EPA Response: We intend to rescind the memo, as proposed, while addressing commenters' concerns, as discussed below.
Comment: One commenters believe the rationale cited in the proposed rule is not consistent with the designation process for D003 (Commenters 78). Two commenters believe that if EPA rescinds this memo, the rescission should be made specific to the types of waste that justify prohibition of accumulation in SAAs not adjacent to the point of generation (Commenter 78, 93). Another commenter believes that there may be an unintended consequence that SAAs for these high hazard wastes will be placed close to the point of generation in order to avoid having pick-ups of the waste every 90 days (Commenter 92).
EPA Response: It was not our intent to imply that all reactive hazardous wastes (D003) were required to be accumulated away from the initial area of generation and, therefore, could not be accumulated in SAAs. Likewise, it was not our intent that there might be a "Catch-22 where EPA does not allow remote accumulation and OSHA or the International Fire Code does not allow them to be accumulated at the point of generation" (Commenter 78). On the contrary, our intent was that if, for safety reasons, which may be driven by fire codes or OSHA regulations, a reactive hazardous waste (or other hazardous waste, for that matter) needs to be accumulated away from the initial area of generation, then that accumulation area should be considered a CAA, not an SAA. EPA is not prohibiting remote accumulation; rather, we are clarifying that it is more appropriate to regulate the remote accumulation area as a CAA than an SAA. Likewise, EPA did not intend to suggest that all storage sheds would necessarily be CAAs. For example, a storage shed that is located "at or near the point of generation" could be considered an SAA. The Agency hopes that generators will put the safety of their employees first when making decisions about the placement of accumulation areas for high hazard wastes, whether they are D003, or other waste codes.
Comment: One commenter requests that states be allowed to grant permission for SAAs to be located away from the point of generation (Commenter 189). The commenter notes there are other situations besides having reactive waste that would make it necessary to locate an SAA away from the point of generation.
EPA Response: We intend to rescind the memo, as proposed, while addressing commenters' concerns. Not only do SAAs have fewer regulations and safeguards associated with them than CAAs, but the regulations require that they must be "at or near the point of generation." EPA would not consider a shed outside a building where the waste is initially generated to be "at or near the point of generation." Nevertheless, as this term is not particularly specific, implementing regulatory agencies will retain authority in determining what they consider "at or near the point of generation."

Section 4.8.7 - "Under the control of the operator"

