were outside the scope of the narrow and specific change that we
proposed to subpart K. Although we are not legally obligated to respond
to comments outside the scope of the proposal, in this case we are
choosing to respond to certain comments in order for EPA to better
explain the existing subpart K regulations and some common
misunderstandings about them.
    Many academic institutions indicated that they are not able to opt
into subpart K because they are in states that have not adopted subpart
K. Since subpart K was finalized in 2008, EPA has made an effort to
track which states have adopted the rule. At this point, subpart K is
effective in approximately 22 states.\92\ Additional states have told
EPA they are in the process of adoption. Some of the states that have
not adopted subpart K have told EPA it is because the colleges and
universities in their state have not expressed an interest in opting
into the rule, so they didn't see the need to go through the process of
adopting and becoming authorized for this regulation. Few, if any,
states have expressed an outright opposition to adopting subpart K. EPA
strongly encourages the states that have not adopted subpart K to do
so; however, we do not have the authority to mandate or compel them to
adopt this rule, as it was not deemed more stringent than the standard
generator regulations.
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    \92\ http://www.epa.gov/hwgenerators/where-managing-hazardous-waste-academic-laboratories-rule-effect.
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    Another common theme from the commenters was that subpart K, which
was designed for laboratory operations, should apply across the
academic institution, and not just to laboratories. Commenters argue
that opting into subpart K obligates the institution to operate under
more than one set of RCRA regulations at the same institution. However,
EPA maintains that academic institutions most likely have been
operating under more than one set of RCRA regulations for some time,
including used oil regulations for the maintenance of their motor
vehicle fleets, and universal waste for their fluorescent bulbs.
Furthermore, EPA's engagement with academia over the past 25 years has
always been limited to the management of hazardous waste from
laboratories. This includes the Laboratories eXcellence and Leadership
program (XL Project), as well as the pilot project led by the Howard
Hughes Medical Institute (HHMI) to develop and implement a performance-
based approach to the management of laboratory waste at ten colleges
and universities. These efforts regarding hazardous waste were targeted
at laboratories because of the way in which hazardous wastes are
generated in laboratories: There are a large number of waste streams
that vary over time and the wastes are often generated by students, who
lack the training and accountability of a professional

workforce. For that reason, at no point in developing subpart K did EPA
ever indicate it was considering a hazardous waste regulation that
would apply to the entire academic institution.
    Finally, in its comments, the Campus Safety Health and
Environmental Management Association (CSHEMA) offered to lead a
dialogue with EPA about how to make subpart K more useful to the
academic sector.\93\ EPA spent considerable time and resources
addressing the needs of the academic community when it developed
subpart K. EPA believes that before we enter into additional dialogue
on this regulation, more states need to adopt it and more colleges and
universities need to opt into it so that data on the rule and its
effects are available.
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    \93\ EPA-HQ-RCRA-2012-0121-0158.
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    Effect of the Reorganization: This section is not affected by the
reorganization.

P. Deletion of Performance Track and Project XL Regulations

    EPA launched the National Environmental Performance Track in 2000
to provide regulatory and administrative benefits to Performance Track
members. Performance Track was a public-private partnership that
encouraged continuous environmental improvement through use of
environmental management systems, community outreach, and measurable
results. In order to provide regulatory benefits to members, EPA made
changes to the RCRA hazardous waste regulations, among others, that
specifically referenced members of Performance Track.
    EPA terminated the Performance Track program in 2009. Therefore,
EPA is removing obsolete references to Performance Track in the RCRA
hazardous waste regulations as a part of this rulemaking. In some
cases, a whole paragraph of regulation will be removed and in other
instances we will remove just the part of the paragraph that references
Performance Track. The deleted paragraphs will be reserved to reduce
the possibility of confusion by replacing them with other regulations.
The following references are being removed:
     Sec.  260.10: definition of Performance Track member
facility;
     Sec.  262.34(j), (k), and (l): regulations for
accumulation of hazardous waste by LQGs in Performance Track;
     Sec.  262.211(c): two parenthetical references to Sec.
262.34 (j) and (k) in the regulations for academic labs in subpart K of
part 262;
     Sec. Sec.  264.15(b)(4) and 265.15(b)(4): references to
the requirements for inspection of areas of the facility subject to
spills in Sec. Sec.  264.15(b)(5) and 265.15(b)(5), respectively;
     Sec. Sec.  264.15(b)(5) and 265.15(b)(5): requirements for
Performance Track member facilities that reduce inspection frequency
for areas subject to spills;
     Sec. Sec.  264.174 and 265.174: references to Performance
Track requirements for inspections of areas where containers are
stored;
     Sec. Sec.  264.195(e), 265.195(d), and 265.201(e):
requirements for Performance Track member facilities for inspections of
tank systems;
     Sec. Sec.  264.1101(c)(4) and 265.1101(c)(4): requirements
for Performance Track member facilities for reduced inspections of
containment buildings;
     Sec.  270.42(l): procedures for permit modifications for
Performance Track member facilities; and
     Appendix 1 to Sec.  270.42--Classification of Permit
Modification, Section O.1: Indication that a permit modification for
reduced inspections for a Performance Track member facility is a Class
1 permit modification.
    These provisions were added to the regulations in the National
Environmental Performance Track Program final rule, dated April 22,
2004 (69 FR 21737), the Resource Conservation and Recovery Act Burden
Reduction Initiative final rule, dated April 4, 2006 (71 FR 16862), and
the Academic Laboratories final rule, dated December 1, 2008 (73 FR
72912).
    EPA is also removing references to Project XL programs that have
been discontinued. These include the New York State Public Utilities
Project XL program at subpart I of 40 CFR part 262 and the Laboratories
Project XL program at subpart J of 40 CFR part 262. The New York State
Public Utilities Project XL piloted a program to allow public utilities
located in New York State to consolidate at central collection
facilities hazardous wastes generated at remote locations. The
Laboratory XL Project was created for Boston College, the University of
Massachusetts, and the University of Vermont, and was finalized in the
Federal Register on September 28, 1999 (64 FR 53292). The Laboratories
Project XL piloted an alternate hazardous waste management system for
college and university laboratories. Originally, the program was to
expire on September 30, 2003. On June 21, 2006, EPA extended the
program to April 15, 2009 (71 FR 35550). Now that the program has now
expired, EPA is removing paragraph (j) from Sec.  262.10, as well as
part 262 subpart J. We have also removed and reserved the reference at
Sec.  262.10(j) to the University Laboratories Project XL.
    Effect of the Reorganization: This section is not affected by the
reorganization.
X. Addition to 40 CFR Part 262 for Generators That Temporarily Change
Generator Category as a Result of an Episodic Event

A. Introduction

    EPA is finalizing the revisions to the generator regulations that
allow a VSQG or an SQG to maintain its existing generator category if,
as a result of a planned or unplanned episodic event, the generator
would generate a quantity of hazardous waste in a calendar month
sufficient to cause the facility to move into a more stringent
generator category (i.e., VSQG to either an SQG or an LQG; or an SQG to
an LQG). This revision allows a VSQG or an SQG to generate additional
quantities of hazardous waste--exceeding its normal generator category
limits temporarily--and still maintain its existing generator category,
provided it complies with the specified conditions. Because these
events are considered to be temporary and episodic in nature, the
hazardous waste generator may only use this provision once every
calendar year, unless there is a second event for which the generator
receives approval from EPA to manage as an additional episodic
event.\94\
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    \94\ Note that when a state begins implementing this provision
as part of its authorized RCRA program, all petitions and approvals
are managed by the authorized state rather than EPA.
---------------------------------------------------------------------------

    Under the RCRA regulatory framework for hazardous waste generators,
a generator's category is determined by the quantity of hazardous waste
it generates in a calendar month. As described in the proposed
rulemaking at 80 FR 57972, at issue is when the generator generates an
additional quantity of hazardous waste in a calendar month as a result
of an episodic event--planned or unplanned--only to revert back to its
normal waste generation quantities in the following month. For example,
one such event would be if a VSQG plans a short-term demolition project
that generates an additional 500 kilograms of hazardous waste in the
calendar month, resulting in the VSQG becoming an SQG for that calendar
month. However, once the demolition project has been completed, the
generator's waste generation drops such that it again qualifies as a
VSQG. Other examples of planned episodic events include tank cleanouts,
short-term construction projects, short-term site remediation,

equipment maintenance during plant shutdowns, and removal of excess
chemical inventories. Unplanned episodic events, which EPA expects
would be less frequent, include production process upsets, product
recalls, accidental spills, or ``acts of nature,'' such as a tornado,
hurricane, or flood.
    EPA has determined that requiring a VSQG to comply with the
additional SQG or LQG regulations or an SQG to comply with the LQG
regulations for the month its hazardous waste exceeded the quantity
limits based on an episodic event (planned or unplanned) is unnecessary
to protect human health and the environment. Instead, the Agency is
finalizing the more practical approach laid out in the proposed rule to
ease compliance for episodic generators and still protect human health
and the environment, with some minor changes. By complying with the
specified conditions, the generator would be able to maintain its
current generator category and would not be required to comply with the
more stringent site-wide regulations applicable to the higher generator
category. EPA currently estimates that approximately 1,270 to 2,540
generators may take advantage of this provision once it is adopted by
the authorized states.\95\
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    \95\ See the docket for the Regulatory Impact Assessment of the
Potential costs, Benefits, and Other Impacts of the Final Hazardous
Waste Generator Improvements Rule.
---------------------------------------------------------------------------

B. What is EPA finalizing?

    Under the final rule, a VSQG or an SQG generating an increased
quantity of hazardous waste because of an episodic event that results
in a temporary change in a generator's category would be able to
maintain its existing generator category, provided specified conditions
are met. EPA has determined that these conditions will be sufficient to
ensure these additional hazardous wastes are managed in an
environmentally sound manner. Like the general framework of the
regulations for generators, should a VSQG fail to meet the specified
conditions, it loses the VSQG exemption and becomes the operator of a
non-exempt storage facility unless it also immediately complies with
all of the conditions for exemption for an SQG or LQG. If an SQG fails
to meet any specified condition for exemption, it loses its exemption
and becomes the operator of a non-exempt storage facility unless it
immediately complies with all of the conditions for an exemption for an
LQG.
    For both VSQGs and SQGs taking advantage of this provision, the
following conditions must be met: (1) Episodic events are limited to
one per calendar year; (2) the generator must notify EPA at least 30
calendar days prior to initiating a planned episodic event or within 72
hours after an unplanned episodic event; the generator must identify
the start and end dates of the episodic event, which may be no more
than 60 days apart, as well as other information about the event; and
identify a facility contact and/or emergency coordinator with 24-hour
telephone access to discuss notification submittal or respond to an
emergency related to the episodic event; (3) the generator must obtain
an EPA ID number (VSQGs); (4) the generator must comply with specified
hazardous waste management conditions as the waste is accumulated on
site; (5) the generator must use a hazardous waste manifest and
hazardous waste transporter to ship the waste generated by the episodic
event to a RCRA-designated facility within 60 calendar days from the
start of the episodic event; and (6) the generator must complete and
maintain specified records.
    EPA is also finalizing a petition process at Sec.  262.233 to allow
hazardous waste generators to request from EPA one additional episodic
event within the same calendar year to cover the possibility that a
generator could face an unplanned episodic event in the same year it is
conducting a planned event. The regulations for episodic generators are
found in a new part 262 subpart L, Sec. Sec.  262.230-262.233.
1. Number of Episodic Events per Calendar Year
    Under the episodic generator provisions in subpart L, a VSQG or an
SQG may exceed its generator category limits only once per calendar
year without affecting its generator category, with the opportunity to
petition EPA for a second event. EPA has several reasons for this
restriction. First, if a VSQG or SQG exceeds its generator category
limits more frequently than once per calendar year, EPA is concerned
that these generators are more likely to be routinely generating
greater amounts of hazardous waste and thus it is more appropriate for
the generator to comply with the regulations applicable to the higher
generator category, at least for the months they exceed the quantity
limits for their generator category.
    Second, EPA believes most hazardous waste generators experience an
episodic event infrequently, such as once every few years, and these
events are typically planned maintenance projects. Third, the Agency is
not limiting an episodic event to a single project within the
generator's facility. In fact, a generator could start and complete
multiple projects (e.g., a small demolition project, a tank cleanout,
and removal of excess chemicals) at different dates within the 60-day
time limit, so long as all projects are completed within the 60-day
start and end dates identified on the notification form. Under that
scenario, all hazardous waste generated would be considered part of the
same episodic event.
2. Notification
    A VSQG or an SQG must notify EPA no later than 30 days prior to
initiating a planned episodic event using EPA Form 8700-12 (Site ID
form). Subsequent to the publication of this final rule, EPA will be
revising form 8700-12 to account for the new rule provisions, but in
the meantime, we will issue guidance on how to use the form in its
current state to make this notification. The hazardous waste generator
must identify the dates the episodic event will begin and end--a time
frame not to exceed 60 calendar days--as well as describe the reason
for the event and the types and estimated quantities of hazardous
wastes that would be generated during the event.
    For a generator's first event in a calendar year, the episodic
event begins on the date identified on its form 8700-12. The date
identified on the notification form as the start date for the episodic
event is assumed to be the date of the release or the date the
generator initiates physical action in generating and accumulating the
hazardous waste. Whether such action actually occurs on that date or
after by the generator will have no impact in changing the end date of
the episodic event identified on the notification form. The end date
must be no later than 60 calendar days from the date identified on the
notification form as the start date of the episodic event.
    If the generator does not know the exact day the event will end at
the time of notification, it can notify using an end date that is 60
calendar days from the start of the event as long as it ensures that
all hazardous waste from the episodic event is shipped off site by that
date.
    Should an unplanned event occur, the generator must notify EPA
within 72 hours via phone or email, and subsequently submit EPA Form
8700-12 (Site ID form) with the same information laid out above for a
planned event. In the case of spills of hazardous materials, a 72-hour
time frame for reporting the spill to the authorities is common and
allows the facility some time to evaluate

