the same type of closure regulations discussed
above--that is, the closure regulations for tanks, drip pads, and
containment buildings. This includes situations where an LQG
accumulating hazardous wastes in containers can demonstrate that any

contaminated soils cannot be practicably removed or decontaminated and
as a result, the generator must close the waste accumulation unit(s)
and perform post-closure care in accordance with the closure and post-
closure care requirements that apply to landfills (Sec.  265.310). In
addition, for the purposes of closure, post-closure, and financial
responsibility, such a waste accumulation unit is then considered to be
a landfill, and the generator must meet all of the requirements for
landfills specified in subparts G and H of part 265.
    Supporting these proposed regulations are damage cases by
generators who accumulated hazardous wastes in containers. An
examination of Superfund removal actions shows LQGs accumulating
hazardous waste in containers have sometimes closed their doors or
abandoned their sites, resulting in environmental problems.\82\ Most
LQGs use containers to accumulate hazardous wastes. Some LQGs may
generate relatively small quantities of hazardous waste and therefore
may not need many containers to accumulate their hazardous wastes, but
other generators generate a sufficient quantity of hazardous waste to
require the use of a large number of containers each day. Not ensuring
that these sites are closed properly increases the risk of more damage
cases.
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    \82\ See EPA's On Scene Coordinator (OSC) Web site: http://www.epaosc.org.
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    For LQGs that accumulate hazardous waste in containers or container
units, EPA is proposing closure regulations that replicate the
regulations in paragraphs Sec.  262.17(a)(8)(ii), mentioned above. The
Agency believes the closure regulations are applicable to LQGs who have
accumulated hazardous waste in containers as well as to LQGs who have
accumulated hazardous waste in tanks, drip pads and containment
buildings in order to prevent adverse impacts to human health and
environment. Therefore, as with LQGs that accumulate hazardous wastes
in tanks, drip pads, and containment buildings, should a generator
decide to close a container or stop accumulating hazardous waste in
containers at the site altogether, it would be responsible for
complying with the regulations proposed at Sec.  262.17(a)(8)(ii) and
removing all relevant hazardous wastes accumulated within 90 days of
generating it and any hazardous wastes that also may have been
accumulated in SAAs. Otherwise, the generator would fail to meet the
conditions for the exemption from permitting and would be subject to
the requirements of 40 CFR parts 264, 265, 267 and the permit
requirements of part 270.
3. Notification by LQGs Upon Closure of their Hazardous Waste
Accumulation Units
    EPA is also proposing that an LQG notify either EPA or its
authorized state at least 30 days prior to closure of a hazardous waste
accumulation unit, such as a container, tank, drip pad, or containment
building, or closure of the site altogether. EPA is also proposing that
such generators subsequently notify EPA or its authorized state no
later than 90 days after closure of the site or a hazardous waste
accumulation unit that they have either clean closed (e.g., complied
with the applicable generator closure regulations) or, if they cannot
clean close, that they must close as a landfill. If these changes are
finalized, EPA will amend EPA form 8700-12 to incorporate collection of
this information.
    The hazardous waste regulatory program is a ``cradle to grave''
system in which any hazardous waste generated by an LQG (or SQG) must
be subsequently managed, either on site or off site at an appropriate
RCRA destination facility. Missing from the current regulatory
framework is knowledge by the regulatory authority that the LQG, upon
closing either a waste accumulation unit or closing the site
altogether, properly closed the accumulation unit in compliance with
the applicable closure regulations. Without this knowledge, regulatory
authorities do not know whether generators have abandoned the site,
leaving behind hazardous waste that could subsequently result in a
release to the environment and adverse impacts to human health and the
environment. Thus, these closure notifications are important to ensure
that LQGs close their waste accumulation unit, or site, in compliance
with the applicable closure regulations. Fail to properly close would
be a violation of the waste accumulation exemption.
4. Request for Comment
    EPA requests comment regarding its proposal to consolidate the
closure regulations for hazardous waste generated by LQGs in Sec.
262.17(a)(8) and whether this approach would improve the readability/
understandability of the rules, and thus, improve compliance. EPA also
requests comment on whether parts of the proposed closure regulations
at Sec.  262.17(a)(8) should be modified.
    EPA also requests comment regarding its proposal to strengthen the
closure regulations for LQGs accumulating hazardous waste in
containers.
    In addition, EPA requests comment on whether it should require LQGs
to notify EPA regarding closure both prior to closure (e.g., at least
30 days prior to closure) and after closure (e.g., notify no later than
90 days after the site has closed one or all of its hazardous waste
accumulation units either by clean closure or closed as a landfill) or
whether EPA should just require notification only once--that is, after
closure (e.g., no later than 90 days after closure). Requiring
notification only after closure of the hazardous waste accumulation
unit or site reduces the generator's paperwork burden in half and
allows EPA and the state to focus on results. However, requiring
notification both before and after closure creates greater visibility
for this important activity. The notification creates an incentive for
the generator to take all appropriate actions once the unit or site is
closed and also provides notice to EPA and the state to be aware of
this important activity and to plan for a possible inspection to verify
clean closure has successfully occurred or determine if additional
closure efforts are needed. EPA is currently of the opinion that the
additional environmental benefits accrued from requiring both
notifications will exceed the additional paperwork costs to the
generator. In conjunction with an LQG notifying EPA no later than 90
days after closure, EPA is also requesting comment on whether, as part
of the closure notification requirements, LQGs should be required to
certify that they have clean closed or failed to clean close all
applicable hazardous waste accumulation units. This type of
notification would have the added benefit of ensuring EPA knows that an
LQG performed their due diligence in closing and can certify to either
clean closing or closing as a landfill.
    Because there are no federal regulations for closure of a waste
accumulation unit or site closure by SQGs, SQGs are not required to
comply with the clean closure regulations, as well as notify when they
close any or all waste accumulation units. Unlike LQGs, which have no
waste accumulation limits as long as they remove any hazardous waste
within 90 days of generating it, SQGs do have a waste accumulation
quantity limitation of 6,000 kilograms. Given this waste accumulation
quantity limitation, EPA sees no reason at this time to propose
requiring SQGs to clean close or close as a landfill if they cannot
clean close. However, EPA sees a potential benefit in having SQGs
notify EPA when SQGs

close to allow the regulatory authority to follow-up and ensure that
all hazardous waste was removed and properly managed. Therefore, EPA is
requesting comment regarding whether SQGs that stop accumulating and
close any or all of their hazardous waste accumulation units should
notify EPA within 60 days after closing.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The LQG closure regulations would move to
Sec.  262.17(a)(8). The reorganization is discussed in section XIII of
this preamble.

H. Changes to the Preparedness, Prevention, and Emergency Procedures
Provisions (40 CFR 262.34(a)(4) and 262.34(d)(4) and (5))

    EPA is proposing a number of modifications to the conditions for
exemption for both SQGs and LQGs regarding preparedness, prevention and
emergency procedures. The conditions for SQGs are found at Sec. Sec.
262.34(d)(4) and (5) (which refer to the technical standards at 40 CFR
part 265 subpart C) and the conditions for LQGs are found at Sec.
262.34(a)(4) (which refers to the technical standards at part 265
subparts C and D).
    The proposed revisions are organized in this section as follows:
(1) Revising the scope of the contingency planning and emergency
procedures regulations; (2) revising Sec.  265.37(a) to state that when
making arrangements with local authorities regarding emergency
procedures, an SQG or LQG must first attempt to make emergency
preparedness and procedures agreements with its Local Emergency
Planning Committee (LEPC), and, if this attempt is not successful (or
there is no LEPC in the area), the generator must make an arrangement
with its local fire department and other emergency responders; (3)
modifying the regulations for contingency plans for LQGs in Sec. Sec.
265.52 and 265.53 to add an executive summary to the plan that a new
LQG would submit to the LEPC and to adjust the content of an element of
the required contingency plan; (4) making two revisions to the
technical standards regarding required equipment that are part of the
preparedness and prevention regulations in part 265 subpart C that are
applicable to both SQGs and LQGs; (5) modifying the preparedness and
prevention provisions for SQGs at Sec.  262.34(d)(5) regarding posted
emergency coordinator information and responsibility for cleaning up a
spill; (6) modifying the personnel training provision for LQGs; (7)
taking comment on what personnel should have mandated personnel
training, and (8) taking comment on whether any of these proposed
revisions would be appropriate for TSDFs in addition to generators.
    Recent catastrophic chemical accidents in the United States, such
as the 2013 West, Texas, fire and explosion that killed 15 people, the
2010 explosion and fire at Tesoro Refinery in Anacortes, Washington,
that killed seven employees, and the 2012 Chevron Refinery hydrocarbon
fire in Richmond, California, that affected 15,000 people in the
surrounding area, highlight the need for continued improvement in a
number of areas related to chemical facility safety. To address these
concerns, the President issued Executive Order 13650--Improving
Chemical Facility Safety and Security (EO) on August 1, 2013.\83\ The
EO directed the Department of Homeland Security, EPA, the Department of
Labor, the Department of Justice, the Department of Agriculture, and
the Department of Transportation to identify ways to improve
operational coordination with state, local, tribal, and territorial
partners; enhance federal agency coordination and information sharing;
modernize policies, regulations, and standards to enhance safety and
security in chemical facilities; and work with stakeholders to identify
best practices to reduce safety and security risks in the production
and storage of potentially harmful chemicals.
---------------------------------------------------------------------------