Comment: Two commenters agree with the proposed revisions (Commenters 159, 174).
Comment: One commenter finds the proposed revisions unduly burdensome and incompatible with the retail sector (Commenter 168).
EPA Response: To the contrary, the Agency requested comment on this issue in the hope of developing a list of best management practices that regulators and the regulated community could rely on to fulfill this existing requirement. The Agency deliberately did not propose or finalize any regulatory text to define the term "under the control of the operator" and therefore there is not an increased burden associated with this issue.
Comment: One commenter believes this term is subjective and the definition should be left to the opinion of the implementing agency (Commenter 217).
EPA Response: EPA agrees. The examples discussed in the preamble to the proposed rule and final rule are not an all-inclusive or exhaustive list of practices that may be used to meet the requirement that hazardous waste in an SAA must be "under the control of the operator." Implementing regulatory agencies may consider these examples or alternatives to meet the intent of the term, which is to ensure that someone familiar with the operations generating the hazardous waste is aware of and able to attend to the operations, if needed, while also providing some measure of controlled access.
Comment: 18 commenters propose the following (Commenters 89, 99, 128, 133, 168, 200, 201, 217, 219, 223, 224, 229, 230, 232, 240, 242, 248, 274):
· EPA not mandate a lock and key for each area under an operator's control (Commenters 89, 133, 200, 217, 219, 224, 274).· A SAA on a property that has restricted entry does not necessarily require that the specific satellite unit be locked (Commenter 128).· Change the definition to "at or near the point of generation where the operator controls access" (Commenter 99, 230, 242).· Add a requirement to periodically inspect SAA (Commenter 223, 229, 232, 248).· Include additional, broader examples in the preamble applicable to retail manufacturing sites where it is not feasible to have individually locked containers (Commenters 133, 168, 200, 217, 219, 224).· Remove or confine the examples to the preamble as it would be impossible to fully cover all instances of `under the control of the operator' (Commenter 240).· Visual contact by the operator generating the waste also constitutes "under the control of the operator" (Commenters 201, 229). Situations where the operator is regularly within view of the SAA during the course of their job, or a situation where the operator is expected to be able to observe any individuals that may enter or exit the SAA (Commenter 217).
EPA Response: EPA is not mandating any particular practice to the meet the intent of this provision. The examples discussed in the preamble to the proposed rule and final rule are not an all-inclusive or exhaustive list of practices that may be used to meet the requirement that hazardous waste in an SAA must be "under the control of the operator." Implementing regulatory agencies may consider these examples or alternatives to meet the intent of the term, which is to ensure that someone familiar with the operations generating the hazardous waste is aware of and able to attend to the operations, if needed, while also providing some measure of controlled access.
Comment: One commenter requested that the proposed changes not jeopardize a state's prior RCRA authorizations regarding less stringent SAA requirements (Commenter 174).
EPA Response: The Agency deliberately did not propose or finalize any regulatory text to define the term "under the control of the operator" and therefore this preamble discussion will not jeopardize a state's prior authorization.
Comment: Five commenters suggested EPA either provide more thorough definition of `operator' and allow multiple individual `operators' to access the SAA (Commenters 78, 97, 182, 196, 217):
· In a 24/7 production operation where one machine creates 1 gallon of spent solvent per shift; the technician operating the machine collects that gallon at the end of shift and pours it into a 55 gallon drum and leaves. The next technician takes over. In this instance the "operator" is the technician on shift, regardless of name. In a paint shop where multiple workers clean their spray guns at a common location and collect the waste, the operator is the foreman or supervisor of the paint shop. In a laboratory setting where multiple individuals cause waste to be created they can use a common container for the same or compatible waste. In this instance the operator is the individual in charge of the laboratory, this could be an instructor, primary investigator, or laboratory manager (Commenter 97).
EPA Response: The Agency believes that there can be more than one operator per SAA over time. For example, as employees change shifts over the course of a day, the role of the operator can be transferred from one employee to another. Likewise, the Agency believes that there can also be more than one operator per SAA at the same time. For example, multiple operators may be running laboratory equipment in the same room and share hazardous waste containers located in a single SAA (RCRA Online # 14703).
The term "operator" is already defined under 260.10 and therefore we did not propose a new definition. However, in the satellite accumulation area regulations, we use the phrase "under the control of the operator of the process generating the waste" [emphasis added]. Taken as a whole, this phrase is intended to refer to the individual(s) in charge of the particular process that generates the hazardous waste and is not intended to refer to the company that is responsible for the overall operation of the facility.

Section 4.8.8 - Other

Comment: One commenter believes that the following language should be added to the end of proposed §262.15(a)(1): "in accordance with §262.16 or 262.17, as appropriate" to clarify what would need to be done with a leaking or poor-condition container in a SAA (Commenter 178).
EPA Response: EPA agrees and has made the suggested change.
Comment: Marking containers in SAAs with the words "Hazardous Waste" (Commenters 121, 128, 168). SAA staff should not have to be fully trained to make such determinations.
EPA Response: Although the Agency did request comment in this area, the final regulations do not require training of personnel working in SAAs. Personnel that have access to or work in central accumulation areas, including those that move hazardous waste from a SAA to a central accumulation area, must be trained. As the ones actually generating hazardous waste, however, personnel working in SAAs need to be familiar enough with the chemicals with which they are working to know when they have generated a hazardous waste so that it will be managed in accordance with the RCRA regulations.