the situation before requesting the episodic event. A facility would
have to wait for EPA to respond to the petition for a second event, but
this should not impact the initial steps that the generator has to take
to appropriately manage the hazardous waste since those standards still
apply.
3. EPA ID Number
    A VSQG generating and accumulating quantities of hazardous waste
using the episodic event provisions to manage hazardous waste must
obtain an EPA ID number using EPA Form 8700-12 if one has not
previously been assigned. A generator cannot initiate a hazardous waste
shipment to a RCRA-designated facility without an EPA ID number. (SQGs
are already required to obtain an EPA ID number.)
4. Waste Management Standards
    a. Accumulation standards for VSQGs. Under the standard generator
regulations, a VSQG must not accumulate more than 1,000 kilograms of
non-acute hazardous waste at any one time, but otherwise does not have
any on-site waste management standards when accumulating hazardous
waste, primarily because the quantities generated every month are so
small. However, EPA is finalizing that a VSQG generating episodic
hazardous waste that would otherwise cause the VSQG to exceed its
generator category limit for the calendar month must comply with the
following accumulation standards for containers and tanks that manage
the episodic wastes. EPA believes these standards are necessary because
the quantity of hazardous waste that is accumulated during this
episodic period requires standards for safe management in order to
adequately protect human health and the environment.
    When accumulating hazardous waste in containers, the VSQG would be
required to mark or label its containers with the following: (1) The
words ``Episodic Hazardous Waste'' and (2) an indication of the hazards
of the contents of the container--examples of hazards include, but are
not limited to, the applicable hazardous waste characteristic(s) (i.e.,
ignitable, corrosive, reactive, toxic). In the case of hazardous wastes
ultimately treated and disposed of off site, the generator could use
hazard communication consistent with the DOT requirements at 49 CFR
part 172 subpart E (labeling) or subpart F (placarding), use a hazard
statement or pictogram consistent with the OSHA Hazard Communication
Standard at 29 CFR 1910.1200, or use a chemical hazard label consistent
with the NFPA code 704. These marking standards are the same as those
for LQGs and SQGs accumulating hazardous wastes in containers in the
course of normal business operations and are necessary to protect human
health and the environment. In addition to these, the VSQG must mark
the date that the episodic event began clearly on each container.
    For tanks, the VSQG must mark or label the tank containing
hazardous waste accumulated during the event with the words ``Episodic
Hazardous Waste'' and would be required to use inventory logs,
monitoring equipment, or other records to identify the associated
hazards and to identify the date that the episodic event began. The
records containing this information must be on site and available for
inspection.
    In addition, the generator must manage the hazardous waste in a
manner that minimizes the possibility of an accident or release.
Management standards are critical to ensure the hazardous waste does
not pose a risk to human health and the environment. A VSQG may use
best management practices to comply with this condition. In practice,
this includes managing the hazardous waste in containers that are in
good condition and chemically compatible with any hazardous waste
accumulated therein and keeping the containers closed except to add or
remove waste. Complying with the standards in part 265 subpart I would
satisfy this condition.
    If a VSQG is managing episodic hazardous waste in tanks, the
following standards must be followed: (1) Having procedures in place to
prevent overflow (e.g., the tank is equipped with a means to stop
inflow with a system such as a waste feed cutoff system or bypass
system to a standby tank when hazardous waste is continuously fed into
the tank); (2) inspecting the tank(s) at least once each operating day
during the episodic event to ensure all applicable discharge control
equipment, such as waste feed cutoff systems, bypass systems, and
drainage systems, are in good working order and (3) using appropriate
controls and practices to prevent spills and overflows from tank or
secondary containment systems including, at a minimum, spill prevention
controls (e.g., check valves, dry disconnect couplings); overfill
prevention controls (e.g., level sensing devices, high level alarms,
automatic feed cutoff, or bypass to a standby tank); and maintenance of
sufficient freeboard in uncovered tanks to prevent overtopping by wave
or wind action or by precipitation. For tank management, such practices
are necessary to prevent the release of the hazardous waste or
hazardous constituents to air, soil, or water, which could threaten
human health and the environment.
    As mentioned already, an emergency coordinator (in compliance with
Sec.  262.16(b)(9)(i)) must be identified for the duration of the
episodic event on the notification form. An emergency coordinator is
needed because the VSQG will be generating greater amounts of hazardous
waste than normal and, should an accident occur, the emergency
coordinator would need to be prepared to handle the situation.
    Under the management standards for VSQGs, the generator may not
treat hazardous waste generated on site, except in an on-site
elementary neutralization unit.\96\ After considering the comments on
treatment by VSQGs managing hazardous waste under an episodic event,
EPA has determined that the same standards should apply and VSQGs may
not treat hazardous waste on site under an episodic event. Although
VSQGs must meet some additional waste management requirements for an
episodic event, the provisions allowing treatment by SQGs and LQGs in
containers and tanks were based on those containers meeting the more
extensive standards that containers and tanks at TSDFs must meet in
subparts I and J of parts 264 and 265.\97\ These same standards still
apply to SQGs and LQGs, though they have been copied into part 262 as a
part of the reorganization in this final rule. However, under the
episodic generation provisions, VSQGs holding an episodic event do not
have to meet these same standards for waste management--they must meet
a performance standard instead. EPA believes that the performance
standard is appropriate for accumulating that waste on site for 60 days
or less until it is sent off site for treatment or disposal, but is not
appropriate for treatment on site by the VSQG. Several commenters
argued that VSQGs are sophisticated facilities with the capability to
safely treat, but EPA must design the regulations to be protective and
not based solely on the

most sophisticated actors. If a sophisticated VSQG wants to perform
generator treatment, it can choose to operate as an SQG and meet the
standards that apply to that category.
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    \96\ Elementary neutralization units, as defined in Sec.
260.10, are exempt from RCRA treatment, storage, and disposal
standards and permitting requirements. The elementary neutralization
unit exclusion does not preclude a VSQG from treating waste in the
exempt unit as long as the generator meets the criteria outlined in
Sec. Sec.  264.1(g)(6), 265.1(c)(10), and 270.1(c)(2)(v).
Specifically, the elementary neutralization unit must meet the
definition of a container, tank, tank system, transport vehicle, or
vessel, and must be used for neutralizing wastes that are hazardous
only because of the corrosivity characteristic. RCRA Hotline Q & A,
February 1996, RCRA Online 13778.
    \97\ 51 FR 10168, March 24, 1986.
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    b. Manifest use by VSQGs and management at a RCRA-designated
facility. When holding an episodic event and operating under the
provisions of subpart L, VSQGs must manifest the hazardous waste
generated from the episodic event and send it to a RCRA-designated
facility. Generally, VSQGs are not required to manifest their hazardous
waste to a RCRA-designated facility, but can ship them without a
manifest to one of eight types of facilities listed in Sec.
262.14(a)(5). However, because the VSQG will be generating quantities
of hazardous waste that exceed its normal generator category
thresholds, the Agency has determined that the use of a hazardous waste
manifest and the shipment of the hazardous waste to a RCRA-designated
facility is most protective of human health and the environment.
    However, the condition to manifest the hazardous waste and send it
off site to a RCRA-designated facility only applies to the hazardous
waste generated as a result of the episodic event. The condition does
not apply to other hazardous waste generated at the same time as, but
separately from, the episodic event. However, if the VSQG desires to
ship all hazardous waste generated and accumulated on site to a RCRA-
designated facility at once, for economic or logistical reasons, then
it can be sent off site together. This applies whether the hazardous
waste was generated as a result of the episodic event, independent of
the episodic event, or prior to the event.
    c. Accumulation standards for SQGs. For containers and tanks, EPA
is finalizing accumulation standards as conditions for managing waste
under the episodic generation provisions. When accumulating hazardous
waste generated as a result of an episodic event in containers, the SQG
must mark its containers with the following: (1) The words ``Episodic
Hazardous Waste''; (2) an indication of the hazards of the contents of
the container--examples of hazards include, but are not limited to, the
applicable hazardous waste characteristic(s) (i.e., ignitable,
corrosive, reactive, toxic), hazard communication consistent with the
DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F
(placarding), a hazard statement or pictogram consistent with the OSHA
Hazard Communication Standard at 29 CFR 1910.1200, or a chemical hazard
label consistent with the NFPA code 704. These standards are the same
as those for SQGs accumulating hazardous wastes in containers in the
course of normal business operations and are necessary to protect human
health and the environment. In addition to these standards, the SQG is
required to mark the date that the episodic event began clearly on each
container.
    For tanks, the SQG must mark or label the tank containing hazardous
waste accumulated during the event with the words ``Episodic Hazardous
Waste'' and is required to use inventory logs, monitoring equipment, or
other records to identify the hazards of the contents and to identify
the date that the episodic event began and ended. The generator must
have records containing this information on site and available for
inspection.
    EPA is also finalizing its proposal that SQGs may not take
advantage of the episodic generation provision for wastes accumulated
on drip pads or in containment buildings. EPA has determined that it is
most appropriate that hazardous waste that is being accumulated and
managed on drip pads and in containment buildings be managed under the
specific requirements in part 265 subpart W and subpart DD for those
units. If a generator experiences an episodic event in an area of the
facility that is separate from its accumulation in these units, it can
use subpart L for those hazardous wastes.
    In addition, the SQG must comply with all the conditions of the
exemption in Sec.  262.16--for example, the waste accumulation, waste
management, employee training, and emergency preparedness and
prevention conditions.
    d. Manifest use by SQGs. SQGs must manifest the hazardous waste
generated from an episodic event and send it to a RCRA-designated
facility, unless the waste is managed on site. The Agency has
determined that the use of a hazardous waste manifest and shipment of
the hazardous waste to a RCRA-designated facility is necessary to
protect human health and the environment. Note that, unlike VSQGs, the
use of the hazardous waste manifest applies not only to the wastes
generated from the episodic event, but to all other hazardous wastes
the SQG generates.
5. Duration of the Episodic Event
    VSQGs and SQGs have 60 calendar days to initiate and complete an
episodic event, which includes generation, accumulation, and management
(e.g., recycling, treatment and disposal--either on site, such as waste
neutralization in a container, or off site at a RCRA-designated
facility) of all hazardous waste resulting from the episodic event.
After considering the comments on the proposal to allow 45 days, the
Agency has determined 60 days is a more appropriate time limit and is
sufficient time for a generator to complete the episodic event, arrange
for treatment or disposal, and complete management of the hazardous
waste.
    In the case of planned events, EPA believes that in most cases,
hazardous waste is likely to be characterized before the event begins
and any contracts required for waste removal and disposal can also be
arranged before the event. However, in the case of an unplanned event,
waste may have to be characterized and contracts for disposal bid and
negotiated. In order to maintain a parallel structure for planned and
unplanned episodic events, EPA is finalizing a 60-day time frame. In
the case of a planned event, the 60 days start on the first day of any
activities affiliated with the event and in the case of a storm or
spill, the 60 days start on the day of the storm. All hazardous waste
generated from the episodic event must be removed, transported by
hazardous waste transporter with a hazardous waste manifest, and sent
to a RCRA-designated facility by the end date of the event, no more
than 60 days from its start. In addition, the Agency sees no reason to
preclude a generator from taking advantage of this provision to also
dispose of other hazardous wastes generated during the time of the
episodic event.
    EPA has determined that events requiring more than 60 days to
complete are not episodic generation of hazardous waste and the
generator should be operating in a higher generator category to
accumulate and manage that hazardous waste.
    As a result of this longer time frame, EPA is not finalizing the
proposed provision regarding a petition for an extension to an episodic
event.
6. Recordkeeping
    Generators must keep the following information in their records:
(1) Beginning and end dates of the episodic event; (2) a description of
the episodic event; (3) a description of the types and quantities of
hazardous wastes generated during the episodic event; (4) a description
of how the hazardous waste was managed, as well as the name of the
RCRA-designated facility that received the hazardous waste; (5) name(s)
of hazardous waste transporters, as appropriate; and (6) an approval
letter from EPA, if the generator successfully petitioned to conduct an
additional episodic event during the calendar year.