    \83\ http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
---------------------------------------------------------------------------

    One of the key goals the EPA is addressing through this effort is
enhancing and providing additional support to State Emergency Response
Commissions (SERCs) and LEPCs to assist them in collecting and
analyzing the chemical information they receive from local facilities
and developing local emergency response plans to mitigate or prevent a
devastating chemical disaster. Several of the proposed requirements are
aligned with these EO efforts and will assist in furthering this goal
and with those of the EO in general because they update the regulations
to make them compatible with the current infrastructure of emergency
planning and response by referencing LEPCs. Additionally, these
revisions would provide a more usable contingency plan to emergency
responders en route to a time-sensitive emergency at a generator of
hazardous waste. Before finalizing these provisions, EPA will ensure
that they are aligned with the efforts to improve chemical plant safety
and security under the EO.
    This preamble also discusses how EPA might incorporate modern
technology into the emergency planning and procedures regulations for
generators in order to provide information more quickly to emergency
responders when faced with an event at a generator.
    In addition to the changes listed above, as part of the
reorganization of the preamble discussed in section XIII, EPA is
proposing to copy the preparedness and prevention regulations for SQGs
into Sec.  262.16 and to create a new subpart in part 262--subpart M--
that would contain the more extensive preparedness, prevention, and
emergency procedures regulations for LQGs. Copying a version of these
regulations into part 262 allows most of the preparedness, prevention,
and emergency procedures regulations for generators to be easily found
without accessing part 265 and with minimal cross-referencing.\84\
---------------------------------------------------------------------------

    \84\ Note that throughout this section, although we are
referring to the regulations by their current citations, the fact
that we are also proposing in most cases to reorganize those
requirements and copy them into the generator requirements in part
262 means that the revisions discussed in this section would not
automatically apply to interim status TSDFs, as the proposed
revisions only apply to the version of these regulations that is
being proposed to be in part 262.
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    As part of this reorganization, our proposed regulation has
replaced the word ``facility'' in the regulations with ``site'' because
``facility'' is defined in Sec.  260.10 as specific to TSDFs. Another
small revision that we propose because of the reorganization of these
regulations is folding the ``comment'' in Sec.  265.55 into the body of
the corresponding proposed regulation at Sec.  262.264. We are
proposing this because Federal Register style no longer permits this
kind of comment in new regulations.
1. Areas Subject to Preparedness, Contingency Planning, and Emergency
Procedures Regulations
    The current preparedness and emergency procedures regulations do
not clearly state whether they are applicable to the entire generator
site or only to areas where hazardous waste is generated and
accumulated on site (or where allowable treatment may occur in
accumulation units) and when transported off site for subsequent
treatment, storage, and disposal. EPA is proposing that the regulations
for preparedness and prevention and for contingency planning and
emergency procedures apply only to those areas of a generator's site
where hazardous waste

is generated and accumulated and, where applicable, to those areas
where allowable treatment may occur in accumulation units.
    The Agency is proposing to explicitly state that the RCRA
preparedness and emergency procedures regulations are limited strictly
to areas where hazardous waste is generated and accumulated.
    The Agency has previously signaled that these requirements do not
apply to the entire generator site. In a November 7, 2006, letter, EPA
stated that the 40 CFR part 265 regulations for LQGs set forth in Sec.
262.34(a)(4) apply to units accumulating hazardous wastes. The letter
states that in order to comply with the part 265 requirements
referenced in Sec.  262.34(a)(4), LQGs only need to address those
tanks, containers, drip pads, and containment buildings that accumulate
hazardous wastes and are subject to the 90-day generator accumulation
provision. As an example, the letter states that when developing a
contingency plan, LQGs would only need to include those 90-day
accumulation units involving the on-site management of hazardous
waste.\85\
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    \85\ Memorandum from Matt Hale, Director of EPA's Office of
Solid Waste, to RCRA Division Directors, November 7, 2006, RCRA
Online 14758.
---------------------------------------------------------------------------

    It makes sense to limit the applicability of these regulations only
to these areas because several other statutes already address the
development and implementation of contingency plans associated with
other areas of a generator site, such as the storage of chemical
materials other than hazardous wastes. We also note that considerable
overlap exists in the requirements in the various statutes and, since
1997, the federal government has encouraged facilities to develop
integrated contingency plans and has provided guidance for doing so in
the Federal Register. The integrated contingency plan is discussed
further in section VIII.H.3, below.
    The language EPA is proposing to change currently appears in
Sec. Sec.  265.30 and 265.50, though we are proposing to move it to a
new part 262 subpart M to make it specific to generators. EPA proposes
that subpart M apply only to those areas of a large quantity generator
where hazardous waste is generated and accumulated on site in
accordance with the conditions in Sec.  262.17. This proposal includes
a parallel change for the emergency procedures regulations for small
quantity generators in Sec.  262.16.
    The Agency requests comment on making it explicit in the
regulations that the preparedness, prevention, and emergency procedures
regulations apply only to those areas of the generator's site where
hazardous waste is generated and accumulated, and where applicable,
those areas where allowable treatment may occur in accumulation units.
    Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. The proposed revisions would appear at Sec.
262.250 in a new subpart M of part 262 and would not appear in part
265. The reorganization is discussed in section XIII of this preamble.
2. Making Arrangements With the Local Emergency Planning Committee
    Sections 262.34(a)(4) and (d)(4) set forth conditions for LQGs and
SQGs that accumulate without a permit. Both these paragraphs include
references to part 265 subpart C, which contains a reference to Sec.
265.37. Section 265.37(a) states that ``The owner or operator must
attempt to make the following arrangements, as appropriate for the type
of waste handled at his facility and the potential need for the
services of these organizations'' and goes on to list the types of
local emergency officials that should be informed about hazardous waste
at a facility, such as fire departments and emergency response teams,
and the information the generator should provide them.
    The Agency is proposing to revise this provision for generators to
state that SQGs and LQGs must first attempt to enter into agreements
with their LEPC, but if there is no LEPC in the area or if the LEPC
does not respond or is unwilling to enter an agreement, the generator
must enter into an agreement(s) with the local fire department and
other emergency responders. This proposed revision would add to the
regulations both a reference to LEPCs and an explicit statement that
generators must enter into an agreement with emergency planning
officials, rather than just attempt to enter into an agreement.
    a. Local emergency planning committees. The Agency is proposing to
revise regulations that were finalized in 1980. The national and local
infrastructure for emergency planning and response has changed
significantly since that time, but these regulations have not been
updated to reflect those changes. The proposed revision to specifically
name LEPCs in this regulation addresses that deficiency.
    The Superfund Amendments and Reauthorization Act (SARA) was enacted
in 1986. Title III of SARA is also known as the Emergency Planning and
Community Right-To-Know Act (EPCRA). EPCRA helps increase the public's
knowledge and access to information regarding chemicals at individual
facilities, their uses, and releases into the environment. States and
communities, working with facilities, can use the information to
improve chemical safety and protect public health and the environment.
EPCRA requires both small and large entities to report chemical
information to the SERC, the LEPC, the local fire department, and
tribal nations.
    EPCRA requires LEPCs to prepare a comprehensive plan for local
communities designed to help them prepare for and respond to
emergencies involving extremely hazardous substances (EHS). Facilities
covered by EPCRA planning provisions are required to cooperate in
emergency plan preparation and designate a facility emergency
coordinator to participate in the planning process as well as notify
their SERC and LEPC within 60 days of becoming subject to the emergency
planning requirements (when an EHS is first present at the facility
from a shipment or production). Additionally, as part of the community-
right-to-know provisions of EPCRA, facilities that have hazardous
chemicals for which they must have or prepare an MSDS or SDS and have
at or above the threshold amount of those chemicals must also annually
complete and submit an Emergency and Hazardous Chemical Inventory form
(also known as a Tier II) to the LEPC, to the SERC, and to the local
fire department by March 1. These facilities must send copies of their
MSDS, SDS, or a list of hazardous chemicals to the LEPC, to the SERC,
and to the fire department.\86\
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    \86\ The regulations implementing the emergency planning and
notification requirements of EPCRA can be found at 40 CFR part 355.
---------------------------------------------------------------------------