Section 4.9 - SQGs accumulating in drip pads or containment buildings

Comment: 39. Regarding SQGs accumulating hazardous waste on drip pads and in containment buildings  -  Section VIII.J.1-2., pages 57966-57969: Colorado has very few, if any, of these types of units and therefore has no comment on the proposal. (0085)
Response: No response necessary.
Comment: Comment D suggests that generators accumulating hazardous waste on drip pads should be allowed to take advantage of the very small quantity generator (VSQG) standards if their hazardous waste generation falls within VSQG limits. (0164)
Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter. In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations.  In fact, EPA has previously acknowledged that such a situation may occur where generators accumulating hazardous waste on drip pads are allowed to take advantage of the very small quantity generator (VSQG) standards if their hazardous waste generation falls within VSQG limits. Such an example would be, for example, wood treatment facilities that recycle their wood preserving wastewaters and spent wood preserving solutions under a particular solid waste exclusion (40 CFR 261.4 (a)(9)(iii)). However, allowing hazardous wastes to fall onto the ground is viewed as illegal disposal, and may result in enforcement action if inspectors determine that such disposal threatens human health or the environment. As such, it is prudent for all wood preserving facilities, even if conditionally exempt, to ensure that they are operating their drip pads in an environmentally safe and responsible manner. Therefore, VSQGs, accumulating hazardous wastes on drip pads must comply with 40 CFR subpart W requirements, except 40 CFR 265.445 (c).

Comment: DTSC is not aware of any SQGs using drip pads and believes California's incorporation of only subsections (d), (e) and (f) of 66262.34 for SQGs may serve as a model structure supporting that SQGs may not use drip pads. Should EPA pursue clarifying changes to allow SQGs to use drip pads (and containment buildings), DTSC requests EPA provide states the option of not adopting this provision. DTSC is concerned that many SQGs may not have the financial wherewithal to properly operate, maintain and close such units. (0174)
Response: The Agency is finalizing the regulations associated with the accumulation of hazardous waste on drip pads for SQGs and LQGs § 262.16(b)(4) and § 262.17(a)(3), respectively. This provision was previously found at § 262.34(a)(1)(iii) for LQGs only. This provision states that a generator with drip pads must comply with subpart W of 40 CFR part 265, and, consistent with existing regulations, must remove all hazardous wastes from the drip pad and associated collection system within every 90 days. Once the hazardous wastes is removed from a drip pad, LQGs will have up to 90 days and SQGs up to 180 days to accumulate the hazardous wastes without a permit or interim status. SQGs and LQGs would also have to maintain the following records at the facility by use of inventory logs, monitoring equipment, or any other effective means:  records that describe the procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and records that document each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal.

Similarly, the Agency has issued guidance concerning SQGs generating hazardous wastes at wood preserving facilities on drip pads so we have no reason to require SQGs drip pad operators to comply with LQG requirements  -  unless there was systemic problems which the Agency is unaware of. The Agency understands DTSC's concerns about the potential that "many SQGs may not have the financial wherewithal to properly operate, maintain and close such units." However, the states may always be more stringent than the federal program in their regulatory requirements.

Comment: Preamble Section VIII.J. In this section, EPA proposes to clarify that SQGs may store hazardous waste in drip pads and containment buildings. The existing regulations are unclear as to whether or not SQGs may store their waste in such units. CT DEEP disagrees with EPA that SQGs should be allowed to use these types of units (see Comment 18 above for CT DEEP's reasoning for this conclusion). Furthermore, CT DEEP believes that very few, if any, SQGs will be likely to need or want to operate these types of units. As noted in Comment 18 above, drip pads are typically operated by companies engaging in wood preserving (which are almost always LQGs), and containment buildings are almost always used for remediation projects that involve large amounts of waste (therefore also almost always LQGs.). CT DEEP believes that in the rare circumstance that an SQG needs or wants to use one of these units, they should be required to operate under the more protective LQG requirements. (0178)
Response: While the Agency understands CT DEEP's concerns, we have no evidence to suggest SQG wood preserving operations will pose unacceptable risks. Considering SQGs are limited in the amount of hazardous wastes they can accumulate at any one time (i.e., 6,000 kg), that also may alleviate concerns. Similarly, the states may always be more stringent than the federal program in their regulatory requirements for drip pad operations.

Comment: In this section, EPA also proposes to require SQGs to comply with the same marking and labeling requirements as LQGs for their drip pads and containment buildings. CT DEEP does not support this part of the proposal, since we do not believe it is even appropriate for SQGs to use these types of units. These types of storage units are complicated and require a fairly high level of knowledge and expertise to properly construct and operate.