    The information required to be maintained in items (1) through (3)
above is the same information that must be identified on the
generator's notification to EPA about the episodic event. Maintaining
records of the name of the RCRA-designated facility that received the
waste and the ultimate management of that waste as well as the name of
any hazardous waste transporters fulfills the RCRA requirement for the
generator to be responsible for its hazardous waste from cradle to
grave. In addition, a record of any approval letters from EPA for a
second event are critical for generators to be able to show that they
were in compliance with subpart L when conducting that second episodic
event.
    These records must be maintained on site by the generator for three
years from the completion date of each episodic event. The
recordkeeping condition is critical to enable effective and credible
oversight. We also have determined that the required items represent
the minimum information necessary to determine that any hazardous waste
generated during the episodic event is managed properly.
7. Petition To Request One Additional Episodic Event
    While the Agency believes that most generators will experience an
episodic event infrequently, we also recognize that there may be
situations, often unexpected, where a hazardous waste generator may
have more than one episodic event within a calendar year, such as an
unexpected product recall, a major spill, or an act of nature.
Therefore, the Agency is finalizing a provision to allow VSQGs and SQGs
to petition EPA for permission to manage one additional planned or
unplanned episodic event per year without impacting the hazardous waste
generator category (provided that they do not have two of the same type
of event within the same calendar year).
    EPA proposed that VSQGs and SQGs could petition EPA for permission
regarding an additional episodic event per year, either planned or
unplanned. However, in response to some of the comments received on the
proposed rule from the states that implement the RCRA program, EPA has
determined that it is most appropriate to allow only one event of each
type per year and to require the generator to petition EPA for the
second event and be approved. That is, if a generator holds a planned
event early in the year, it can petition the EPA Regional Administrator
for an unplanned event later in the year if needed.\98\
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    \98\ Authorized states will develop their own procedures for
petitions under this provision.
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    In parallel fashion, if the generator has an unplanned event early
in the year, it can still petition EPA to hold a planned event later in
the year. In both cases, EPA must approve the petition for a second
event. EPA wants to allow for the case of a second event, in cases
where the generator is legitimately having episodic events, but has
determined that not allowing a generator to hold two planned events in
a year ensures that the provision is being used for true cases of
episodic generation and not as a way for generators to regularly avoid
managing hazardous waste at higher generator categories. Similarly, EPA
has determined that not allowing the generator to hold two unplanned
events in one year will ensure that the episodic generation provision
is not used in a way that creates an incentive for irresponsible
management of hazardous waste.
    Because a petition for a second event distinguishes between an
unplanned event and a planned event, EPA is adding definitions of
planned episodic event and unplanned episodic event to the regulations
in subpart L. A planned episodic event is an episodic event that the
generator planned and prepared for, including regular maintenance, tank
cleanouts, short-term projects, and removal of excess chemical
inventory. An unplanned episodic event is an episodic event that the
generator did not plan nor expect to occur, including, but not limited
to, production process upsets, product recalls, accidental spills, or
``acts of nature,'' such as a tornado, hurricane, or flood. Some of
these events are more sudden than others, but they would all be
unanticipated by the generator. EPA is not including excess inventory
in the definition of an unplanned event because a case of excess
inventory is, more than the others, a result of decisions made by the
generator in the regular course of business and is not, therefore, an
unplanned episodic event.
    Consistent with the notification requirements, the generator must
petition EPA for the second event. For a planned event, the generator
must submit a petition for a second event and indicate that this is a
petition for a second event. For an unplanned event, the petition must
be in the form of a notification to EPA within 72 hours of the start of
the event by phone, email, or fax and subsequent submittal of a
complete petition with the relevant information for the event.
    The petition must include (1) the reason why an additional episodic
event is needed and the nature of the episodic event; (2) the estimated
amount of hazardous waste to be managed from the event; (3) how the
hazardous waste is to be managed; (4) the estimated length of time
needed to complete management of the hazardous waste generated from the
episodic event--not to exceed 60 days; and (5) information regarding
previous episodic event(s) managed by the generator and how it complied
with the conditions. EPA would then evaluate this and other site-
specific information to determine whether a generator should be allowed
to complete the episodic event under the alternative standards.
    In the case of a planned second episodic event, a generator may not
manage the hazardous waste from the event under the episodic generation
conditions in subpart L until it has approval from the implementing
agency for that second event. There is no mandatory time frame for
submitting a petition for a second planned event, but the generator
should allow enough time for the implementing agency to review the
petition so that they can begin the event on time.
    EPA has determined that in the case of a petition for an unplanned
second event, the generator may manage hazardous waste for the
additional unplanned episodic event under the episodic event standards
until written approval by EPA has been received. SQGs requesting a
second event will be managing the hazardous waste under the same
technical standards in Sec.  262.16 in both situations. It would be
impractical for a VSQG requesting a second episodic event to meet Sec.
262.16 accumulation standards while waiting for approval to no longer
have to meet them. Therefore, the VSQGs would be required to meet the
performance standards outlined in Sec.  262.232(a)(4)(iii). These
subpart L accumulation standards for VSQGs are designed to minimize the
possibility of a fire, explosion, or release and containers and tanks
must be in good condition and compatible with the hazardous waste they
contain.
    If EPA approves the petition for a second event, the generator must
retain the written approval in its records for three years from the
date the episodic event ended. If EPA rejects a generator's petition
for a second event, the generator must then start managing the
hazardous waste from the episodic event and all other hazardous waste
at its facility under the standards for the

applicable more stringent generator category.
    EPA is not promulgating criteria for evaluating petitions for a
second unplanned episodic event, but recommends that the implementing
agency base its decision on factors including the validity of the
proposed episodic event, the generator's enforcement history and
evidence of the generator's ability to responsibly manage the waste.
8. Tracking and Accounting for Hazardous Waste Generation and
Accumulation as a Result of an Episodic Event Along With Normal
Production Operations
    In practice, a VSQG or SQG taking advantage of this rule must track
and monitor the start and end dates of the episodic event in
conjunction with the date the calendar month ends to ensure compliance
with all RCRA regulatory provisions associated with hazardous waste
generation and management.
    The following example demonstrates how this provision of the rule
will work. A VSQG could have a number of facility operations (e.g.,
tank cleanouts, disposal of off-spec products it cannot sell or
reclaim, and/or repair work involving the removal of lead paint chips)
that would result in a temporary change in its regulatory category. The
VSQG decides to notify EPA two months prior (as well as identifying a
point of contact and emergency coordinator) that it will initiate the
planned episodic event on July 20 and take advantage of the full 60
days allowed to conduct the event and, therefore, end on September 17.
Beginning on July 20, the generator must comply with all of the
conditions of subpart L to maintain its exemption as a VSQG. Under this
example, if the generator complies with subpart L, it can generate more
than 1,000 kilograms of hazardous waste as a result of the events it
identified in the identification until September 17.
    On or before September 17, the generator must remove and dispose of
all the hazardous wastes it generated over the course of the previous
60 days from the episodic event. Provided the generator meets that
deadline, that waste does not count when determining the generator's
category.
    In this example, the generator could choose to also dispose of
waste generated from its normal operations in the same shipment.
However, in this case, any waste generated from production or events
that were not identified in the notification to EPA about the episodic
event (or in the petition for a second event) must be counted for the
purposes of determining the generator's category for any months
impacted by the episodic event. Specifically as an example, the
quantity of hazardous waste the VSQG generates outside the episodic
event from September 1 through September 17 would be added the amount
of hazardous waste generated for the remainder of September (starting
on September 18 until the end of the month) to determine the
generator's category for that month.
    The same approach applies to the accumulation limit for hazardous
waste at a VSQG. If the VSQG exceeds 1,000 kg of hazardous waste on
site as a part of its episodic event, that waste can be managed under
the provisions of subpart L until September 17. If, however, the
hazardous waste has not been shipped off site by September 18, the
generator must manage the waste as LQG waste. In addition, the
generator would be in violation of the conditions of the episodic
generation provision.
    In summary, if a generator's waste is to be considered part of the
episodic event and not be counted toward monthly generator category,
then the waste must be part of the episodic event identified in the
generator's notification. EPA has determined that this will prevent
generators from using the time frame of an episodic event as a free-
for-all for generation of all types of waste, regardless of whether it
is identified in the notification of the event. EPA has revised this
interpretation of how the episodic generation provision will work from
the preamble discussion in the proposed rule in reaction to concerns
from commenters that the episodic generation provision would provide
excessive relief from the hazardous waste regulations for generators.