    In turn, LEPCs must develop an emergency response plan, review it
at least annually, and provide information about chemicals in the
community to citizens. These plans are developed by LEPCs with
stakeholder participation. There are more than 3,000 designated local
emergency planning districts, although not all of these districts have
functioning LEPCs. The LEPC membership must include (at a minimum)
elected state and local officials; police, fire, civil defense, and
public health professionals; environment, transportation, and hospital
officials; facility representatives; and representatives from community
groups and the media. Although in many areas the LEPCs are the main
organizing entities for emergency response, the RCRA hazardous waste
regulations do not

mention them or their role in contingency planning.
    The proposed language directly references LEPCs, stating that the
generator must make arrangements with the Local Emergency Planning
Committee for the types and quantities of hazardous waste handled at
the site.\87\ This modification merely updates the RCRA hazardous waste
regulations to match the current emergency planning landscape.
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    \87\ Although much of the discussion of these provisions for the
purposes of this rule revolves around hazardous waste generators,
because the provisions are located in part 265 for interim status
hazardous waste TSDFs, they will refer to the persons regulated as
``owner or operator'' and the entity being regulated as the
``facility.''
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    Consistent with this proposed modification at Sec.  265.37, the
Agency is also proposing that when the language in current Sec.
265.52(c) is copied into part 262, it state that the plan must describe
arrangements agreed to with the Local Emergency Planning Committee.
Should there be no Local Emergency Planning Committee, should it not
respond, or should the Local Emergency Planning Committee determine
that it is not the appropriate organization to make arrangements with,
then the large quantity generator must make arrangements with its local
fire department and other relevant emergency responders (e.g., police
and hospitals) to coordinate emergency services, pursuant to Sec.
262.256.
    The Agency requests comment on this proposal to modify the language
in Sec. Sec.  265.37(a) and 265.52(c) when they are copied into part
262.
    Effect of Proposed Reorganization: These sections are affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec.  262.16(b)(8)(vi) and in the new part 262
subpart M for LQGs at Sec.  262.256 for arrangements and Sec.
262.261(c) for the content of the contingency plan. The reorganization
is discussed in section XIII of this preamble.
    b. Making required arrangements. The other proposed modification to
the language currently in Sec.  265.37(a) when it is copied into part
262 addresses the ambiguity of the current language, which requires
only that the owner or operator ``attempt to make'' arrangements with
local emergency response authorities.
    Section 265.37(a) states that the owner or operator must attempt to
make arrangements with local fire and emergency organizations, as
appropriate for the type of waste handled at the facility and the
potential need for the services of these organizations. Paragraph
(a)(1) makes clear that these arrangements involve familiarizing these
organizations with the layout of the facility, properties of the
hazardous waste handled at the facility and associated hazards, places
where facility personnel would normally be working, entrances to roads
inside the facility, and possible evacuation routes. Because an SQG is
not required to submit a contingency plan, this language suggests that
SQGs need only invite local officials to visit and familiarize
themselves with the site as compared to LQGs, which are required to
develop a written contingency plan and provide it to local officials.
    Given the importance of emergency preparedness and planning, EPA is
proposing to require that an SQG or an LQG must make direct
arrangements with its LEPC as part of this condition. The Agency
believes the LEPCs, in turn, will work with their local responders to
integrate the activities of SQGs and LQGs into the overall emergency
response plan.
    Many SQGs and LQGs may already have arrangements with their LEPCs
because most SQGs and LQGs either have EHSs that require reporting to
the LEPC, which triggers EPCRA emergency planning requirements, or use
chemicals that require an SDS, triggering the EPCRA community right-to-
know requirement to report to LEPCs. However, in the case that a
hazardous waste generator does not have a relationship with the LEPC,
that LEPC may view working with non-EPCRA facilities as outside the
scope of their authority. Alternatively, there may be a hazardous waste
generator in a location where there is no organized LEPC. Therefore, as
part of this regulation, EPA proposes to require that an SQG or LQG
attempt to make formal arrangements with its LEPC unless there is no
LEPC, the LEPC does not respond, or the LEPC determines that it is not
the appropriate organization to make an arrangement with. In this case,
the SQG or LQG would be required to make arrangements with its local
fire department, as well as with other relevant emergency responders,
such as the police department and local hospitals.
    The proposed regulatory text for this condition would state that
the generator must make arrangements with the Local Emergency Planning
Committee for the types and quantities of hazardous waste handled at
the site, as well as the potential need for the services of the local
police department, other emergency response teams, emergency response
contractors, equipment suppliers, and local hospitals.\88\ Should there
be no Local Emergency Planning Committee, should it not respond, or
should the Local Emergency Planning Committee determine that it is not
the appropriate organization to make arrangements with, then the
generator must make arrangements with the local fire department and
other relevant emergency responders (e.g., police and hospitals).
---------------------------------------------------------------------------

    \88\ This condition is being proposed at Sec.
262.16(b)(8)(vi)(A) for SQGs and Sec.  262.256 for LQGs due to the
proposed reorganization.
---------------------------------------------------------------------------

    EPA is also proposing regulatory text that describes procedures for
how a facility that is not able to make arrangements with the LEPC
would make such arrangements with the fire department and other local
emergency services. Much of this language corresponds with the existing
standards for making arrangements with emergency responders. These
mandated steps are not necessary in the case of arrangements with the
LEPC because that group is likely to have standardized procedures of
its own to follow to make these arrangements with facilities.
    The Agency requests comment on its proposal to require an SQG or an
LQG to enter into arrangements with its LEPC unless there is no LEPC,
the LEPC does not respond, or the LEPC determines that it is not the
appropriate organization to make arrangements with, in which case the
SQG or LQG would enter into an arrangement with its local emergency
responders.
    EPA is also proposing to add new language to supplement this
condition because current Sec.  265.37(a) does not specify the
frequency that hazardous waste generators must make arrangements with
local authorities. For example, should arrangements be updated
according to a set schedule or only when modification is needed.
Considering that some SQGs and LQGs may already coordinate with their
LEPCs annually as part of their EPCRA requirements, the Agency is of
the opinion that it is not necessary to include time frames for
updating in this rule. The Agency requests comments on whether the
regulations should mandate how frequently a generator must communicate
with its LEPC or local fire department if it has not otherwise
communicated with them.
    Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. The proposed regulation would appear in the
SQG standards at Sec.  262.16(b)(8)(vi) and in the new part 262 subpart
M for LQGs at Sec.  262.256. The reorganization is discussed in section
XIII of this preamble.