In fact, SQGs are actually prohibited from storing hazardous waste in drip pads and containment buildings in Connecticut's current hazardous waste regulations for these reasons. See also comment 25 below. (0178)
Response: The Agency is in disagreement with CT DEEP on this provision. The Agency believes wood preserving operations that generate SQG quantities of hazardous waste should be allowed to comply with SQG requirements and conditions  -  just like other type of generators. Regarding marking and labeling, the Agency is not finalizing the provision that would require SQGs and LQGs to mark drip pads with the words "Hazardous Waste" in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc. As stated by one commenter, labeling the entire drip pad with the words "Hazardous Waste" is inaccurate because not all of the materials on the drip pad are hazardous waste, such as the poles and lumber being treated on the drip pad.  Finally, the drums stored on the drip pad or drum storage area that contain hazardous waste and the drum storage area would already be labeled with those words.  Similarly, identifying the hazards of wastes is inappropriate because drip pads contain both wastes and components of treated wood operations.

Similarly, we have modified where inventory logs or records for drip pads must be kept. We had proposed that the information must be in close proximity to the drip pad. Commenters indicated that having records in close proximity may not always be practical or even desirable. In response to comments, we have modified the regulations so that the records must be kept on site and readily available for inspections.

Comment: 57949 - (Conditions for exemption) for on site management of waste in containers, tanks, drip pads and containment buildings.
:: Clarify the status of units similar to drip pads used to collect waste and direct it to a sump for transfer to an exempt waste water treatment unit. The pad itself is not a tank, but does it fall within the definition of "ancillary equipment?" Does the WWTU have to discharge, or can it be a unit established to eliminate the discharge of waste water? (0214)
Response: EPA does not define "pad" under the federal RCRA regulations, other than "Drip Pads" in 40 CFR 260.10 which as EPA understands this comment, is not the specific unit in question (i.e., the commenter asks about the "status of units similar to drip pads.." but specifically not drip pads).     However, EPA defines "ancillary equipment" as "any device  including, but not limited to, such devises as piping, fittings, flanges, valves, and pumps..."  40 CFR 260.10.  Whether or not a particular structure may be considered "ancillary equipment" to a tank (i.e., part of a "tank system" as defined in 260.10) would be a fact-specific determination, and is beyond the scope of this rule.  Regarding whether or not tank system that meets the definition of an exempt WWTU under RCRA must have a discharge, or alternatively, may be a unit established to eliminate the discharge of wastewater, EPA has previously stated that the WWTU definition covers "...devices in industrial wastewater treatment systems which (1) produce a treated wastewater effluent which is discharged into surface waters or into a POTW sewer system and therefore is subject to the NPDES or pretreatment requirements of the Clean Water Act or (2) produce no treated wastewater effluent as a direct result of such requirements."  Emphasis added. See November 17, 1980 Federal Register, 45 FR at 76078; and September 2, 1988 Federal Register, 53 FR at 34080.
Comment: 57951
:: Drip pad requirements already require the generator to document periodic pad cleaning - not sure that more is necessary. However, it is necessary to spell out how these provisions will affect CESQGs that have to construct their pads in accordance with Subpart W in order to maintain their exemption, for recycled drippage. The CESQG rule should include specific references to the drip pad exclusion 261.4(a)(9).
Response: Any wood preserving facilities that want to take advantage of the exclusion at 40 CFR 261.4(a)(9) must comply with the drip pad standards in 40 CFR subpart W, as a condition of the exclusion itself, even if the exclusion results in the owner/operator becoming a CESQG (VSQG).  See 261.4(a)(9)(iii)(D), which states, "Any drip pad used to manage the wastewaters and/or spent wood preserving solutions prior to reuse complies with the standards in part 265, subpart W of this chapter, regardless of whether the plant generates a total of less than 100 kg/month of hazardous waste." EPA thanks the commenter for the suggestion of cross-referencing the VSQG regulations with the specific exclusion, but notes that the exclusion is not limited to VSQGs, operators should already well familiar with the scope and applicability of the exclusion, and such a reference would likely have to be added to all of the generator categories for consistency, which would run counter to the goal of simplifying the generator regulations.
Comment: :: Containment building turnover - demonstration that the unit turns over at least once every 90 days. (0214)
Response: Generators are responsible for describing in their records how waste accumulated in containment buildings is removed with every 90 days.