C. What changed since proposal?

    EPA is finalizing the episodic generation provisions in subpart L
mostly as they were proposed on September 25, 2015, but with several
important revisions: (1) Lengthening the time allowed for an episodic
event from 45 days to 60 days and removing the option for a petition to
extend an event; (2) revising the situations in which a generator can
petition for a second event to ensure that a generator holds no more
than one planned and one unplanned episodic event in a calendar year;
(3) revising the notification requirements for unplanned events to
allow 72 hours for notification; and (4) revising the labeling
requirements to remain parallel with the labeling requirements for all
generators being revised in the final rule (see section IX.E for more
details on marking and labeling revisions).
1. Allowing 60 Days To Complete an Episodic Event
    Most of the comments EPA received on the episodic generation
provision in the proposal revolved around how long each episodic event
could be and the number of events allowed per year. EPA's goal is to
find a balance between a time frame that would be useful and workable
for industry and not making episodic generation a loophole for
generators to use to circumvent the regulations by holding episodic
events over a large part of the year. The first part of achieving this
balance is determining how long an event should be.
    EPA proposed a 45-day limit for an episodic event with an option to
petition for a 30-day extension, for a potential total of 75 days. EPA
proposed 45 days because it believed that 45 days allowed enough time
for an event to be initiated and completed and for the waste to be
removed. The petition option was meant to account for any unexpected
problems that the generator might have with transporting the waste off
site. EPA did not want to extend the episodic event for so long that it
might represent a large portion of the year. EPA determined that if the
episodic event provision were too expansive, it would be more likely to
allow generators that are more permanently generating in a higher
category to try to use the provision as a way to avoid those
requirements.
    However, many commenters on this aspect of the provision argued
that the 45-day limit was too restrictive and one stated that the limit
``undermines the benefits to operators of the episodic event rule.''
\99\ However, it should be noted that there was also some support for
the 45-day time frame in the comments, as well as at least one
commenter who argued that 45 days is too long for an episodic event
because most truly episodic events are very short-term spikes.\100\
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    \99\ Alyeska Pipeline Service, EPA-HQ-RCRA-2012-0121-0088
    \100\ Minnesota Pollution Control Agency, EPA-HQ-RCRA-2012-0121-
0232
---------------------------------------------------------------------------

    One of the main reasons that commenters argued that 45 days is too
restrictive a time period for episodic events was the time needed for
waste disposal contracts to be competitively bid and the time needed
for generators to classify waste and prepare and schedule shipments.
Other commenters also pointed out that events themselves may take place
over several weeks and that some remote facilities may have special
circumstances that require longer time frames to resolve. Other

commenters argued that some events may be special projects or
demolition or remediation projects that would take longer than 45 days.
    Many commenters suggested a 90-day time frame, to match up with the
requirements for large quantity generators, and some suggested a 60-day
time frame. Other commenters suggested time frames as long as 180 days.
    EPA was persuaded by the commenters who stated that a longer time
frame was appropriate for an episodic event, particularly because of
the arguments surrounding the planning needed to remove waste from the
generator site in the case of an unplanned event. For planned events,
it should be a matter of course for the generator to have characterized
waste as hazardous or not and made arrangements for shipment off site
in advance. However, in the case of an unplanned event, the generator
might not know if the material that must be disposed qualifies as a
hazardous waste and may not have a waste hauler available for a pick
up. If the generator has to competitively bid for the service, as some
of the commenters on the rule argued that they must, the process of
getting the waste off site will take longer.
    However, EPA was not persuaded by the commenters who argued that
some events themselves will take longer than the time allowed, such as
long-term demolition or remediation projects. Rather, these bigger
long-term projects do not appear to be the kind of event that EPA would
consider an ``episodic'' event and warrant the facility shifting into
the larger waste category for the duration of the increased waste
generation to properly manage the site and the hazardous waste itself.
    Therefore, EPA is finalizing a longer time frame than proposed to
account for some of the challenges in managing waste from an unplanned
episodic event. EPA has determined that 60 days is an effective balance
between allowing time for the generators to use the provision without
making the time frame so long that it becomes something generators can
abuse. A 90-day time frame, suggested by many of the commenters, struck
EPA as being excessively long, as it would mean that a generator could
consider the waste being generated during a full quarter of the year as
waste from an episodic event. Shortening the event time and allowing a
full 90 days of accumulation time also went counter to the Agency's
goal of encouraging these generators that are generating above their
normal category to arrange for the shipment of the waste to a RCRA-
designated facility as soon as possible.
    As part of our decision to lengthen the time frame for an episodic
event, EPA also determined that a petition for a 30-day extension to an
episodic event is no longer necessary. The longer time frame of 60 days
should mean that extensions are not necessary in many cases. In
addition, EPA received comments from the authorized states that they
are concerned about the potential volume of petitions they might
receive from the proposed episodic generation provisions and
eliminating the option to petition for an extension is responsive to
their concerns about the effect of the new provision on their
resources. Accordingly, if a generator operating under the episodic
generator conditions finds itself at the end of the 60-day time period
and is unable to remove the waste from its site before the deadline,
its generator category will change to SQG or LQG once the deadline has
passed and the hazardous waste must be managed under the appropriate
generator standards.
2. Petition for a Second Event
    EPA proposed that a generator could petition EPA for a second
episodic event, planned or unplanned. The proposal was based on the
idea that in some cases a generator may want to hold a second event,
but EPA did not want to simply allow two episodic events per year for
all generators without a petition because of the potential abuse of the
provision by generators that are not truly generating higher volumes of
waste episodically, but should be operating in the larger generator
category. EPA also wanted the petition to operate as a check that an
implementing agency could use if it thought that a generator might be
abusing the provisions.
    The comments EPA received on this aspect of the proposal argued for
a wide variety of options. Some commenters suggested that two events
per year should be allowed, some suggested allowing a petition for a
third, and one commenter supported allowing up to three episodic events
in a year provided the generator has a standing agreement with a
facility to accept the waste. However, several of the states supported
limiting the episodic generation provision to one event per calendar
year with no possibility for a second event while others argued that
the proposed one event and a petition was appropriate. One state also
suggested that the implementing agency should examine the causes of
each event at each generator and determine if the episodic event could
be held.
    After considering the comments, EPA has determined that it is
appropriate to allow a facility to petition for a second event in a
calendar year, but only if the generator is only holding one planned
and one unplanned event in that calendar year. For instance, if the
generator has already held a planned episodic event in a year, a
planned second 60-day event in the course of the year could indicate
that the generator should be operating at a higher generator category.
However, a generator that is truly a VSQG or SQG could have an occasion
where it has performed a clean out or system shut down already during
the year and then an act of nature or other truly unplanned event
occurs. EPA would not expect this to be a regular occurrence for
generators and will depend on the implementing agencies operating the
RCRA programs to take note and act accordingly if a generator is
regularly requesting a second episodic event.
    At the same time, a generator may be planning to conduct an
episodic event such as a tank clean out or maintenance project late in
the year when it gets struck with a hurricane that can be managed as an
unplanned episodic event for hazardous waste. In this case, the
generator can hold an episodic event to respond to the storm and then
petition EPA for a second event for the cleanout, while explaining that
it needs the second event because of the occurrence of the storm
earlier in the year.
    EPA also believes that limiting the type of event that a generator
can petition for will reduce the numbers of petitions submitted as a
part of this provision, which is responsive to some of the comments
received by states concerned about increased workload.
3. Notification
    EPA proposed notification requirements for episodic events to
ensure that the authorized state or EPA is informed of when a generator
is holding an event that would otherwise cause that generator to be
operating in a higher generator category. The proposed requirement was
that in the case of a planned event, the generator must notify EPA no
later than 30 days before the event begins. For notification in the
case of an unplanned event, EPA proposed that the generator notify
within 24 hours or as soon as possible by phone or email and then
follow up with a full notification using EPA Form 8700-12 (the Site ID
form).
    Many of the comments on the notification provision singled out the
notification for an unplanned episodic event as difficult to meet. Most
of these

commenters stated that 24 hours is an insufficient time frame and did
not mention EPA's addition of the phrase ``or as soon as possible'' in
the proposal. Commenters noted that in the case of an unplanned event,
the generator may not know if the waste is hazardous or if there is
enough hazardous waste to make an episodic event necessary. Commenters
suggested alternative approaches that included allowing longer time
frames for notification, including 72 hours, 7 days or 30 days or
simply ``as soon as possible.'' Another suggested approach was to
require notification 24 hours after a waste determination was made. EPA
also heard that having a specific time frame in which the notification
must be made is critical for making the requirement enforceable by the
states.
    EPA understands that in the case of an unplanned episodic event, a
generator will have competing priorities, particularly if a spill has
occurred. However, the notification requirement for the episodic
generation provision is critical in maintaining the appropriate levels
of oversight for the generators taking advantage of this provision. EPA
determined that it would not be appropriate to base the time frame for
notification on when a waste determination is made, as that would not
be parallel to any other area of the generator program and would be
difficult to enforce. In addition, EPA found that the suggestions for
the notification time limit to be lengthened to 7 or 30 days would
result in excessive delays between the start of an episodic event and
notification to EPA, compromising the ability to provide adequate
oversight.
    EPA has determined that it is reasonable, however, to adjust the
time frame for initial notification to EPA of an unplanned episodic
event by phone, email, or fax within 72 hours from when the event
begins. EPA believes that this adjustment provides the generator with
some additional time in case there is a necessary delay in contacting
EPA due to emergency conditions, but does think that a timely
notification to the Agency is important in the case of unplanned events
at the generator to ensure proper oversight. A 72-hour limit ensures
that timely notification.
    If a generator finds that it notifies of an event and then it turns
out that the material in question is not hazardous waste or does not in
fact top the limit for the generator's category, the generator can work
with EPA by explaining that the event was not necessary after all.
Under the previous regulations, that generator would have to manage the
excess generated material as hazardous waste until it is determined not
to be, which would have included a notification of a higher generator
category, so the requirement being finalized is not an additional
burden.
4. VSQGs Notifying Local Fire Department
    EPA proposed that a VSQG would be required to notify its local fire
department that it was taking advantage of an episodic event. The
notice would need to include the start and end dates and identify the
types and quantities of hazardous wastes that would be generated. EPA
stated that the purpose of the notification was to inform regulatory
authorities of the facility's activities in order to enable adequate
compliance monitoring of the facility with the conditions of the
alternative standards.
    EPA did not receive support in the public comments for this
proposal. The commenters stated that the notification requirement was
excessive and would be an unnecessary burden to both the VSQGs and to
the fire departments that would have received the notifications.
Commenters on this provision included both industry stakeholders and
state agencies. Therefore, EPA is not finalizing this notification
requirement as part of subpart L.
5. Labeling
    EPA proposed a labeling requirement as part of episodic generation
that paralleled the labeling and marking being proposed throughout the
generator program. The proposed requirement was for episodic generators
to label their waste as ``episodic hazardous waste,'' to label the
container with the contents of the container and the hazards of the
contents and to mark the start date of the episodic event as well. The
requirements for tanks would have allowed the relevant information
about the contents, hazards, and episodic event to be recorded in a log
book instead of on the container.
    In this final rule, EPA has revised the marking and labeling
requirements throughout the generator program to remove the requirement
that the contents of the container or tank be noted. The provision
focuses instead on the hazards of the contents, as that requirement
tracks more directly to the needs of responders in an emergency. EPA
does expect that many facilities already label containers with the
contents and will continue to do so to ensure that the correct
information is available for manifesting when it comes time to ship the
materials off site or for proper treatment on site.
    The marking and labeling requirements in subpart L for episodic
generation have likewise been revised to remain parallel with the
requirements in the other parts of the generator program. (See section
IX.E for a complete discussion of the marking and labeling revisions.)
6. Management of Other Hazardous Waste Generated During Episodic Event
    In EPA's proposal, the preamble included an interpretation of the
proposed provision for episodic generation that discussed allowing a
generator to include hazardous waste that was generated outside an
episodic event to be managed with the hazardous waste from the episodic
event. This interpretation included both physical management of the
waste and shipment off site, as well as not counting that other
hazardous waste toward the generator's category.
    Some of the comments that EPA received from the states on this
episodic generation provision argued that it would provide excessive
relief from the generator regulations and, therefore, that it would not
be appropriate to allow this relief. As discussed elsewhere, EPA
carefully considered what parts of this proposal could be revised to
ensure that the episodic generation provisions are used just for the
management of waste that is episodically generated and not be used to
allow a generator to avoid managing waste in a larger generator
category that it is operating in more regularly. EPA identified this
discussion as an area where the interpretation of the final provision
should be revised to clearly state that only the waste from the
identified episodic event is exempt from being counted toward a
generator's category. EPA has therefore revised this discussion for
this final preamble.