    c. Documenting arrangements. As noted above, the EPA thinks it is
important for both SQGs and LQGs to make arrangements with their LEPCs.
In addition, EPA believes that documentation of these arrangements
would be useful in ensuring that generators have taken the necessary
steps to prepare for an emergency and have a clearly defined plan with
the LEPC for emergency response. Therefore, when EPA copies this
condition into part 262, EPA is proposing to modify the language to
state that the generator shall maintain records documenting the
arrangements with the Local Emergency Planning Committee, or if
appropriate, with the local fire department as well as any other
organization necessary to respond to an emergency. This documentation
may include a certified letter or any other documentation that confirms
such arrangements actively exist.
    One alternative suggested as part of the 2004 Program Evaluation of
the hazardous waste generator regulatory program would be to require
hazardous waste generators to list the emergency response agencies that
have agreed to respond in the event of an emergency with some
documentation confirming that the arrangements exist. In addition to
helping generators prepare for emergencies, documentation of these
arrangements would provide the necessary information for inspectors
when determining compliance. The Agency believes this alternative may
be the most effective approach to addressing the ambiguity that exists
with the existing regulations at Sec.  265.37(b).
    The Agency seeks comment on this proposed change to documentation,
in particular whether local ordinances already require generators to
have documentation of arrangements with local emergency response
organizations.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec.  262.16(b)(8)(vi) and in the new part 262
subpart M for LQGs at Sec.  262.256(b). The reorganization is discussed
in section XIII of this preamble.
    d. Request for comment on emergency procedures at large facilities
with internal emergency teams. Many large organizations, particularly
those that operate 24 hours a day, such as airports and military bases,
have their own emergency response capabilities. This raises the
question of whether and under what circumstances arrangements with
local authorities would not be needed to ensure effective emergency
response. The Agency seeks comment on the feasibility of providing a
waiver from requiring either an SQG or LQG to enter into arrangements
with an LEPC or, if appropriate, other local authorities when they have
24-hour on-site emergency response capabilities, particularly under
what circumstances a waiver would be granted.
3. Changes to Contingency Plan Regulations for LQGs
    Under Sec.  262.34(a)(4), LQGs are required to comply with 40 CFR
part 265 subpart D, Sec. Sec.  265.50-265.56, which describes the
regulations on contingency planning and emergency procedures. These
regulations address the purpose of the contingency plan, what it must
contain, who receives copies, how to amend the contingency plan, and
responsibilities of the facility's emergency coordinator and emergency
procedures. One important thing to note is that the owner or operator
of the facility can develop one contingency plan that meets all the
regulatory standards for the various statutory and regulatory
provisions for contingency planning:
     EPA's Oil Pollution Prevention Regulation (SPCC and
Facility Response Plan Requirements) at 40 CFR 112.7(d), 112.20, and
112.21;
     EPA's Risk Management Programs Regulation at 40 CFR part
68;
     EPA's Resource Conservation and Recovery Act Contingency
Planning Requirements at 40 CFR part 264 subpart D, 40 CFR part 265
subpart D, and 40 CFR 279.52;
     Department of Interior's Bureau of Safety and
Environmental Enforcement (BSEE) Facility Response Plan Regulation at
30 CFR part 254;
     Pipeline and Hazardous Materials Safety Administration
(PHMSA) Response Plans for Onshore Oil Pipelines at 49 CFR part 194;
     U.S. Coast Guard's (USCG) Facility Response Plan
Regulation at 33 CFR part 154 subpart F;
     OSHA's Emergency Action Plan Regulation at 29 CFR
1910.38(a);
     OSHA's Process Safety Standard at 29 CFR 1910.119; and
     OSHA's HAZWOPER Regulation at 29 CFR 1910.120.
    EPA recommends that generators base their contingency plan on the
National Response Team's Integrated Contingency Plan Guidance (One
Plan), discussed in the Federal Register on June 5, 1996, at 61 FR
28642.
    In this action, EPA is proposing three modifications to the
contingency planning regulations for generators: One is meant to
improve the ability of emergency response teams to respond to an
emergency at an LQG and the other two are technical changes to the
content of the contingency plan.
    a. Submitting a contingency plan executive summary to emergency
management authorities. The Agency is proposing to require that a new
LQG, as of the effective date of the rule, submit an executive summary
of its contingency plan to the emergency management authorities. As
part of this revision, EPA proposes to change the language of the
regulation to include LEPCs, as discussed above in section VIII.H.2.
    The current regulations at Sec.  265.53 state that a copy of the
contingency plan must be submitted to all local police departments,
fire departments, hospitals, and state and local emergency response
teams that may be called upon to provide emergency services.
    In discussions with EPA, emergency management professionals
indicated that the length of the facility contingency plans prevents
first responders from being able to fully review a facility's
contingency plan when responding to an emergency.\89\ Instead, they
need readily available information that describes what they must
confront when they arrive at the scene. Once the incident is under
control, the first responders can then review the detailed contingency
plan to determine their next steps, if applicable. Thus, the Agency
believes that a shorter document, such as an executive summary of the
contingency plan would be more effective for an emergency responder
when responding to an incident at a facility accumulating hazardous
waste. As currently happens in practice, once the incident is under
control, then the emergency responders can review the more detailed
contingency plan if necessary for long-term responses.
---------------------------------------------------------------------------

    \89\ Notes from discussion with Phil Oakes and Jim Narva,
International Association of Fire Marshalls, concerning Contingency
Planning and Emergency Response Regulations, July 2012.
---------------------------------------------------------------------------

    A review of the information required as part of a RCRA contingency
plan in Sec.  265.52, as well as information required by the local fire
department, identified certain components that would be useful in an
executive summary and EPA used this information in developing this
proposed regulation. Specifically, the Agency is proposing to require
that the following information be included in an executive summary to
assist emergency responders in the event of an incident: (1) The types/
names of hazardous wastes in layman's terms and the associated hazard
associated with each waste present at any one time (e.g., toxic paint
wastes,

spent ignitable solvent, corrosive acid); (2) the estimated maximum
amount of each waste that may be present at any one time; (3) the
identification of any hazardous wastes where exposure would require a
unique or special treatment by medical or hospital staff; (4) a map of
the site showing where hazardous wastes are generated and accumulated
and routes for accessing these wastes; (5) a street map of the facility
in relation to surrounding businesses, schools, and residential areas
to understand how best to get to the facility and also evacuate
citizens and workers; (6) the locations of water supply (e.g., fire
hydrant and its flow rate, drafting locations); (7) the identification
of on-site notification systems (e.g., a fire alarm that rings off-
site, smoke alarms); and (8) the name of the emergency coordinator and
24/7 emergency telephone number.
    EPA believes these are the appropriate elements for the executive
summary but is taking comment on them. In addition, for identification
of the hazardous waste under element (1), EPA is taking comment on
whether providing the name of the waste in layman's terms is sufficient
for ensuring that first responders will be able to identify the
appropriate actions to take in response. A reference to the material in
the North American Emergency Response Guide, where appropriate, would
likely reduce the time it takes for first responders to get the
necessary information for managing the situation. EPA is interested in
whether this type of reference would be useful to first responders and
whether generators can easily access this information to add to their
contingency plans.
    EPA is also taking comment on whether the executive summary should
add to element (3) a requirement that the generator provide information
on the medical information for exposure to those hazardous wastes that
do require special treatment. EPA is specifically interested in whether
this information is readily available to the generator to be included
in the executive summary of the contingency plan and whether first
responders would find this additional information useful for responses.
    Under the proposed condition for contingency plans at LQGs, EPA is
proposing that an LQG that becomes subject to this rule after the
rule's effective date be required to develop and submit an executive
summary of its contingency plan to the LEPC in addition to the full
contingency plan. The Agency is not proposing to require that an LQG
that has already developed and submitted a contingency plan to local
emergency responders develop an executive summary because of the
additional burden that would be imposed on existing LQGs to go back to
their contingency plans and develop this summary. The Agency has
determined that developing the executive summary during the initial
writing of the contingency plan would not be a significant extra step.
However, we recommend that an LQG that is not required to develop an
executive summary of its contingency plan may want to do so and submit
that executive summary to the LEPC when doing a periodic update on its
contingency plan to ensure that the emergency responders have the
appropriate information on hand in the event of an emergency.
    EPA, therefore, is proposing to modify the condition regarding
copies of the contingency plan to require that a copy of the
contingency plan and all revisions to the plan must be maintained at
the large quantity generator's site and the large quantity generator
must submit a copy of the contingency plan to the Local Emergency
Planning Committee. If there is no Local Emergency Planning Committee,
if it does not respond, or if the Local Emergency Planning Committee
determines that it is not the appropriate organization to make
arrangements with, the facility must then submit the copy to the local
emergency responders.
    We are proposing to list in the regulations the eight elements
described above as the most valuable items for emergency responders.
    The Agency requests comment on this proposed revision. In addition,
EPA requests comment on whether an existing LQG that has already
provided its full contingency plan should also be required to submit an
executive summary to the LEPC or, if appropriate, the fire department
or other emergency responders.
    The Agency also requests comment on whether an SQG should be
required to develop an executive summary of a contingency plan. The
major differences between the preparedness, prevention, and emergency
procedures regulations applicable to SQGs and those applicable to LQGs
are the development and implementation of a contingency plan and more
rigorous responsibilities for the LQG emergency coordinator. Realizing
that many SQGs may already have developed contingency plans to comply
with other statutory and regulatory requirements, however, many of the
elements of an executive summary may already be available and that the
only addition would be summary information on the types and quantities
of hazardous waste on site, their associated risks, and their location
within the facility. Therefore, requiring SQGs to provide an executive
summary of a contingency plan to first responders could provide
information that is critical during emergencies with little extra
effort by the SQGs.
    Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. These proposed regulations would appear in the
new part 262 subpart M for LQGs at Sec. Sec.  262.261 and 262.262. The
reorganization is discussed in section XIII of this preamble.
    b. Eliminating employee personal information in LQG contingency
plans. As stated above, the condition for exemption for LQGs at Sec.
262.34(a)(4) references part 265 subpart D, which includes a list of
what the contingency plan must contain. The Agency is also proposing to
modify the language currently at Sec.  265.52(d) when it is copied into
part 262 to now allow an LQG the flexibility to eliminate unnecessary
employee personal information that is currently required in the
contingency plan. This would protect those individuals' privacy, but
still provide necessary information to address emergencies. Section
265.52(d) currently states that the plan must list names, addresses,
and phone numbers (office and home) of all persons qualified to act as
emergency coordinator (see Sec.  265.55), and requires that this list
be kept up to date. It specifies that where more than one person is
listed, one must be named as primary emergency coordinator and others
must be listed in the order in which they will assume responsibility as
alternates. The proposed revision would remove the unnecessary
references to addresses in this language and change the reference to
home and office telephone numbers to ``emergency telephone number.''
    Also as part of this revision, the Agency is proposing revisions to
address situations where the facility has an emergency coordinator on
duty 24 hours every day of the week. In those situations, the plan may
list the staffed position (e.g., operations manager, shift coordinator,
shift operations supervisor), as well as an emergency telephone number
that can be guaranteed to be answered 24 hours a day, 7 days a week,
365 days a year. The EPA proposes to add language stating that in
situations where the generator site has an emergency coordinator
continuously on duty because it operates 24 hours per day, every day of
the year, the plan may list the staffed position (e.g., operations
manager, shift coordinator, shift operations supervisor,