Comment: :: Not sure how that will work as a practical matter. A unit collecting blast furnace slag is partially certified for treatment of the slag, when excess slag accumulates in amounts that cannot be re-used within the process. The slag does not appear to have been accumulated speculatively (check on site generator provisions for speculative accumulation documentation changes in 2015 FR). (0214)
Response: If we understand the comment correctly, yes, the generator would have to refer to the speculative provisions in 40 CFR 261.1 (c) (8) to determine how to address excess slag accumulation.
Comment: :: Container inspections -Does EPA's change include satellite containers?
Response: The Agency does not understand the context of this comment. If the comment refers to container inspections, the Agency did not change inspection requirements for generators.
Comment: :: WWTUs that manage hazardous waste prior to discharge should also be subject to weekly inspections and corrective action. We have far more environmental damage incidents associated with WWTUs than with tank storage.
Response: The Agency does not understand the context of this question and therefore we cannot comment. However, in any case, this comment is beyond the scope of the proposed rule.

Comment: :: SQGs accumulating HW on drip pads - change in language now allows? Previous language only allowed CESQGs (pursuant to an exclusion) and LQGs. (0214)

Response: Yes, the Agency is proposing that SQGs be allowed to accumulate hazardous waste on drip pads consistent with complying with subpart W requirements and all other requirements applicable to SQGs.
Comment: 57968
:: The only circumstance I can envision for a generator to transfer wastes from a container to a drip pad would be if a generator has had a spill, and is bringing the contaminated soil onto the drip pad to conduct soil washing or similar treatment.  (0214)
Response: The Agency is unfamiliar with such a scenario, but such a scenario may be possible. If such a scenario did occur, the facility would probably need to contact the state to make sure such treatment was allowable without having to obtain a RCRA permit.

Comment: :: Under Subpart W, a drip pad is a structure used to convey treated wood preservative drippage, precipitation or runoff to an associated collection system. I would question whether a pad used to manage other wastes would still be defined as a drip pad, rather than a waste pile or surface impoundment. (0214)
Response: The Agency agrees with this comment but cannot conceive of why a wood treater wood would manage other wastes on a drip pad rather than in a container because of the potential regulatory consequences.

Comment: :: Containment Buildings for SQGs
o If the SQG regulations are modified to allow management in containment buildings, clarify how to differentiate between containment buildings and manufacturing process buildings with floor sumps that collect waste and direct it to a waste water treatment unit. Specific examples include hangars used to strip paint from aircraft, where rinse waters are directed to floor drains and trenches that may discharge to a pretreatment unit or to a rinse water recycling system. Electroplating operations are also usually located within a containment system with a sump to collect dragout and directs it to the WWTU. At what point do incidental spills become routine management practices? (0214)

Response: As described at subpart DD of part 265, containment buildings are specially designed and constructed buildings that address the waste accumulation of hazardous wastes. Manufacturing process buildings may or may not have similar design specifications, but if they are not generating or accumulating hazardous wastes, they need not comply with subpart DD requirements.
Comment: 80 FR 57967, column 1 (VIII., J., 1.)
Accumulation of Hazardous Waste on Drip Pads
The MPCA supports the proposed revisions to clarify the requirements applicable to SQGs accumulating hazardous waste on drip pads for the reasons discussed by the EPA at 80 FR 57967-57968. The MPCA notes that confusion regarding these requirements is likely very prevalent under the existing federal regulation language among not only generators, but also among regulators, as evidenced by Minnesota's current regulations, which incorrectly explicitly allow SQGs to accumulate hazardous waste on drip pads for the same 180 day interval afforded to SQGs for accumulation of hazardous waste in containers or tanks. Unfortunately, the EPA's first clarifying guidance publication referenced at 80 FR 57967 was not issued (1996) until after Minnesota had already adopted its state regulation regarding SQG drip pad accumulation in 1994 [18 SR 1751; revising Minn. R. 7045.0292, Subp. 5, Item B], based on the MPCA's then-understanding of the applicable federal requirements. The MPCA was unaware of this resultant gap between its state regulatory text and the interpretation of the federal regulations until reviewing this proposal. However, the MPCA notes that it is not aware of any SQGs in Minnesota currently or with known plans in future to accumulate hazardous waste on drip pads, and therefore the MPCA believes it is likely this disparity has not created any risk to human health or the environment in Minnesota.