D. Major Comments

1. Labeling Waste as ``Episodic Hazardous Waste''
    EPA received several comments stating that the proposed requirement
to label hazardous waste from an episodic event as ``episodic hazardous
waste'' rather than ``hazardous waste'' is an unneeded distinction. The
commenters stated that it would be a burden to get and use a label that
is different than the standard ``hazardous waste'' label.
    EPA disagrees with the commenters on the usefulness of the
``episodic hazardous waste'' label. EPA is retaining this requirement
because it will be important for generators holding episodic events to
be able to distinguish hazardous wastes generated during those events
from other hazardous

wastes generated on site. Although both types of hazardous waste can be
managed and shipped off site together, if convenient, hazardous waste
that was generated before the episodic event began retains its original
time frame for being treated or shipped off site whereas hazardous
waste from an episodic event must be treated or shipped off site within
the 60-day period for the event.
    If there is no distinction on the labels for hazardous waste from
an episodic event, it would be difficult for a generator or an
inspector to be able to determine which hazardous waste is a part of
the episodic event with the 60-day limit and which hazardous waste has
an alternate schedule for treatment and shipment. EPA does note,
however, that the generator does not have to use a specific ``episodic
hazardous waste'' label that would have to be purchased separately and,
if practicable, can simply add the word ``episodic'' to the labeling
with a self-designed label or with a large permanent marker.
2. Notification of Episodic Events
    EPA also received several comments that notification of episodic
events to EPA is an unneeded burden to the generators and will decrease
the likelihood of generators using this provision.
    EPA disagrees that there is little to be gained from notification
and, instead, has determined that it is critical to the enforceability
of this provision and for the states to oversee the hazardous waste
activity under their authority. Without a notification requirement for
episodic waste, a generator could potentially operate as if under an
episodic event at all times, changing the starting date, so that during
any given inspection, it appears as though there is an episodic event
on site. EPA does not expect that many generators would manage
hazardous waste in this way, but the regulations must include checks
and balances to prevent such abuse and the notification requirement is
one way to allow the implementing agencies to follow up in person if
such action is warranted.
3. VSQGs Exceeding Generation Limit During Normal Operations
    EPA received some comments stating that a VSQG that does not
discover until the end of the month that it has exceeded its threshold
for generation of hazardous waste as a VSQG would have difficulty
complying with the episodic generation provision because of the
notification requirements.
    EPA would not consider the situation described by the commenters to
be a case of an episodic event because the VSQG in this case is
exceeding its generation limit in the course of normal operations. An
episodic event is an activity that does not occur within normal
operations that causes the generator to exceed its normal limit.

XI. Detailed Discussion of Preparedness, Prevention, and Emergency
Procedures Provisions for SQGs (40 CFR 262.16) and LQGs (40 CFR 262.17
and 40 CFR part 262 Subpart M)

A. Introduction

    EPA is finalizing a number of proposed modifications to the
conditions for exemption for both SQGs and LQGs regarding preparedness,
prevention and emergency procedures, as described in the proposed
rulemaking (80 FR 57972). Proposed conditions for SQGs were found at
Sec.  262.16(b)(8)-(9) and for LQGs at Sec.  262.17(a)(6)-(7), which
reference part 262 subpart M. The preamble to the proposed rulemaking
discussed in detail the rationale for making several revisions to
existing regulations, as well as specifically taking comment on certain
proposed revisions and on other potential changes that were not
reflected in revisions to existing regulations.
    In discussing these modifications in the proposed rule, EPA
provided examples of catastrophic chemical accidents in the United
States to highlight the need for continued improvement in a number of
areas related to chemical facility safety. EPA also noted that, to
address these concerns, the President issued Executive Order 13650--
Improving Chemical Facility Safety and Security (EO) on August 1, 2013,
which directed the EPA and other federal agencies to identify ways to
improve operational coordination with state, local, tribal, and
territorial partners; enhance federal agency coordination and
information sharing; modernize policies, regulations, and standards to
enhance safety and security in chemical facilities; and work with
stakeholders to identify best practices to reduce safety and security
risks in the production and storage of potentially harmful chemicals.
EPA explained that several of these modifications are aligned with EO-
related efforts in that they will facilitate collection and analysis of
chemical information from local facilities, as well as development of
local emergency response plans to mitigate or prevent a devastating
chemical disaster. EPA further explained that these modifications will
also update the regulations to make them compatible with the current
infrastructure of emergency planning and response, as well as provide a
more usable contingency plan to emergency responders en route to a
time-sensitive emergency at a facility that generates hazardous waste.
Proposed or potential modifications, as well as key comments received
on each, are discussed in this section in terms of the extent to which
they are being incorporated into this final rulemaking.

B. What is EPA finalizing as proposed?

1. Changes to Contingency Plan Regulations for Large Quantity
Generators: Eliminating Employee Personal Information in Contingency
Plans
    The condition for exemption for LQGs at Sec.  262.17(a)(6)-(7)
references 40 CFR part 262 subpart M, which includes requirements
associated with contingency plan content at Sec.  262.261. EPA proposed
to modify the language to allow an LQG the flexibility to eliminate
unnecessary employee personal information in the contingency plan in
order to protect those individuals' privacy while still providing
necessary information to address emergencies. Specifically, while
retaining the name of persons qualified to act as emergency
coordinators, the Agency proposed to remove references to addresses and
changed the reference to home and office telephone numbers to
``emergency telephone number.'' EPA also proposed to add language
stating that, in situations where the generator site has an emergency
coordinator continuously on duty because it operates 24 hours per day
and every day of the year, the plan may list the staffed position
(e.g., operations manager, shift coordinator, shift operations
supervisor, or some other similar position) as well as an emergency
telephone number that can be guaranteed to be answered at all times.
The Agency requested comment on this proposed modification.
    The majority of commenters supported EPA's proposal to remove
addresses and home phone numbers for personnel and to allow listing of
staffed positions. A few commenters suggested extending this provision
to cover SQGs, even though they are not required to have contingency
plans, and TSDFs. EPA has decided it is appropriate at this time to
focus on changes for LQGs only because they pose the greatest concern
in matters of emergency preparedness; consequently, the Agency is
finalizing Sec.  262.261(d) as proposed. Although EPA is not extending
these requirements to other generator categories or to TSDFs, the
Agency would encourage facilities

to adopt these changes as a best management practice.
2. Technical Changes Applicable to Both Small Quantity Generators and
Large Quantity Generators
    EPA proposed clarifications and modifications to preparedness and
prevention procedures dealing with the location of required equipment
and access to communications or alarm systems based on 30 years of
experience with these rules, feedback from stakeholders as part of the
Agency's November 2004 Hazardous Waste Generator Regulatory Program
Evaluation (Docket ID No. RCRA-2003-0014), and other discussions with
stakeholders. These revisions are discussed below.
    a. Proposed technical changes to introductory paragraph on required
equipment. EPA noted that existing regulations are unclear regarding
whether the required emergency response equipment must be placed in
those areas of operation where hazardous waste is generated and
accumulated or other parts of the facility where hazardous waste is not
generated or accumulated. The Agency added that it may not always be
appropriate or safe to store equipment in the actual waste generation
or accumulation area--even though the requirement itself applies only
to the generation and accumulation (and treatment, as appropriate) of
hazardous waste. Therefore, the generator should have the flexibility
to store this equipment in other areas of the facility in situations
where it is infeasible or inappropriate for safety reasons to have the
equipment located immediately next to hazardous waste generation and
accumulation areas. EPA proposed to clarify that, while the equipment
provision applies to only those areas where hazardous waste is either
being generated or accumulated, the generator may determine the most
appropriate locations within its facility to locate equipment necessary
to prepare for and respond to emergencies. EPA requested comment on
this proposal.
    Commenters generally supported EPA's proposed clarification as it
provides flexibility in determining the most appropriate locations of
emergency response equipment, although several commenters suggested
various changes/clarifications related to the location and
accessibility of emergency equipment. EPA does not believe these other
changes/clarifications are necessary and is finalizing Sec.
262.16(b)(8)(ii) and Sec.  262.252 as proposed.
    b. The meaning of ``immediate access.'' Preparedness and prevention
provisions include the condition that, whenever hazardous waste is
being poured, mixed, spread, or otherwise handled, all personnel
involved in the operation must have immediate access to an internal
alarm or emergency communication device, either directly or through
visual or voice contact with another employee, unless such a device is
not required. At issue is whether the phrase ``immediate access'' is
clearly understood or whether additional clarity is necessary. EPA
proposed to modify this language to include the parenthetical ``(e.g.,
direct or unimpeded access)'' after the phrase ``immediate access.''
EPA requested comment on the usefulness of modifying this language.
    The majority of commenters supported this modification, although
one commenter expressed concern regarding what would constitute
immediate or unimpeded access. Another commenter requested
clarification as to whether access to a cell phone satisfies the
requirement for immediate access to an alarm or communication device.
EPA believes that, although cell phones are a useful means of
communication, they should not be relied upon solely to satisfy this
requirement. The Agency is therefore finalizing Sec.  262.16(b)(8)(iv)
and Sec.  262.254 as proposed.
3. Technical Changes Applicable to Small Quantity Generators
    Based on experience and feedback received from the regulatory
community and other stakeholders, EPA proposed revisions that address
two of the four provisions regarding emergency procedures for those
areas where SQG hazardous waste is generated and accumulated. These
revisions are as follows.
    a. Require certain information be posted ``next to the telephone.''
In the proposed rule, EPA explained that existing regulations were
unclear where required information (i.e., name/telephone number of the
emergency coordinator, the location of fire extinguishers, spill
control material, fire alarms and, as necessary, telephone number of
the fire department) should be posted in the facility. The Agency
stated that a facility may have many operations and components that
have no relationship with the generation and accumulation of hazardous
waste. EPA noted that stakeholders have recommended deletion of this
particular provision because, in this age of near-universal 911
availability, it is not important from a regulatory standpoint to have
emergency telephone numbers, including the number (and name) of the
emergency coordinator, and have also asserted that locations of the
equipment in question should be conveyed to relevant employees and
displayed in a worker break area rather than the facility office. EPA
disagreed with eliminating this provision since making such information
readily available is important for workers and others so that they
would know what to do and where to go in the case of an emergency.
However, the Agency nevertheless believed the regulation should be
modified, adding that it is unclear whether the telephone number for
the emergency coordinator refers to a home or business phone. With cell
phones and other means of instant communication now prevalent, EPA
proposed to modify this language to state that the SQG must post the
name and emergency telephone number of the emergency coordinator next
to telephones or in areas directly involved in the generation and
accumulation of hazardous waste. EPA requested comment on this proposed
change.
    Commenters generally expressed support for this proposed change,
although certain commenters questioned the posting of emergency
information where hazardous waste is generated or accumulated. Some
commenters requested the option of keeping emergency information on
cell phones, while another commenter cautioned that cell phone
reliability could be compromised during a widespread emergency. EPA
understands that cell phone use may be compromised but also realizes
that cell phones are widely used and that the inability to use cell
phones for communication purposes would not prevent an employee from
accessing stored information, such as land line telephone numbers
(e.g., home or business phone). The Agency is finalizing Sec.
262.16(b)(9)(ii) as proposed in order to accord flexibility in
complying with this SQG requirement.
    b. Allow containment and cleanup to be conducted by a contractor.
EPA's understanding was that most SQGs would hire a spill cleanup
contractor to perform containment and cleanup of hazardous waste in the
event of a spill rather than train employees to perform the response.
Although EPA agreed that allowing an SQG to hire a contractor trained
to address hazardous waste spills would be appropriate, the Agency
indicated that regulations in place arguably do not provide this
flexibility. EPA proposed to modify this language to allow containment
and cleanup to either be conducted either by the SQG or by a contractor
on behalf of the SQG. EPA requested comment on this

proposed change, including whether any unintended consequences could
arise from providing SQGs with this flexibility.
    Nearly all of the commenters supported EPA's proposed modification,
although some commenters opined that existing language already allows
for contractors to perform this work. Other commenters mentioned that
the generator is ultimately responsible for ensuring proper response
and cleanup and a few suggested adding language clarifying contractor
liability in performing cleanups. EPA is finalizing Sec.
262.16(b)(9)(iv)(B) as proposed.