or some other similar position) as well as an emergency telephone
number that can be guaranteed to be answered at all times.
    The Agency requests comment on this proposed modification.
    Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. The proposed regulation would appear in the
new part 262 subpart M for LQGs at Sec.  262.261(d). The reorganization
is discussed in section XIII of this preamble.
    c. Request for comment to include alternative evacuation routes in
contingency plan (40 CFR 265.52(f)). The Agency also requests comment
on modifying the condition on alternative evacuation routes in a
contingency plan, currently found at Sec.  265.52(f). This paragraph
currently states that the plan must include an evacuation plan for
facility personnel where there is a possibility that evacuation could
be necessary and that this plan must describe signal(s) to be used to
begin evacuation, evacuation routes, and alternate evacuation routes
(in cases where the primary routes could be blocked by releases of
hazardous waste or fires).
    At issue is whether a contingency plan must contain information
about alternative evacuation routes or whether a different approach for
addressing alternative evacuation routes would be more effective. As
part of the 2004 Program Evaluation of the hazardous waste generator
regulatory program, the Agency received a comment stating that it does
not make sense to include in the contingency plan the hundreds of
possible evacuation routes that may be present at a facility depending
on its configuration. The commenter argued that the regulation should
be modified to require that evacuation routes be posted and drills be
conducted but that the regulations should not require the routes to be
in the contingency plan.\90\
---------------------------------------------------------------------------

    \90\ Summary of Hazardous Waste Generator Regulatory Program
Evaluation, November 2004. See also public comments in Docket ID No.
RCRA-2003-0014.
---------------------------------------------------------------------------

    The Agency does not believe the current regulation requires all
potential evacuation routes be identified and believes emergency
responders may need this type of information in order to determine the
most efficient and timely approach to reach the facility, which raises
the question of whether the regulation should be modified in this way.
However, the Agency seeks comment on whether the commenter's proposal
to require the posting of evacuation routes and holding annual
evacuation training and drills would be an effective substitute to
maintaining alternative evacuation routes in the contingency plan. The
Agency also seeks comment on whether this paragraph of the regulations
should discuss shelter-in-place as part of contingency plans.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. Under the reorganization, the proposed
regulation would appear in the new part 262 subpart M for LQGs at Sec.
262.261(f). The reorganization is discussed in section XIII of this
preamble.
    d. Request for comment on the usefulness of a potential electronic
RCRA contingency planning application.
    The Agency requests comment on whether contingency plans should be
submitted electronically to emergency responders to enhance their
ability to respond safely and effectively to an emergency at an LQG and
what EPA's role should be in electronic submittals. Currently EPA makes
numerous electronic databases and tools available for helping first
responders with emergency management. These tools include CAMEO
(Computer-Aided Management of Emergency Operations), which assists with
data management requirements under EPCRA, such as the required annual
submittal of an Emergency Hazardous Chemical Inventory Form to the
LEPC. EPA is taking comment on whether an additional tool to manage
contingency plans under RCRA would be a useful addition to this
software suite and whether it would assist LEPCs by integrating the
contingency plan with their existing data on facilities, making the
information available to the first responders in the most usable way.
    Specifically, we request comment on the feasibility and
effectiveness of private sector parties or non-profit or governmental
entities developing software that LQGs could use to provide important
information to emergency responders in responding to an emergency.
Building on the concept of a standard list of information to be
included in a contingency plan executive summary that was discussed
above, private sector or non-profit parties could design electronic
software to identify the appropriate information emergency responders
quickly need to assess an emergency. In turn, LQGs would then input
that information into the application and provide that information to
their local LEPC or emergency response organization for use should an
emergency arise. The objective would be to allow emergency responders
to more quickly and effectively analyze and respond to emergencies
rather than having to review a lengthy document.
4. Technical Changes Applicable to Both SQGs and LQGs
    The Agency is proposing two additional clarifications and
modifications to the existing preparedness, prevention, and emergency
procedures regulations for SQGs and LQGs and is taking comment on one
more.
    The Agency is proposing revisions based on 30 years of experience
with these rules, feedback from stakeholders as part of the Agency's
2004 Program Evaluation of the hazardous waste generator regulatory
program and discussions and communication with stakeholders. EPA
believes these clarifications will foster improved compliance without
adversely affecting the protection of human health and the environment.
    a. Proposed technical changes to introductory paragraph on required
equipment. Sections 262.34(a)(4) and (d)(4) include the condition that
LQGs and SQGs comply with part 265 subpart C, which includes Sec.
265.32. Section 265.32 requires that all facilities must be equipped
with certain types of equipment unless none of the hazards posed by
waste handled at the facility could require that particular kind of
equipment. The paragraph goes on to list required equipment such as an
internal communications system, a telephone or radio, fire
extinguishers, and access to adequate water. The existing regulation is
not clear as to whether the required equipment must be placed in those
areas of operation where hazardous waste is generated and accumulated,
(or treated, stored and disposed in the case of an interim status TSDF)
or whether other parts of the facility could store this equipment--that
is, where hazardous waste is not generated or accumulated.
    The Agency believes it may not always be appropriate or safe to
have this equipment stored in the actual waste generation or
accumulation area and instead, we are proposing that the regulation
state that the hazardous waste generator should have this equipment
located where it can be immediately accessed without jeopardizing a
timely and effective response to any emergency. For example, the waste
generation area may be in an enclosed room. Should a fire occur in the
enclosed room, it might be more appropriate to exit the room and call
the fire department rather than stay inside and be exposed to smoke
inhalation and other risks. EPA believes

the existing regulatory text should be revised to explain that while
this equipment applies to only those areas applicable to the generation
and accumulation (and treatment, as appropriate) of hazardous waste,
the generator has the flexibility to store this equipment in other
areas of the facility to address those situations where it is
infeasible or inappropriate for safety reasons to have the equipment
immediately next to hazardous waste generation and accumulation areas.
    Therefore, EPA is proposing to modify the introductory paragraph to
provide generators subject to subpart C of part 265 the flexibility to
determine the most appropriate locations within the facility to locate
equipment necessary to prepare for and respond to emergencies.
    The proposed regulation would state that all areas where hazardous
waste is either generated or accumulated must be equipped with the
listed types of equipment (unless none of the hazards posed by waste
handled at the site could require a particular kind of equipment or the
actual waste generation or accumulation area does not lend itself for
safety reasons to have a particular kind of equipment). It would also
state that a generator may determine the most appropriate locations
within its generator site to locate equipment necessary to prepare for
and respond to emergencies.
    The Agency requests comment on its proposal to modify Sec.  265.32.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec.  262.16(b)(8)(ii) with some changes to make
it specific to SQGs and in the new part 262 subpart M for LQGs at Sec.
262.252. The reorganization is discussed in section XIII of this
preamble.
    b. The meaning of ``immediate access.'' Sections 262.34(a)(4) and
(d)(4) include the condition that LQGs and SQGs comply with part 265
subpart C, which also includes Sec.  265.34. Section 265.34(a) states
that whenever hazardous waste is being poured, mixed, spread, or
otherwise handled, all personnel involved in the operation must have
immediate access to an internal alarm or emergency communication
device, either directly or through visual or voice contact with another
employee, unless such a device is not required under Sec.  265.32. At
issue is whether the phrase ``immediate access'' is clearly understood
or whether additional clarity is necessary. As part of the Agency's
2004 Program Evaluation of the hazardous waste generator program,
stakeholders raised a concern about whether the regulated community has
a sufficient understanding about what this phrase means and we are
proposing to address that concern here.
    In the interest of clarity, the Agency is proposing to modify this
language to read, ``immediate access (e.g., direct or unimpeded
access).'' The Agency believes that adding this parenthetical example
provides further guidance on the meaning of ``immediate access.'' This
phrase is used again in the next paragraph in a similar context and EPA
is proposing to add the words ``(direct or unimpeded access)'' in that
case as well.
    The Agency requests comment on the usefulness of modifying this
language.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec.  262.16(b)(8)(iv) and in the new part 262
subpart M for LQGs at Sec.  262.254. The reorganization is discussed in
section XIII of this preamble.
5. Technical Changes Applicable to SQGs
    Current preparedness and prevention standards for SQGs are found at
Sec.  262.34(d)(5). SQGs must comply with the following:
     Sec.  262.34(d)(5)(i)--have at least one employee either
on the premises or on call with the responsibility for coordinating all
emergency response measures (e.g., the emergency coordinator);
     Sec.  262.34(d)(5)(ii)--post specified information next to
the telephone, including the name and telephone number of the emergency
coordinator; the location of fire extinguishers and spill control
material, and, if present, fire alarm; and the telephone number of the
fire department, unless the facility has a direct alarm;
     Sec.  262.34(d)(5)(iii)-- ensure that all employees are
thoroughly familiar with proper waste handling and emergency
procedures, relevant to their responsibilities during normal facility
operations and emergencies; and
     Sec.  262.34(d)(5)(iv)-- have the emergency coordinator or
his designee follow the specified procedures in the event of a fire,
spill, or explosion.
    EPA is proposing changes to two of these provisions.
    a. Require certain information be posted ``next to the telephone''
(40 CFR 262.34(d)(5)(ii)). The Agency is proposing to revise Sec.
262.34(d)(5)(ii) in order to facilitate improved compliance on the part
of SQGs. This language requires, among other items, that certain
information be posted ``next to the telephone,'' such as the name and
telephone number of the emergency coordinator and the location of fire
extinguishers and spill control material. Based on experience and
feedback received from the regulatory community, the Agency believes it
is unclear in this description where in the facility this information
should be posted. A facility may have many operations and components
that have no relationship with the generation and accumulation of
hazardous waste.
    Stakeholders have recommended deletion of Sec.  262.34(d)(5)(ii)
because, in this age of near-universal 911 availability, they state it
is simply not important from a regulatory point of view to have
emergency telephone numbers posted. They argue that locations of fire
extinguishers, spill control material, fire alarms, etc., should be
conveyed to relevant employees and displayed in a worker break area
rather than the facility office and that posting the name and telephone
number of the emergency coordinator is also not necessary. For the
majority of the SQG universe, the emergency coordinator is the owner or
shop supervisor.\91\
---------------------------------------------------------------------------