80 FR 57968, column 2 (VIII., J., 2.)
Accumulation of Hazardous Waste in Containment Buildings
The MPCA supports the proposed revisions to clarify the requirements applicable to SQGs accumulating hazardous waste in containment buildings for the reasons discussed by the EPA at 80 FR 57968-57969. The MPCA notes that Minnesota does not currently allow any generators to accumulate hazardous waste in containment buildings without obtaining a TSDF Permit, and thus this clarification will be inapplicable in Minnesota [Minn. R. 7045.0292]. (0232)
Response: The Agency appreciates MPCA's comments. States may be more stringent than the federal program and in this case have chosen to be regarding containment buildings.
Comment: Pages 57966-68:
J. SQGs Accumulating Hazardous Waste on Drip Pads and in Containment Buildings (40 CFR 262.34(d))
1. Accumulation of Hazardous Waste on Drip Pads

DC agrees with the proposed change.

DC suggests the use of a log (electronic or paper, similar to that proposed for tanks) would be sufficient to show how much time has elapsed since the creation / identification of the waste on a drip pad. The accumulation time clock should begin when the waste is generated / identified, as with waste in containers; transferring waste from a drip pad to a container or a tank should not allow the Generator additional storage time. The modified regulations should follow the model for containers: a facility can collect Hazardous Waste in small bottles and then consolidate to a 55 gallon drum; this does not gain them additional storage time, the clock starts when the first drop of waste is identified regardless of the container it is placed in - tanks and drip pads should be treated similarly.

Page 57968:
2. Accumulation of Hazardous Waste in Containment Buildings

DC agrees that making the regulations for all containment buildings (both at SQGs and LQGs) match the more stringent requirements would be beneficial. (0248)
Response: The Agency appreciates the above comments from the DC government. We believe the final rule responds to DC's comments. The Agency is finalizing the regulations associated with the accumulation of hazardous waste on drip pads for SQGs and LQGs § 262.16(b)(4) and § 262.17(a)(3), respectively. This provision was previously found at § 262.34(a)(1)(iii) for LQGs only. This provision states that a generator with drip pads must meet certain conditions for exemption from permitting and technical requirements for drip pads. Specifically, such a generator must comply with subpart W of 40 CFR part 265, and, consistent with existing regulations, must remove all hazardous wastes from the drip pad and associated collection system within every 90 days. Once the hazardous wastes was removed from a drip pad, LQGs would have up to 90 days and SQGs up to 180 days to accumulate the hazardous wastes without a permit or interim status. SQGs and LQGs would also have to maintain the following records at the facility by use of inventory logs, monitoring equipment, or any other effective means:  records that describe the procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and records that document each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal.

Comment: 40 CFR 262.16 Conditions for exemption for a small quantity generator...

:: 262.16 (5) an (5) (ii) an d(iii) limits storage in buildings to 90 days  -  this looks like a typo please increasing to 180 days to maintain consistency with other SQG requirements.

:: 262.16 (5) (i) and also 262.17 requires that a professional engineer certify that the building complies with the design standards specified in 40 CFR 265.1101. This requirement is overly onerous for anyone other than a permitted TSDF and would have very little benefit especially considering that some facilities may use a flammable storage cabinet in a building as the central accumulation area. (0280)

Response: The Agency has chosen not to increase SQG accumulation requirements for containment buildings to 180 days because of the complexity associated with these type units. Similarly, because of the complexity associated with containment buildings, the Agency believes certification by a professional engineer is needed for SQGs accumulating hazardous wastes in containment buildings.
Section 4.9.1 - SQGs comply with technical standards for unit but otherwise SQGs

Comment: - EPA should allow SQGs that accumulate hazardous waste on drip pads without a permit or interim status 180 days to comply with related technical standards; (0093)

Response: The Agency agrees with this commenter and has finalized the regulations to allow for this waste accumulation time period.
Section 4.9.2 - 90-day limit applies to accumulation in drip pad or containment building