C. What is EPA finalizing with changes to proposed rule language?

1. Areas Subject to Preparedness, Contingency Planning, and Emergency
Procedures Regulations
    EPA stated in the proposal that current preparedness and emergency
procedures regulations do not clearly state whether they are applicable
to the entire facility or only to areas where hazardous waste is
generated and accumulated on site or where allowable treatment may
occur in accumulation units (i.e., in containers and tanks per EPA
guidance) and when transported off site for subsequent treatment,
storage, and disposal. Therefore, EPA proposed that regulations for
preparedness and prevention and for contingency planning and emergency
procedures apply only to those areas where hazardous waste is generated
and accumulated and, where applicable, to those areas where allowable
treatment may occur in accumulation units. For this reason, EPA
proposed to explicitly state that the RCRA preparedness and emergency
procedures regulations are limited strictly to these areas.
    EPA acknowledged that previous Agency guidance indicated RCRA
preparedness and emergency procedures regulations, including
development of contingency plans by LQGs, would only apply to 90-day
accumulation units, otherwise known as CAAs. In this guidance, the
Agency states that, when developing a contingency plan, LQGs would only
need to include those 90-day accumulation units involved in the on-site
management of hazardous waste.\101\ At that time, Agency expressed a
desire to limit the applicability of these regulations only to these
areas because several other statutes already address the development
and implementation of contingency plans associated with other areas of
a generator facility, such as the storage of chemical materials and
substances other than hazardous wastes. The Agency also noted that
considerable overlap exists in the requirements in the various statutes
and, since 1997, the federal government has encouraged facilities to
develop integrated contingency plans. Examples include EO 13650 and the
Agency's aforementioned One Plan guidance.
---------------------------------------------------------------------------

    \101\ Memorandum from Matt Hale, Director of EPA's Office of
Solid Waste, to RCRA Division Directors, November 7, 2006, RCRA
Online 14758.
---------------------------------------------------------------------------

    EPA proposed that subpart M apply only to those areas of an LQG
where hazardous waste is generated and accumulated on site in
accordance with the conditions in Sec.  262.17. This proposal included
a parallel change for the emergency procedures regulations for SQGs in
Sec.  262.16.
    Although the primary objective of these changes was to ensure that
preparedness and planning regulations under RCRA did not apply to the
entire facility, EPA received several comments on whether SAAs and
points of generation should or should not be included. Comments were
roughly split on whether areas besides CAAs, such as SAAs and points of
generation, should be included within the scope of preparedness and
planning regulations. Notwithstanding existing guidance, EPA continues
to believe there are benefits to addressing areas besides CAAs.
Throughout a facility, there may be many points of generation and
associated SAAs from which hazardous wastes are routinely moved to
CAAs; therefore, the potential for spills exists during the
accumulation and management process. For this reason, EPA has
determined it is appropriate to address these additional areas,
consistent with the objectives of EO 13650, in order to ensure
protection of human health and the environment, as part of preparedness
and planning regulations.
    With respect to allowable treatment, EPA believes that locations of
such treatment would be covered as part of the overall accumulation and
management process within a facility. Although EPA has not specifically
defined allowable treatment in the regulations, the Agency has
determined at this time to continue to address allowable treatment at
generator facilities within the framework of existing guidance.\102\
---------------------------------------------------------------------------

    \102\ On March 24, 1986, EPA finalized regulations applicable to
generators of between 100 kg and 1000 kg of hazardous waste in a
calendar month (51 FR 10146) in which the Agency indicated that
these generators could treat such waste in accumulation tanks or
containers without a permit provided that treatment conformed to
established management standards for tanks and containers. An
example of subsequent guidance regarding allowable treatment at both
SQGs and LQGs is a memorandum from Elizabeth Cotsworth, Director of
EPA's Office of Solid Waste, to RCRA Senior Policy Advisors, August
16, 2002, RCRA Online 14618.
---------------------------------------------------------------------------

    EPA is, therefore, finalizing regulations making it clear that
points of generation and SAAs, in addition to CAAs, fall within the
scope of regulations for preparedness and planning in Sec.
262.16(b)(8) for SQGs and 40 CFR part 262 subpart M for LQGs. This
includes adding clarifying language in Sec.  262.15(a)(7) and (8)
regarding the conditions for exemption for both SQGs and LQGs that
specifically relate to SAAs.
2. Making and Documenting Arrangements With the Local Emergency
Planning Committees
    EPA noted in the proposal that RCRA generator regulations, which
were finalized in 1980, have not been updated to reflect significant
changes to the national, state and local infrastructure for emergency
planning and response, one of which was passage of the Emergency
Planning and Community Right-To-Know Act (EPCRA) in 1986. The Agency
also discussed EPCRA in terms of emergency planning and notification
requirements, as related to preparedness, prevention and emergency
procedures established by hazardous waste management regulations. This
included the roles and responsibilities of Local Emergency Planning
Committees (LEPCs) under EPCRA. EPA explained that facilities covered
under EPCRA are required to report chemical information to LEPCs, as
well as other entities, and that LEPCs are required to prepare a
comprehensive emergency response plan. Facilities covered by EPCRA
planning provisions are required to cooperate in emergency plan
preparation and designate a facility emergency coordinator to
participate in this process.
    For this reason, EPA proposed revisions to require that SQGs and
LQGs must first attempt to enter into arrangements with their LEPCs.
EPA also proposed regulatory text that describes procedures for how a
facility that is not able to make arrangements with the LEPC would make
such arrangements with the fire department and other local emergency
services. The Agency requested comment on its proposal to require an
SQG or LQG to enter into arrangements with its LEPC unless there is no
LEPC, the LEPC does not respond, or the LEPC determines that it is not
the appropriate organization to make arrangements with, in which case
the SQG or LQG

would enter into an arrangement with its local emergency responders.
    Due to the fact that some SQGs and LQGs may already coordinate with
their LEPCs annually as part of their EPCRA requirements, EPA opined
that it would be unnecessary to include time frames for updating in
this rule. The Agency, nevertheless, requested comments on whether the
regulations should mandate how frequently a generator must communicate
with its LEPC or local fire department if it has not otherwise
communicated with them.
    EPA also proposed to modify existing regulations to state that the
generator shall maintain records documenting the arrangements with the
LEPC or, if appropriate, with the local fire department, as well as any
other organization necessary to respond to an emergency. The Agency
asked for comment on this proposed change to documentation, in
particular, whether local ordinances already require generators to have
documentation of arrangements with local emergency response
organizations.
    Finally, the Agency asked for comment on the feasibility of
providing a waiver from requiring either an SQG or LQG to enter into
arrangements with an LEPC or, if appropriate, other local authorities
when they have 24-hour on-site emergency response capabilities, and
particularly under what circumstances a waiver would be granted.
    The majority of commenters indicated that local emergency
responders, as opposed to LEPCs, should serve as the initial point-of-
contact for LQGs, citing concerns about an emphasis on LEPCs, which
usually are not involved in actual responses to emergencies. Regarding
the extent to which SQGs and LQGs should document efforts to enter into
arrangements with local authorities/first responders, some commenters
stated the generator cannot be held responsible for making arrangements
with a party over which it has no control and noted that a mandated
arrangement differs greatly from being required only to make an
``attempt.'' There were also questions on what would constitute
appropriate documentation. Although there was some opinion to the
contrary, the majority of commenters believed that large facilities
with internal emergency response capability should be given a waiver or
allowed to seek a waiver from entering into arrangements with local
authorities.
    Based on the comments received, EPA is not finalizing the proposed
references to LEPCs as the primary contact identified at Sec.
262.16(b)(8)(vi) and Sec.  262.256 for SQGs and LQGs, respectively. EPA
is also not finalizing proposed language indicating that generators
must make arrangements with local responders and is clarifying that
generators must simply attempt to make arrangements with local
responders and document either the attempts or, if successful, the
final arrangements. Some commenters provided feedback in terms of what
constitutes sufficient ``documentation'' that best efforts were made to
enter into arrangements. In considering these comments, EPA is revising
the proposed language at Sec. Sec.  262.16(b)(8)(vi)(B) and 262.256(b)
to remove the term ``certified letter'' in recognition of the fact that
there are various means of confirming that arrangements actively exist,
or were sought but not obtained, including, but by no means limited to,
a certified letter, fax and electronic mail. Additionally, based on
these comments, EPA is revising proposed language to insert the phrase
``in the operating record,'' which would include the contingency plan,
to provide additional flexibility regarding where such documentation
can be retained. Finally, during implementation of the final rule, as
part of coordinating with stakeholders and conducting associated
outreach activities, EPA intends to address the issue of what
constitutes reasonable efforts or sufficient attempts by SQGs and LQGs
to make and document arrangements with local authorities.
    With respect to large facilities possessing internal emergency
response capability, EPA is adding language at Sec. Sec.
262.16(b)(8)(vi)(C) and Sec.  262.256(c) that allows these facilities
to obtain a waiver from the authority having jurisdiction (AHJ) over
the fire code within the facility's state or locality in terms of
entering into arrangements with local authorities provided the waiver
is documented in the operating record. As previously stated in the
final rule preamble, an AHJ may or may not be the fire marshal, fire
chief, building official, or another official as designated by the
state or local government. EPA believes that, practically speaking, the
AHJ would be in the best position to evaluate whether a particular
facility, in fact, possesses 24-hour response capabilities. This is
consistent with the Agency's rationale when discussing waivers from the
15 meter property line condition in the case of ignitable or reactive
hazardous waste accumulation. The Agency is similarly allowing
flexibility regarding how the generator documents that a waiver has
been obtained.
3. Changes to Contingency Plan Regulations for Large Quantity
Generators: Submitting a Contingency Plan Executive Summary to
Emergency Management Authorities
    In the preamble to the proposed rule, EPA noted that RCRA
regulations on contingency planning and emergency procedures address
the purpose of the contingency plan, what it must contain, who receives
copies, how to amend the contingency plan, and responsibilities of the
facility's emergency coordinator and emergency procedures. The Agency
also noted that the owner or operator of the facility can develop one
contingency plan that meets all the regulatory standards for the
various statutory and regulatory provisions associated with contingency
planning, which were specifically identified in the proposed rule
preamble. In doing this, the Agency recommended that generators base
their contingency plan on the National Response Team's Integrated
Contingency Plan Guidance One Plan (June 5, 1996: 61 FR 28642).
    EPA's discussions with emergency management professionals indicated
that the length of the facility contingency plans may prevent first
responders from being able to fully review these documents when
responding to an emergency and what first responders really need is
readily available information describing what they will immediately
confront upon arrival at the scene. EPA recognized that, once the
incident is under control, first responders will be able to review the
contingency plan to determine whether longer-term responses are
necessary. However, the Agency also indicated that a shorter document,
such as an executive summary of the contingency plan, would allow a
more effective initial response to an incident at a facility.
    Based on a review of information required as part of a RCRA
contingency plan, as well as information required by the local fire
department, EPA identified certain components that would be useful in
an executive summary. In particular, EPA proposed to require that the
following information be included in an executive summary to assist
emergency responders in the event of an incident: (1) The types/names
of hazardous wastes in layman's terms and the associated hazard
associated with each waste present at any one time (e.g., toxic paint
wastes, spent ignitable solvent, corrosive acid); (2) the estimated
maximum amount of each waste that may be present at any one time; (3)
the identification of any hazardous wastes where exposure