    \91\ Summary of Hazardous Waste Generator Regulatory Program
Evaluation, November 2004. See also public comments in Docket ID No.
RCRA-2003-0014.
---------------------------------------------------------------------------

    EPA disagrees with eliminating this provision because we believe
that posting this information is important for workers and others to
have readily available information so that they would know what to do
and where to go in the case of an emergency. However, the Agency
believes that the regulation should be modified to state clearly that
the pertinent information should be posted where hazardous waste is
generated and accumulated, since facility personnel can quickly seek
assistance from it there.
    Also unstated is whether the telephone number refers to the
emergency coordinator's home phone or business phone. Over the years
the Agency has received requests that we modify this provision to
ensure that personal information not be used or distributed,
particularly to individuals or organizations that could use such
information to cause harm to the individual.\92\ With cell phones and
other means of instant communication now prevalent, EPA is proposing to
clarify this provision to provide the hazardous waste generator with
the necessary flexibility to allow its emergency coordinator to perform
specified responsibilities effectively

using the emergency telephone number of the emergency coordinator.
---------------------------------------------------------------------------

    \92\ Letter to Jim O'Leary from Derek Swick, American Petroleum
Institute, September 28, 2011.
---------------------------------------------------------------------------

    Therefore, EPA is proposing that Sec.  262.34(d)(5)(ii) be modified
to state that the small quantity generator must post the name and
emergency telephone number of the emergency coordinator next to
telephones or in areas directly involved in the generation and
accumulation of hazardous waste. Section 262.34(d)(5)(ii)(B) and (C)
are unchanged.
    EPA requests comment on this proposed change.
    Effect of the Reorganization: This section is affected by the
reorganization and would move to Sec.  262.16(b)(9)(ii)(A). The
reorganization is discussed in section XIII of this preamble.
    b. Allow containment and cleanup to be conducted by a contractor
(40 CFR 262.34(d)(5)(iv)(B)). Section 262.34(d)(5)(iv)(B) currently
reads, ``In the event of a spill, contain the flow of hazardous waste
to the extent possible, and as soon as is practicable, clean up the
hazardous waste and any contaminated materials or soil.'' If such a
spill were considered an emergency under OSHA's regulations in 29 CFR
1910.120, an SQG would be required to take a minimum of eight hours of
initial training with an annual refresher, and in certain circumstances
additional hours of training. Feedback from stakeholders suggests that
most SQGs would hire a spill cleanup contractor to provide such
services, if needed, rather than train employees to perform the
response. We would agree that allowing an SQG to hire a contractor that
is trained to address hazardous waste spills would certainly be
appropriate. However, the regulations in Sec.  262.34(d)(5)(iv)(B)
arguably do not provide this flexibility.\93\
---------------------------------------------------------------------------

    \93\ Summary of Hazardous Waste Generator Regulatory Program
Evaluation, November 2004. See also public comments in Docket ID No.
RCRA-2003-0014.
---------------------------------------------------------------------------

    Therefore, the Agency is proposing to modify Sec.
262.34(d)(5)(iv)(B) and place the responsibility on the SQG to either
perform the necessary cleanup of hazardous wastes or contract out the
cleanup. The proposed language would state that in the event of a
spill, the small quantity generator is responsible for containing the
flow of hazardous waste to the extent possible, and as soon as is
practicable, cleaning up the hazardous waste and any contaminated
materials or soil. The proposal would allow such containment and
cleanup to be conducted either by the small quantity generator or by a
contractor on behalf of the small quantity generator.
    The Agency requests comment on the proposed revision to Sec.
262.34(d)(5)(iv)(B) and whether any unintended consequences arise from
providing SQGs with this flexibility.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization and would move to Sec.
262.16(b)(9)(iv)(B). The reorganization is discussed in section XIII of
this preamble.
6. Technical Changes on Personnel Training Applicable to LQGs
    The Agency is proposing to modify the condition regarding personnel
training for LQGs, currently found at Sec.  262.34(a)(4), which refers
to Sec.  265.16. The proposed modification would allow a generator to
use online computer training, in addition to classroom instruction and
on-the-job training, to complete the personnel training requirements.
Since the personnel training regulations were promulgated in the 1980s,
use of computerized training has become a common practice for
generators to teach their workers about the management of hazardous
waste. In fact, many generators already use this method for training
workers and this modification would simply bring the hazardous waste
personnel training regulations up to date with existing industry
practices.
    The proposal would modify the first sentence of this provision by
adding the words ``online training'' and would state that site
personnel must successfully complete a program of classroom
instruction, online training, or on-the-job training that teaches them
to perform their duties in a way that ensures compliance with this
part.
    The Agency requests comment on the proposed modification.
    Effect of the Proposed Reorganization: This section would be
affected by the proposed reorganization. Under the reorganization this
provision would be found at Sec.  262.17(a)(7)(i)(A). The proposed
reorganization is discussed in section XIII of this preamble.
7. Taking Comment on Applicability of Personnel Training
    The Agency seeks comment on clarifying what positions within an LQG
must be responsible for receiving training associated with the
management of hazardous waste, as well as identifying those positions
for which a written job description is necessary. Under the current
regulations, LQGs are responsible for complying with Sec.
262.34(a)(4), which references, among other technical requirements, the
personnel training provisions in Sec.  265.16. Under the proposed
reorganization discussed in section XIII, this condition for LQGs would
move into 40 CFR 262.17.
    The current regulations are not specific about which personnel at
an LQG must complete the hazardous waste training. Other than stating
that under Sec.  265.16(a)(3) personnel must be able to respond
effectively to emergencies by familiarizing them with emergency
procedures, emergency equipment, and emergency systems, no other areas
of hazardous waste management are cited.
    At issue is the scope of these training standards and the
applicability of the training provision to employees that are not
assigned to work in the 90-day accumulation areas. The Agency is
considering whether to require training and a written job description
for specific types of employees working in areas of hazardous waste
management related to 90-day accumulation areas. This clarification
would have the benefit of assisting LQGs in determining more readily
the scope of their hazardous waste training program.
    The Agency, with the assistance of staff from the states of
Vermont, Connecticut and New York,\94\ have identified the following
areas of hazardous waste management for which personnel training and a
written job description should be required: Anyone who (1) completes
and/or signs the hazardous waste manifest, (2) manages hazardous waste
in areas where hazardous wastes are accumulated, (3) maintains
hazardous waste inventory, (4) conducts daily or weekly inspections of
areas where hazardous wastes are accumulated, and (5) plans or responds
to emergencies that involve hazardous wastes.
---------------------------------------------------------------------------

    \94\ Correspondence between Steve Simoes, State of Vermont, with
Ross Bunnell and Bill Yeman, from Connecticut and New York,
respectively, a copy of which is found in the docket to this
proposal.
---------------------------------------------------------------------------

    The Agency seeks comment on whether the regulations should
specifically identify positions at LQGs where hazardous waste training
would be required and for which a written job description is necessary
and what those areas should be. In addition, the Agency seeks comment
on whether personnel involved in handling or managing hazardous wastes
in SAAs should be required to undergo hazardous waste training. Current
Agency guidance excludes staff working in satellite accumulation areas
from the training requirements.\95\ The Agency is of the

opinion that such personnel have a similar need to know the risks
associated with hazardous wastes as personnel working in central
accumulation areas.
---------------------------------------------------------------------------