Comment: EPA has proposed to modify the regulations at § 262.34(d) to require SQGs that accumulate hazardous waste for 90 days or less on drip pads without a permit or interim status to comply with the technical standards set forth in 40 CFR Part 265 subpart W. Id. at 57966. USWAG strongly urges EPA to extend the requirements in this section to apply to SQGs that accumulate hazardous waste for 180 days instead of 90 days. (0093)
Response: The Agency agrees with this commenter and has finalized the regulations to allow for this waste accumulation time period.
Comment: Regarding certain other proposed provisions, TWC is concerned that, in its effort to consolidate regulations and make unit-specific regulations more uniform, EPA failed to take into account the unique nature of drip pads as hazardous waste accumulation units, causing these provisions to be unduly burdensome or unworkable when applied to drip pads. Most importantly, the proposed rule and the preamble fail to recognize that generators' obligation to remove hazardous waste from drip pads every 90 days is distinct from, and does not count toward, large quantity generator (LQG) and small quantity generator (SQG) hazardous waste accumulation time limits. If this discrepancy is not resolved, generators accumulating hazardous waste on drip pads could be faced with excessive and infeasible hazardous waste shipping requirements. We hope that our comments assist EPA in remedying this and other issues. (0164)
Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations.
Comment: Of primary concern to TWC is the proposed rule and preamble's failure to acknowledge that the obligation that generators remove hazardous waste from drip pads every 90 days is separate and in addition to the hazardous waste accumulation time limits imposed on large quantity generators (LQGs) and small quantity generators (SQGs). In Comment A, TWC discusses this concern and suggests changes to three proposed provisions to remedy this issue. (0164)
Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter. In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations.
Comment: A. Application of the 90-Day Accumulation Limit to Generators Who Accumulate Hazardous Waste on Drip Pads

In the preamble and in the proposed rule, EPA appears to conflate two separate time limits: (1) the obligation that generators clean drip pads every 90 days [Footnote 1: This obligation is located at 40 C.F.R. § 262.34(a)(1)(iii) in the current regulations.] and (2) the 90-day or 180-day "clock" for accumulation applied to LQGs and SQGs. [Footnote 2: These "clock" provisions are located at 40 C.F.R. §§ 262.34(a) (LQGs) and 262.34(d) (SQGs) in the current regulations.] See 40 C.F.R. §§ 262.16(b)(4), 262.16(b)(6)(ii)(C) (SQGs), 262.17(a)(5)(ii)(C) (LQGs); 80 Fed. Reg. 57,951, cols. 2 - 3, 57,968, col. 1. These are, in fact, two separate time limits under current practice and the existing regulations and, if combined, would create an untenable burden on wood treatment facilities.

For SQGs and LQGs accumulating hazardous waste on drip pads, the proposed rule would require generators to "[u]se inventory logs, monitoring equipment or records to identify the date upon which each period of accumulation begins." See §§ 262.16(b)(6)(ii)(C) (SQGs), 262.17(a)(5)(ii)(C) (LQGs). The proposed rule also would add a provision requiring generators to maintain "[a] written description of procedures that will identify the date hazardous waste first entered the drip pad and ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days." See § 262.16(b)(4)(i) (SQGs), § 262.17(a)(3)(i) (LQGs) (emphasis added).

EPA explains that it is adding these provisions to ensure that the generator operating a drip pad does not exceed its "90-day accumulation time limitation." See 80 Fed. Reg. 57,951, col. 3. EPA further explains that the 90-day accumulation documentation is important for SQGs because they can move waste from one type of accumulation unit to another as long as the accumulation time on the drip pad does not exceed 90 days and the total accumulation time on the drip pad and other units does not exceed 180 days. See id. at 57,951, col. 3, 57,968, col. 1. [Footnote 3: EPA states the following regarding SQG accumulation of hazardous waste on a drip pad: "The Agency is proposing that the SQG have up to a total of 180 days to accumulate the hazardous wastes, which includes both the time the waste is on a drip pad and when it is in a tank or container, but that the total amount of time to accumulate the hazardous waste on the drip pad must not exceed 90 days." 80 Fed. Reg. 57,968, col. 1.] These statements demonstrate either an unintentional misinterpretation of existing regulations and standard industry practice, or a drastic and infeasible change in the regulation of generators accumulating hazardous waste on drip pads. EPA proposes to add documentation obligations to two separate 90-day time limits, and then describes them interchangeably as if they are one in the same.
Response: The commenter is correct. There was an unintentional misinterpretation of the existing regulations by the Agency and, in the final rule, we are not making the proposed changes, and are maintaining the existing regulations.