would require a unique or special treatment by medical or hospital
staff; (4) a map of the site showing where hazardous wastes are
generated and accumulated and routes for accessing these wastes; (5) a
street map of the facility in relation to surrounding businesses,
schools, and residential areas to understand how best to get to the
facility and also evacuate citizens and workers; (6) the locations of
water supply (e.g., fire hydrant and its flow rate, drafting
locations); (7) the identification of on-site notification systems
(e.g., a fire alarm that rings off site, smoke alarms); and (8) the
name of the emergency coordinator and 24/7 emergency telephone number.
    Because of the usefulness of a shorter document for emergency
responders, EPA proposed to require that a new LQG, as of the effective
date of the rule, submit an executive summary of its contingency plan,
in addition to the full contingency plan, to the emergency management
authorities; in particular, LEPCs. Although EPA believed the eight
elements previously discussed should be included as part of an
executive summary, the Agency asked for comment on the appropriateness
of this information.
    Roughly twice as many commenters supported the requirement for an
executive summary for LQGs than opposed it, arguing that EPA's proposal
to require a contingency plan executive summary would improve the
ability of emergency response teams to respond to an incident at an
LQG's facility. These commenters generally favored including at least
some of the eight elements as part of contingency plan executive
summary, although some commenters stated a preference for excluding
certain elements or suggested others for inclusion. Other commenters
suggested a document format, such as a table of contents or index that
allows the reader to quickly access needed information. Some commenters
disagreed with making submission of the executive summary a mandatory
requirement, while others advocated flexibility in terms of content and
submission. One commenter requested clarification as to the meaning of
``new LQG.'' Commenters who objected to this proposal believed that it
was unnecessarily prescriptive and duplicative.
    The Agency subsequently decided to modify language at Sec.
262.262(b)(8) to account for situations where an emergency coordinator
is continuously on duty in order to ensure consistency with final
regulatory text at Sec.  262.261(d). Otherwise, the Agency believes
these elements provide key information for use in the event of an
emergency, which will be beneficial to workers and the public in
general. EPA is also requiring new LQGs (i.e., facilities that become
LQGs after the effective date of this regulation) to develop and submit
an executive summary of their contingency plan to emergency authorities
in addition to a full contingency plan. As EPA expressed in the
proposal and states again in this final rule, developing the executive
summary during the initial writing of the contingency plan will not be
a significant extra step. As discussed subsequently, EPA is finalizing
changes regarding the name of this document (i.e., changing from
``executive summary'' to ``quick reference guide'') and clarifying how
existing LQGs are covered by this requirement. Additionally, as noted
elsewhere in this preamble, EPA is not finalizing proposed references
to LEPCs in terms of making arrangements with local authorities at
Sec.  262.16(b)(8)(vi) and Sec.  262.256 for SQGs and LQGs,
respectively, or submitting a quick reference guide to local emergency
responders at Sec.  262.262(a) for LQGs.
4. Technical Changes on Personnel Training Applicable to Large Quantity
Generators
    EPA has acknowledged that, since promulgation of personnel training
regulations in the 1980s, use of computerized training has become a
common practice for generators to teach their workers about the
management of hazardous waste. Due to the fact that many generators
already use this method for training workers, a modification that
reflects use of online computer training would simply bring the
hazardous waste personnel training regulations up to date with existing
industry practices. Therefore, EPA proposed to also allow a generator
to use online computer training, in addition to classroom instruction
and on-the-job training, to complete the personnel training
requirements. EPA requested comment on this proposed modification.
    The vast majority of commenters supported EPA's proposal to clarify
that online training is acceptable to meet hazardous waste generator
training requirements. However, some commenters suggested replacing the
word ``online'' with ``computer-based'' or ``electronic training'' or
identifying additional training options. EPA has considered these
comments and is modifying proposed Sec.  262.17(a)(7)(i)(A) by
inserting language that takes into account computer-based and/or
electronic training options.
5. Executive Summary Submission for Existing Large Quantity Generators
    As previously stated, EPA believes that a shorter document, such as
an executive summary of the contingency plan, which will be referred to
as a quick reference guide, will allow more effective response to an
incident at a facility. EPA is requiring new LQGs, in addition to a
full contingency plan, to develop and submit an executive summary of
their contingency plan to local emergency responders identified at
Sec.  262.262(a). With respect to existing LQGs, which have already
developed and submitted a contingency plan to local emergency
responders, EPA proposed not to require these facilities to develop an
executive summary because of the additional burden. However, the Agency
recommend that existing LQGs may want to submit an executive summary
when conducting a periodic update on their contingency plans to ensure
that the emergency responders have the appropriate information on hand
in the event of an emergency. EPA took comment on whether existing LQGs
that have already provided a full contingency plan should also be
required to submit an executive summary to the LEPC or, if appropriate,
the fire department or other emergency responders.
    Comments received indicated a very strong preference for requiring
an existing LQGs to submit an executive summary. However, certain
commenters suggested that submission should occur when existing LQGs
update their contingency plans to reflect, for example, personnel
changes, facility updates, waste relocations, emergency equipment
upgrades, and other operational or physical alterations. Other
commenters suggested that submission occur after a specified period of
time has elapsed.
    In the final rule, EPA is clarifying in new language at Sec.
262.262(b) regarding existing and new LQGs with respect to preparation
and submission of a quick reference guide. EPA is also adding new
language at Sec.  262.262(c) to require that all LQGs update their
quick reference guides, if necessary, whenever the contingency plan is
amended. EPA does not consider that the changes to the final
regulations in this rule would automatically require amendments to an
existing LQG's contingency plan under the requirements in Sec.
262.263(a).
    In response to certain comments, EPA is also replacing the term
``executive summary'' with the term ``quick reference guide'' in order
to more closely mirror the intended purpose of this document. The
Agency believes this

wording better conveys the fact that this document should be prepared
in a format enabling first responders to quickly access key information
in the event of an emergency. Lastly, as previously stated, EPA is not
finalizing references to LEPCs as the primary contact identified at
Sec.  262.16(b)(8)(vi) and Sec.  262.256 for SQGs and LQGs,
respectively. Instead, LQGs are directed to submit the quick reference
guide to local emergency responders identified at Sec.  262.262(a).
6. Other Changes
    EPA proposed to replace the word ``facility'' in these regulations
regarding emergency preparedness and prevention with the word ``site''
because ``facility'' is defined in Sec.  260.10 as specific to TSDFs.
Certain commenters discussed EPA's proposal. One commenter noted that
``site'' is too general and could be misinterpreted, while another
commenter noted that, although the term ``facility'' has a defined
meaning in RCRA, ``site'' does not. As a result of these comments, EPA
has reconsidered its proposal and decided not to change existing
regulations; consequently, the Agency is replacing the word ``site''
where it appeared in this context in the proposal with the word
``facility'' throughout final rule language. EPA has concluded that use
of the word ``facility'' in these regulations would also be more
consistent with the word ``facility,'' which is used and defined in
EPCRA emergency planning and notification regulations at 40 CFR part
355, as well as in Spill Prevention, Control and Countermeasures (SPCC)
plan regulations at 40 CFR part 112.
    EPA also proposed incorporating a minor revision associated with a
``comment'' in existing regulatory text into the final rule at Sec.
262.264 because the Federal Register style no longer permits this kind
of comment in new regulations. One commenter noted that certain text in
the comment in question, ``Applicable responsibilities for the
emergency coordinator vary, depending on factors such as type and
variety of waste(s) handled by the facility, and type and complexity of
the facility'' was not incorporated and suggested that this regulatory
text be retained to give some flexibility to those who must perform
certain emergency response duties. EPA will incorporate the suggested
text into Sec.  262.264.

D. What is EPA not including in the final rule?

    EPA asked for comment on certain potential revisions to existing
regulations that the Agency has subsequently decided not to address as
part of this final rule. Each is discussed in turn as follows.
1. Changes to Contingency Plan Regulations for LQGs: Including
Alternative Evacuation Routes in the Contingency Plan
    EPA identified a potential issue regarding whether a contingency
plan must contain information about alternative evacuation routes or
whether a different approach for addressing alternative evacuation
routes would be more effective. This issue resulted from stakeholder
discussions regarding the Agency's November 2004 Hazardous Waste
Generator Regulatory Program Evaluation (Docket ID No. RCRA-2003-0014).
EPA received a comment stating that it does not make sense to include
in the contingency plan hundreds of possible evacuation routes that may
be present at a facility, depending on its configuration, along with a
suggestion that, although regulations should be modified to require
that evacuation routes be posted and drills be conducted, regulations
should not require the routes to be in the contingency plan.
    EPA indicated that, although the Agency did not believe regulations
require all potential evacuation routes be identified, emergency
responders may need this type of information in order to determine the
most efficient and timely approach to reach the facility. Therefore,
EPA requested comment on the necessity of modifying the condition on
alternative evacuation routes in a contingency plan. EPA also asked for
comment on whether requirements to post evacuation routes and hold
annual evacuation training/drills would be an effective substitute to
maintaining alternative evacuation routes in the contingency plan and
whether regulations should discuss shelter-in-place as part of the
contingency plan.
    Slightly more commenters disagreed than agreed with requiring
alternate evacuation routes in contingency plans. Some commenters noted
that, while alternative evacuation routes should be considered, they
may not exist or may not be practical in certain instances. Another
commenter believed that the decision to require alternative evacuation
routes should rest with the LEPC. Commenters also offered suggestions
such as requiring identification of employee muster locations or
including a map with possible exists marked, with another commenter
stating that including evacuation routes only in the contingency plan
is not useful. EPA did not receive many comments regarding either
posting evacuation routes and holding annual evacuation training/drills
or discussing shelter-in-place, although the comments received
indicated support for these approaches.
    EPA understands that it may not always be possible to identify
alternate evaluation routes and likewise realizes that immediate
evacuation may not always be advisable due to the nature of the
emergency. Nevertheless, the Agency believes that, in the majority of
instances, evacuation will be the selected course of action and that it
will be possible to identify an alternate evacuation route. EPA also
believes comments on the proposed rule regarding this issue should be
considered by facilities when developing or amending contingency plans.
This would include posting evacuation routes, as well as muster and
shelter-in-place locations, within the facility (and/or making such
information available on cell phones) and conducting periodic training/
drills. These efforts would be undertaken, as necessary, in
consultation with local emergency responders. Due to the varying types/
varieties of wastes handled by facilities and differing physical
settings in which facilities are located, however, the regulations
should allow flexibility on the part of the LQG. Therefore, EPA is not
making any changes to Sec.  262.261(f), as proposed.
2. Changes to Contingency Plan Regulations for LQGs: A Potential
Electronic RCRA Contingency Planning Application
    EPA requested comment on whether contingency plans should be
submitted electronically to emergency responders to enhance their
ability to respond safely and effectively to an emergency at an LQG,
including what EPA's role should be in electronic submittals. In making
this request, EPA noted that the Agency currently makes numerous
electronic databases and tools available for helping first responders
with emergency management. A specific example cited was a suite of
software applications (Computer-Aided Management of Emergency
Operations), which is used to assist with data management requirements
under EPCRA. EPA asked whether an additional tool to manage contingency
plans under RCRA would be a useful addition to this software suite and
whether it would assist LEPCs by integrating the contingency plan with
their existing data on facilities, thereby making the information
available to the first responders in the most usable way. EPA also
inquired as to the feasibility/effectiveness of private sector parties
or