    \95\ Memorandum from Robert Springer, Director of the Office of
Solid Waste to RCRA Directors, EPA Regions 1-10, ``Frequently Asked
Questions about Satellite Accumulation Areas,'' March 17, 2004, RCRA
Online 14703 http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/0ac9e15424b2897d8525770600609793!OpenDocument.
---------------------------------------------------------------------------

8. Taking Comment on Applying Emergency Planning and Procedures
Revisions to Parts 264 and 265
    The proposed revisions discussed throughout this section of the
preamble on the emergency planning and procedure regulations would only
pertain to generators, as the proposed language would be found in the
expanded generator regulations in part 262. However because many of the
preparedness and emergency procedure provisions discussed in this
section are taken from part 265 with only slight revisions, we are
taking comment on whether these same proposed revisions should also be
made in the applicable paragraphs of parts 264 and/or 265 as well to
ensure consistency between the generator regulations and those for
permitted facilities or facilities operating under interim status. The
Agency requests comment on whether these revisions for consistency
would be helpful and appropriate for facilities operating under part
264 or part 265 or whether the regulations should remain unchanged
despite the result that generators and TSDFs would be left with some
regulations that are very similar but not exactly the same.

I. Revisions to Satellite Accumulation Area Regulations for SQGs and
LQGs (40 CFR 262.34(c))

    The Agency is proposing a number of changes that would revise and
strengthen the conditions for exemption for satellite accumulation
areas (SAA) at Sec.  262.34(c). These include (1) requiring SQGs and
LQGs accumulating hazardous waste in SAAs to comply with the special
requirements for incompatible wastes found at Sec.  265.177; (2)
providing limited exceptions to the regulation requiring generators to
keep containers closed at all times; (3) strengthening the marking and
labeling standards for SAAs (note these marking and labeling changes
are the same as those proposed for containers in central accumulation
areas); (4) confirming that three days means three consecutive calendar
days, not business days; (5) providing a maximum weight for the
accumulation of acute hazardous waste in SAAs in addition to a volume;
(6) rewording the regulations for when the maximum volume or weight is
exceeded in an SAA; (7) rescinding a guidance memo regarding the
accumulation of reactive (D003) hazardous waste away from the point of
generation; and (8) providing examples in the preamble to help
generators better understand the term ``under the control of the
operator,'' which is used in the SAA regulations.
    In addition to these proposed changes, the SAA regulations would be
moved as part of the proposed reorganization. These regulations would
all be found together in Sec.  262.15. The reorganization is discussed
in section XIII of this preamble.
    Using an SAA is not required of hazardous waste generators, but the
regulations allowing them and setting the conditions for their use are
designed to assist generators who generate and accumulate small amounts
of hazardous waste in different parts of their facilities. SQGs and
LQGs, however, may choose to accumulate hazardous waste only in central
accumulation areas (CAAs) rather than SAAs or they may accumulate up to
55 gallons of non-acute hazardous waste and/or one quart of acute
hazardous waste within each facility's SAAs and once that threshold has
occurred, ship the hazardous waste to a designated facility. A
generator may also accumulate hazardous waste within an SAA(s) and
never move the waste to a CAA once the 55 gallons limit is reached, but
instead, ship the waste directly to a RCRA designated facility.
1. Requiring SQGs and LQGs to Comply with the Special Requirements for
Incompatible Wastes for Containers Accumulating Hazardous Wastes in
SAAs
    Under the current regulations in Sec.  262.34(c)(1)(i), generators
accumulating hazardous waste in SAAs must meet the conditions for
exemption, including complying with the container requirements at
Sec. Sec.  265.171, 265.172, and 265.173(a). These container
requirements include accumulating hazardous waste in containers of good
condition, ensuring the waste is compatible with, or will not react
with, the contents of the container, and ensuring that the container
accumulating hazardous waste is closed, except when it is necessary to
add or remove waste. We are proposing to modify this part of the SAA
container management standards by requiring that hazardous wastes not
be mixed or be placed in the same container with other hazardous waste
that are incompatible and could potentially result in fires,
explosions, gaseous emissions, leaching, or other discharge of
hazardous waste or hazardous waste constituents.\96\
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    \96\ See Comment in Sec.  265.177.
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    The Agency believes that in developing the regulations for SAAs, it
inadvertently failed to account for the potential for accumulating
incompatible wastes, especially since the current regulations already
prohibit placing hazardous waste in containers that it may react with
and that impair the containers ability to contain the hazardous waste.
Therefore, the Agency is proposing that SQGs and LQGs accumulating
hazardous waste in SAAs also comply with the part 265 subpart I
container management standards for incompatible hazardous wastes at
Sec.  265.177. The Agency believes most generators already are aware of
and comply with this best management practice at their SAAs since they
must comply with this regulation when they move the SAA container(s)
into a 90-day or 180-day central accumulation area.
    The Agency requests comment on this proposed modification.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1)(iii). The reorganization is discussed in section XIII of
this preamble.
2. Limited Exceptions to Keeping Containers Closed at all Times in SAAs
    As noted in the previous section, the current regulation in Sec.
262.34(c)(1)(i) for generators accumulating hazardous waste in SAAs
requires containers accumulating hazardous waste to be kept closed,
except when it is necessary to add or remove waste. The SAA regulations
reference the requirement in Sec.  265.173(a) that containers be closed
while accumulating hazardous wastes at interim status treatment,
storage and disposal facilities. We are proposing to modify this
provision from Sec.  262.34(c)(1)(i) in the new section for SAA
conditions at Sec.  262.15, but only as it pertains to SAAs; it will
not affect the requirements for container management at interim status
treatment, storage and disposal facilities. Because this modification
is only meant to apply to containers accumulating hazardous waste in
SAAs, and not to containers being stored at interim status treatment,
storage, or disposal facilities, we are proposing to modify this
requirement by eliminating the reference in the SAA regulations in part
262 to the container management standards for interim status treatment,
storage or disposal facilities at Sec.  265.173(a) and