non-profit or governmental entities in developing software that LQGs
could use to provide important information to emergency responders
during an emergency.
    The majority of comments received supported electronic submission
of contingency plans to emergency responders, including five commenters
who suggested incorporating submissions of contingency plan information
into existing software applications--two of who preferred this to
direct submission of the plan--consistent with EPCRA requirements. Some
commenters cautioned against making electronic submission mandatory and
a few others indicated that electronic submission of a contingency plan
would preclude the need for submission of an executive summary.
Commenters opposed to this approach cited reasons such as unnecessary
burden and potential lack of availability during a power outage. Few
comments directly addressed the question of software development,
beyond mentioning existing software applications, although limited
feedback did not indicate support for this additional effort.
    Proposed regulations did not specify the format in which the
contingency plan must be provided nor did they discuss software
applications. EPA strongly encourages LQGs to work with first
responders to determine whether electronic submission of contingency
plans, including incorporating contingency plan information into
existing software applications, is an acceptable approach either in
lieu of or in addition to a hard copy submission. However, EPA believes
regulations must be sufficiently flexible to allow these decisions to
be made on a facility-by-facility basis; therefore, the Agency is not
making any changes to proposed regulations at Sec.  262.262(a)
regarding transmission of the contingency plan.
3. Additional Information for Contingency Plan Executive Summary
    EPA took comment on certain aspects of the contingency plan
executive summary, which the Agency is renaming as a quick reference
guide, related to element #1. This element discusses the types/names of
hazardous wastes in layman's terms and the associated hazard associated
with each waste present at any one time. EPA asked whether providing
information regarding identification of hazardous waste is sufficient
for ensuring that first responders will be able to identify the
appropriate actions to take during emergency responses. EPA also asked
whether referencing material in the North American Emergency Response
Guide, where appropriate, would be useful (i.e., likely reduce the time
it takes to get the necessary information for managing the situation)
to first responders and whether generators can easily access this
information to add to their contingency plans. EPA received few
comments related to element #1, although limited comments received
seemed to indicate support for including additional information. Given
the relative lack of comments received and to avoid being overly
prescriptive, EPA will not make it a requirement to include this
additional information. The Agency is not making any changes to what
was proposed at Sec.  262.262(b)(1).
    EPA also took comment regarding whether element #3 of the
contingency plan executive summary, which discusses identification of
any hazardous wastes where exposure would require a unique or special
treatment by medical or hospital staff, should also include a
requirement that the generator provide medical-related information for
exposure to hazardous wastes requiring special treatment; specifically,
whether this information is readily available to the generator for
inclusion in the executive summary of the contingency plan and whether
first responders would find this additional information useful for
responses. EPA received few comments related to element #3; as such,
there was no meaningful basis for justifying any additional regulatory
changes. Although EPA would encourage the generator, in consultation
with first responders, to include medical-related information
associated with exposure to certain hazardous wastes, the Agency is not
making any changes to what was proposed at Sec.  262.262(b)(3).
4. Contingency Plan Executive Summary for SQGs
    Another aspect of the contingency plan executive summary on which
EPA took comment involved whether an SQG should be required to develop
an executive summary of a contingency plan. In posing this question,
EPA noted that the major differences between the preparedness,
prevention, and emergency procedures regulations applicable to SQGs and
those applicable to LQGs are the development and implementation of a
contingency plan and more rigorous responsibilities for the LQG
emergency coordinator.
    Although SQGs are not required to develop contingency plans under
RCRA, EPA noted that many SQGs may already have developed contingency
plans to comply with other statutory and regulatory requirements and
that many of the elements of an executive summary may already be
available. For these reasons, EPA thought that the requirement for SQGs
to provide an executive summary of a contingency plan to first
responders could provide information that is critical during
emergencies with little extra effort being expended by the SQGs.
    Although a few commenters supported creation of an executive
summary for SQGs, the majority did not. Reasons provided included the
fact that a contingency plan is not required under RCRA and the belief
that this decision should be made by individual states, as well as the
potential for unnecessary burden and possibly duplication of effort.
Other commenters, while seeming not to support creation of an executive
summary, nonetheless suggested that EPA specify information that would
be included in the case of SQGs.
    As previously noted, SQGs may have already developed emergency
plans to comply with other statutory and regulatory requirements, such
as SPCC or EPCRA. Moreover, under existing RCRA regulations, SQGs are
required to attempt to make arrangements, as appropriate, with local
authorities regarding the types of wastes handled at their facilities.
Therefore, it is possible that these facilities have incorporated
information regarding hazardous waste management into these emergency
plans. EPA also recognizes that there exist a large number of SQGs
operating under RCRA, as compared to LQGs. For instance, as noted
elsewhere in this rulemaking, EPA estimates the number of SQGs to range
from approximately 49,900 to 64,300 while the number of LQGs is
estimated to be approximately 20,800.\103\ EPA is not making any
changes to existing regulations. However, given the prevalence of SQGs
and the associated potential for adverse impacts to human health and
the environment, the Agency strongly encourages these facilities, as a
best management practice, to develop a quick reference guide (i.e., new
term for the document referred to as an ``executive summary'' in the
proposed rule) and share this information with local emergency
responders.
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    \103\ See ``Regulatory Impact Assessment of the Potential Costs,
Benefits, and Other Impacts of the Final Hazardous Waste Generator
Improvements Rule.'' A copy of the analysis is available in the
docket for this action.
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5. Revisions to Applicability of Personnel Training
    EPA asked for comment on whether the regulations should
specifically identify positions at LQGs for which

hazardous waste training would be required and for which a written job
description is necessary, as well as what those job duties should be.
Although current EPA guidance excludes staff working in SAAs from the
training requirements, the Agency expressed a belief that such
personnel have a similar need to know the risks associated with
hazardous wastes as personnel working in central accumulation areas.
Therefore, EPA also asked for comment on whether personnel involved in
handling or managing hazardous wastes in SAAs should be required to
undergo hazardous waste training.
    EPA noted that, besides the statement indicating that personnel
must be able to respond effectively to emergencies by familiarizing
them with emergency procedures, emergency equipment, and emergency
systems, existing regulations are not specific about which personnel at
an LQG must complete the hazardous waste training. At issue is the
scope of these training standards, the applicability of the training
provision to employees who are not assigned to work in the CAAs (e.g.,
personnel working at SAAs), and whether to require training and a
written job description for specific types of employees working in
areas of hazardous waste management related to central accumulation
areas.
    With the assistance of staff from certain states (e.g.,
Connecticut, New York and Vermont), EPA previously identified the
following areas of hazardous waste management for which personnel
training and a written job description should be required: (1)
Completes and/or signs the hazardous waste manifest; (2) manages
hazardous waste in areas where hazardous wastes are accumulated; (3)
maintains hazardous waste inventory; (4) conducts daily or weekly
inspections of areas where hazardous wastes are accumulated and (5)
plans or responds to emergencies that involve hazardous wastes. EPA
believed this clarification would have the benefit of assisting LQGs in
determining more readily the scope of their hazardous waste training
program. Nevertheless, in the proposal, the Agency requested feedback
on this issue and others before making a final decision.
    Commenters were generally evenly divided on whether or not the
regulations should specifically identify positions at LQGs where
hazardous waste training and a written job description is necessary.
Supporters who agreed with the areas of hazardous waste management
identified by EPA also identified additional job functions, including
those not directly involved in handling hazardous waste that
effectively expanded the areas of waste management, while others
believed training should apply to employees who are handling hazardous
waste on a daily basis. Commenters who did not support specifying
positions and including written job descriptions expressed concern that
proposed revisions could, in practice, have the opposite of the
intended beneficial effect envisioned by the Agency. Certain commenters
also stated that LQGs would be in the best position to identify
employee training needs, while others recommended removing the
requirement for written job descriptions as they believe such
information does not benefit the facility or inspectors.
    Comments were roughly split on whether EPA should require hazardous
waste training for personnel who work at SAAs. Taking into account the
differing opinions of commenters, the existence of EPA guidance on this
point and the desire to maintain flexibility, the Agency has decided
not to revise Sec.  262.17(a)(7) to identify areas of hazardous waste
management for which personnel training and a written job description
are required or to specifically require training for staff at SAAs.
However, EPA would encourage all generators to take appropriate steps
to ensure that all employees who work at areas where hazardous waste is
accumulated, including at SAAs, or are otherwise involved in hazardous
waste management receive sufficient training to ensure that they are
familiar with proper handling and emergency procedures.
6. Revising Frequency of Communication With Emergency Response Agencies
    During discussions related to making and documenting arrangements
with the LEPCs, EPA noted that existing regulations do not specify how
frequently hazardous waste generators must make arrangements with local
authorities. Considering that some SQGs and LQGs may already coordinate
with their LEPCs annually as part of their EPCRA requirements, EPA
opined that it would not be necessary to include time frames as part of
this rule. The Agency, nevertheless, requested comments on whether the
regulations should mandate how frequently a generator must communicate
with its LEPC or local fire department if it has not otherwise
communicated with them.
    With the exception of one commenter who suggested that arrangements
should be updated annually, at a minimum, and more frequently if
modification is needed based on changes such as the type/amount of
waste generated, comments received did not indicate support for
revising existing regulations to specify time frames. These commenters
felt that the provisions necessary for LQGs to communicate with local
emergency response personnel are already in place or that communication
should only occur in the event that the facility has a major change in
its operations. Another commenter indicated that mandating how
frequently a generator must communicate with its LEPC or local fire
department would only work if corresponding changes were also made to
EPCRA requirements. EPA agrees with the majority of commenters and
continues to believe that it is unnecessary to mandate how frequently a
generator should communicate with its emergency response agency.
Therefore, the Agency is not making any changes to what was proposed at
Sec.  262.16(b)(8)(vi) for SQGs or to Sec.  262.256 for LQGs.
7. Applying Emergency Planning and Procedures Revisions to Parts 264
and 265
    Although revisions to emergency planning and procedure regulations
pertain only to generators (language in an expanded 40 CFR part 262),
many of these provisions were taken from part 265 with only slight
revisions. Therefore, EPA asked whether it would be appropriate/helpful
if proposed revisions to part 262 were also be made in the applicable
paragraphs of parts 264 (permitted facilities) and/or 265 (facilities
operating under interim status) to ensure consistency or whether the
regulations should remain unchanged despite the result that generators
and TSDFs would be left with some regulations that are very similar but
not exactly the same.
    Although the majority of those who commented supported making
changes to TSDF regulations, EPA is not making changes as part of this
rulemaking because the Agency believes that emergency planning and
procedure requirements at TSDFs can best be addressed on a facility-
specific basis through the permitting process.

XII. Technical Corrections and Conforming Changes to 40 CFR Parts 257,
258, 260 Through 265, 270, 273, and 279

    The proposed rule included 23 technical corrections and conforming
changes to various paragraphs in parts of 257, 258, 260 through 265,
270, 273, and 279 discussed at 80 FR 57984. These changes eliminate the
regulatory text for discontinued programs, identify areas where
conforming changes are

necessary, update existing regulatory text to account for new programs,
improve the readability of certain paragraphs, and correct
typographical errors. As an example, we proposed to revise Sec.  260.3,
which currently reads, ``As used in parts 260 through 265 and 268 of
this chapter.'' However, this text fails to account for additional
parts of the regulations that were promulgated after 1986, such as
parts 266, 267, and 270 through 273. Therefore, the Agency proposed to
revise this paragraph to correct this oversight to read, ``As used in
parts 260 through 273 of this chapter.''

A. What is EPA finalizing?

    The Agency is finalizing 20 of the 23 proposed technical
corrections. The three proposed technical corrections not being
finalized in this action are also discussed. In addition, EPA is
finalizing conforming changes throughout the text to account for the
reorganization and the changes in defined terms. Also note that EPA is
making a conforming change to Sec.  266.80(a) in this action to take
into account the revisions being made as a part of the ``Hazardous
Waste Export-Import Revisions'' Final Rule (Docket ID EPA-HQ-RCRA-2015-
0147; FRL-9947-74-OLEM).
    The technical corrections the Agency is finalizing are:
    (1) Revise Sec.  260.3, which previously read, ``As used in parts
260 through 265 and 268 of this chapter'' to currently read ``As used
in parts 260 through 273 of this chapter'' to account for additional
parts of the regulations that were promulgated after 1986, such as
parts 266, 267, and 270 through 273.
    (2) Modify the definitions of ``Treatability Study,'' ``Universal
Waste Handler,'' ``Universal Waste Transporter'' in Sec.  260.10 to
only capitalize the first word (e.g., ``Universal'') in order to match
the formatting in the rest of this section.
    (3) Remove the closed parenthesis after ``(e.g.,)'' from Sec.
261.1(c)(6).
    (4) Improve the readability of Sec.  261.4(a)(7), which previously
read, ``Spent sulfuric acid used to produce virgin sulfuric acid,
unless it is accumulated speculatively as defined in Sec.  261.1(c) of
this chapter'' to currently read ``Spent sulfuric acid used to produce
virgin sulfuric acid provided it is not accumulated speculatively as
defined in Sec.  261.1(c) of this chapter.''
    (5) Make conforming changes to citations that reference Sec.  261.5
to reflect the reorganization of these regulations. The citations where
references to Sec.  261.5 are revised include all the following:
Sec. Sec.  262.10(b), 262.10(l)(2), 262.201(b), 262.204(a),
262.210(b)(3), 262.210(d)(2), 262.211(e)(3), 262.213(a)(2),
262.213(a)(3), 262.213(b)(2), 262.216(b), 264.1(g)(1), 268.1(e)(1),
270.1(c)(2)(iii), and 279.10(b)(3). In Sec.  261.33(e) and (f), EPA is
removing the references to Sec. Sec.  261.5(e) and 261.5(a) and (g),
respectively, because the quantity limits for hazardous wastes are
contained in EPA's definitions for very small quantity generator, small
quantity generator, and large quantity generator. (Note: The comments
at the end of Sec.  261.33(e) and (f) remain.)
    (6) Replace the word ``waste'' with ``water'' in previous Sec.
261.5(e)(2), which read, ``A total of 100 kg of any residue or
contaminated soil, waste, or other debris resulting from the clean-up
of a spill, into or on any land or water . . . .'' Prior to 1985, the
word ``waste'' was ``water'' and the Agency was not able to determine
why this change occurred so we are reverting back to the original
regulatory language. (In the reorganization, this language is moved to
Sec.  260.10 and is contained in the definitions of large quantity