incorporating the closed container provision directly into the SAA
regulations in Sec.  262.15, under the proposed reorganization.
    Specifically, we are proposing to modify the standard in order to
allow containers of hazardous waste in SAAs to remain open under
limited circumstances. Specifically, we are proposing that containers
of hazardous waste in SAAs may be open when it is necessary either for
the operation of equipment to which the SAA container is attached or to
prevent dangerous situations, such as the build-up of extreme pressure
or heat because closing a container can be more dangerous than keeping
it open temporarily in those situations. Stakeholders have identified
situations where keeping SAA containers closed can interfere with the
operation of equipment when the container is attached directly to the
equipment via piping or tubing. Stakeholders have also identified
situations in which closing a container can be more dangerous than
keeping it open temporarily; for example, when the hazardous waste is
very hot.
    Therefore, EPA is proposing to modify the regulations to allow
containers to be vented in such situations. However, we are also
proposing that when the danger passes (e.g., the contents cool), then
the requirement to keep the container closed applies and when the
equipment is not in operation, the requirement to keep the container
closed applies.
    As noted above, the flexibility proposed for containers to remain
open in specific situations applies only to containers in SAAs since
that is where hazardous waste initially accumulates. The Agency does
not anticipate that it is necessary to extend this flexibility to
containers of hazardous waste in central accumulation areas.
    The Agency requests comment on this proposed modification.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1)(iv). The reorganization is discussed in section XIII of
this preamble.
3. Strengthening the Marking and Labeling Provisions for Containers in
SAAs
    Currently, the regulations for SAAs in Sec.  262.34(c)(1)(ii)
require a generator to mark ``his containers either with the words
`Hazardous Waste' or with other words that identify the contents of the
containers'' [emphasis added]. The Agency is proposing two
modifications that would strengthen the labeling and marking
regulations for containers accumulating hazardous waste in SAAs. First,
EPA is proposing to change the ``or'' to an ``and'' and thus require
that generators mark containers in the SAA with both the words
``Hazardous Waste'' and other words to identify the contents of the
container that are accumulated in SAAs.
    Second, EPA is proposing that generators also indicate the hazards
of the contents of the containers. EPA believes these proposed changes
will alert workers, emergency responders, and others to the potential
hazards posed by its contents. Identifying the hazard increases
awareness to workers and others who might come into contact with the
hazardous waste container and reduces potential risks to human health
and the environment from container mismanagement. As discussed
previously in section VIII.E, these changes are similar to those
proposed for containers stored in central accumulation areas.
    Specifically, EPA is proposing to modify the marking and labeling
regulations for SAAs to require LQGs and SQGs to mark containers with
the following: (1) The words ``Hazardous Waste''; (2) other words that
identify the contents of the containers. Examples may include, but are
not limited to the name of the chemical(s), such as ``acetone'' or
``methylene dichloride,'' or the type or class of chemical, such as
``organic solvents'' or ``halogenated organic solvents'' or, as
applicable, the proper shipping name and technical name markings used
to comply with DOT requirements at 49 CFR part 172 subpart D; and (3)
an indication of the hazards of the contents of the container. Examples
of hazards include, but are not limited to, the applicable hazardous
waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic);
a hazard class label consistent with the DOT requirements at 49 CFR 172
part 172 subpart E (labeling); a label consistent with the OSHA Hazard
Communication Standard at 29 CFR 1920.1200; a chemical hazard label
consistent with the NFPA code 704; or a hazard pictogram consistent
with the United Nations' GHS. Generators also may use any other marking
and labeling commonly used nationwide in commerce that would alert
workers and emergency responders to the nature of the hazards
associated with the contents of the containers.
    The pre-transport requirements of part 262 subpart C already
require hazardous waste generators to comply with the DOT labeling/
marking requirements of 49 CFR part 172. By requiring generators to
include other words that identify the contents of the containers, the
Agency is proposing that generators perform a task that is already
required when preparing the container prior to transporting the
hazardous waste off site for subsequent waste management. In addition,
the Agency is proposing to modify the marking and labeling of
containers prior to shipping the hazardous waste. We are proposing that
SQGs and LQGs can use the DOT hazard class labels to comply with the
new labeling and marking regulation for containers in SAA.
Alternatively, they may choose another method to indicate the hazards
of the container that suits them better, as noted above.
    The Agency requests comment on these proposed changes.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1)(v). The reorganization is discussed in section XIII of
this preamble.
4. Clarify What Is Meant by ``Three Days''
    The current regulations at Sec.  262.34(c)(2) state that a
generator who accumulates either hazardous waste or acutely hazardous
waste must, with respect to that amount of excess waste, comply
``within three days'' with paragraph (a) of that section or other
applicable provisions of the chapter. The Agency is proposing to state
in the regulations that the term ``three days'' means three consecutive
calendar days, not three business days or three working days. The
Agency has already clarified this term in a memo, which was based on
preamble discussions from the proposed and final SAA
regulations.97 98 As stated in the memo, ``Originally, the
Agency had proposed to use 72 hours as the time limit but realized that
determining when 72 hours had elapsed would have required placing both
the date and time of day on containers. In the final rule the Agency
switched to using three days so that generators only need to date
containers that hold the excess of 55 gallons of non-acute hazardous
waste (or 1 quart of acute hazardous waste).''
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    \97\ Memorandum from Robert Springer, Director of EPA's Office
of Solid Waste, to RCRA Regional Directors, ``Frequently Asked
Questions About Satellite Accumulation Areas,'' March 17, 2004, RCRA
Online 14703.
    \98\ Proposed rule: January 3, 1983 48 FR 118; Final rule:
December 20, 1984; 49 FR 49569.
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    The Agency requests comment on this codification of an existing
interpretation.

    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(2)(i). The reorganization is discussed in section XIII of
this preamble.
5. Providing a Maximum Weight for the Accumulation of Acute Hazardous
Waste in Containers at SAAs
    Currently, the regulations at Sec.  262.34(c)(1) impose maximum
volumes of hazardous waste that may be accumulated in an SAA without
requiring a permit, complying with interim status standards, or
complying with the generator accumulation standards. For non-acute
hazardous waste, the maximum volume is 55 gallons. For acute hazardous
waste, the maximum volume is 1 quart. When the SAA regulations were
finalized, EPA explained that 55 gallons was selected for non-acute
hazardous waste in part because it is the size of the most commonly
used accumulation container.\99\ EPA also explained that 1 quart was
chosen for acute hazardous waste because it is the volumetric
equivalent to 1 kilogram of acute hazardous waste used elsewhere in the
regulations and commenters expressed opposition to using a weight
measure. Since then, however, stakeholders have indicated that the 1-
quart volume maximum is not a practical way to measure the accumulation
of some wastes, particularly non-liquid acute hazardous wastes.
Therefore, we are proposing to add a weight measurement to the SAA
regulations for the maximum accumulation of acute hazardous wastes.
Specifically, we are proposing that 1 quart or 1 kilogram (2.2 pounds)
of acute hazardous waste may be accumulated in an SAA. Generators that
accumulate acute hazardous waste in SAAs will have the choice of
whether to use 1 quart or 1 kilogram, but they will be required to
identify which metric they choose to use.
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    \99\ December 20, 1984; 49 FR 49569-70.
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    We are not proposing to add a similar weight equivalent to the 55-
gallon threshold for non-acute hazardous waste since stakeholders have
not expressed a similar need. However, we request comment on whether it
would be useful to have a maximum weight for the accumulation of non-
acute hazardous waste in SAAs.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1). The reorganization is discussed in section XIII of this
preamble.
6. Modifying the Language for When the Maximum Volume or Weight Is
Exceeded in an SAA
    Currently, the regulation at Sec.  262.34(c)(2) states that when
the maximum volumes are exceeded in an SAA, a generator ``must, with
respect to that amount of excess waste, comply within three days with
paragraph (a) of this section or other applicable provisions of this
chapter.'' The Agency is rewording this regulation in order to more
clearly state the generator's options for managing the materials that
exceed the limit. The proposed regulatory text states that a generator
who accumulates either non-acute hazardous waste or acute hazardous
waste listed in Sec.  261.31 or Sec.  261.33(e) in excess of the
amounts listed in paragraph (a)(1) of this section at or near any point
of generation must remove the excess from the satellite accumulation
area within three calendar days either to a central accumulation area,
an on-site interim status or permitted treatment, storage, or disposal
facility, or an off-site designated facility. Similarly, during the
three-calendar-day period the generator must continue to comply with
paragraphs (a)(1)(i) through (iv) of this section and must mark the
container(s) holding the excess accumulation of hazardous waste with
the date the excess amount began accumulating.
    The Agency does not view this as a substantive change to the SAA
regulations. Nevertheless, the Agency solicits comments on this
proposed change.
    Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(6). The reorganization is discussed in section XIII of this
preamble.
7. Rescinding a Memo Regarding Accumulating Reactive Hazardous Waste
Away From the Point of Generation
    In a memo dated January 13, 1988, EPA wrote that a storage shed
that is outside of a building where a reactive hazardous waste (D003)
is initially generated, could be considered an SAA.\100\ EPA is
proposing to revoke this interpretation. EPA acknowledges that in some
instances it is safer to accumulate hazardous waste away from the
initial point of generation, such as with hazardous wastes that are
explosive. However, because SAAs are subject to less stringent
conditions than CAAs, EPA believes it is not appropriate for such
dangerous hazardous wastes to be stored in SAAs. Rather, EPA believes
that if a generator accumulates hazardous waste that is so dangerous it
needs to be accumulated away from the point of generation, it should be
accumulated under the more rigorous accumulation standards for central
accumulation areas.
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    \100\ Letter from Marcia E. Williams, Director of EPA's Office
of Solid Waste, to Michael E. Young, Atlantic Research Corporation,
January 13, 1988, RCRA Online 11317.
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    The Agency requests comment on proposing to revoke this
interpretation of the SAA regulations.
8. Examples of the Meaning of ``Under the Control of the Operator''
    The SAA regulation at Sec.  262.34(c)(1) uses the term ``under the
control of the operator.'' EPA has not defined this term in the
regulations, nor have we discussed it in preamble or guidance letters.
However, over the years, the Agency has received inquiries about what
constitutes ``under the control of the operator.'' In an effort to
assist generators to better understand this term and to foster improved
compliance with the SAA provisions, the Agency is providing examples in
this preamble of what constitutes ``under the control of the
operator.'' For example, EPA would consider waste to be ``under the
control of the operator'' if the operator controlled access to an area,
building, or room that the SAA is in, such as with entry by access
card, key or lock box. Another example would be if the operator
accumulates waste in a locked cabinet and controlled access to the key,
even if the cabinet is stored inside a room to which access is not
controlled.
    The Agency requests comment on additional practices that would
constitute ``under the control of the operator.''

J. SQGs Accumulating Hazardous Waste on Drip Pads and in Containment
Buildings (40 CFR 262.34(d))

    EPA is proposing to modify the regulations at Sec.  262.34(d) to
require SQGs that accumulate hazardous waste for 90 days or less on
drip pads without a permit or interim status to comply with the
technical standards of 40 CFR part 265 subpart W and with all other
conditions for an exemption associated with the accumulation of
hazardous waste by an SQG.
    Additionally, EPA is proposing to modify the conditions for an
exemption currently at Sec.  262.34(d) to require SQGs that accumulate
hazardous waste for 90 days or less in a containment building

without a permit or interim status to comply with the technical
standards of 40 CFR part 265 subpart DD and with all other conditions