Comment: As the regulations currently exist, generators (both LQGs and SQGs) accumulating hazardous waste on drip pads are required to clean the drip pads every 90 days. [Footnote 4: The current 40 C.F.R. § 262.34(a)(1)(iii) states that, to avoid permitting or interim status requirements, a generator accumulating hazardous waste on drip pads must "compl[y] with subpart W of 40 CFR part 265 and maintain[] the following records at the facility: (A) A description of procedures that will be followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and (B) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal." In the current regulations, this drip-pad-specific provision has been interpreted to apply to SQGs accumulating hazardous waste on drip pads and is separate from the general provision that LQGs may accumulate waste on-site for 90 days or less.] The separate 90-day (LQG) or 180-day (SQG) accumulation clock does not start until the hazardous waste has been moved to the designated 90-day or 180-day storage area. [Footnote 5: The 90- or 180-day accumulation clock also does not include the time that the hazardous waste initially accumulated on a drip pad is then accumulated (after being removed from the drip pad at least every 90 days) in a satellite accumulation area under the current § 262.34(c) and proposed § 262.15.] EPA's technical guidance document clearly states that this is the procedure for generators accumulating hazardous waste on drip pads. See U.S. Envtl. Prot. Agency, Wood Preserving Resource Conservation and Recovery Act Compliance Guide: A Guide to Federal Environmental Regulation, EPA-305-B- 96-001, at section 5-17 (June 1996). The guidance document poses the following question: "After cleaning the drip pad and the collection system (sumps) every 90 days, as required for large and small quantity generators, how long can the hazardous waste remain on site?" EPA answers by stating, "If the hazardous waste is placed in satellite accumulations areas, the waste can remain there until the drum is full. Once the drum is full, it must be dated and moved to the hazardous waste storage area. The 90 or 180 day accumulation clock starts once the hazardous waste has been sealed into a drum or placed in a tank." See id.

In contrast, the proposed regulation suggests that the 90-day (LQG) or 180-day (SQG) accumulation clock starts the minute a generator places hazardous waste on the drip pad. Under this interpretation, LQGs could be required to clean their drip pads much more frequently in order to schedule a transfer of the hazardous waste before the single 90-day-limit ends. SQGs using drip pads may fare little better; their allowed accumulation time of hazardous waste from drip pads, once removed from the drip pad, may be cut in half, from the current 180 days to 90 days. Generators may be forced to constantly ship drums with very little hazardous waste in them. TWC presumes that EPA did not intend to upend the current process, which functions effectively, and requests that this issue be clarified in the final rule.

As a separate point but related to this discussion, EPA should not require that generators accumulating hazardous waste on drip pads "identify the date hazardous waste first entered the drip pad" because it is duplicative and unnecessary. See §§ 262.16(b)(4)(i) (SQGs), 262.17(a)(3)(i) (LQGs). Under existing regulations, each waste removal is required to be documented to ensure that hazardous waste does not remain on the drip pad for more than 90 days. [Footnote 6: In the current regulations, this provision is located at § 262.34(a)(1)(iii)(B) and applies to LQGs and SQGs. In the proposed reorganization, the drip pad hazardous waste removal documentation provision is located at §§ 262.16(b)(4)(ii) (SQGs), 262.17(a)(3)(ii) (LQGs).] The existing documentation provision therefore already provides the assurance that EPA seeks, i.e., that hazardous waste does not remain on the drip pad for more than 90 days.

The use of a drip pad as a hazardous waste accumulation unit is independent of generator status and the accumulation times associated with each generator category. The drip pad is unique to the wood treating industry and is not a structure driven by the volume of waste generated. Hazardous waste from a treating operation comes from multiple sources, such as drippage and residuals from the drip pad, trash and debris from the treating process, waste from the tank farm, wastewater treatment residuals, and personal protective equipment (PPE). It would be impractical to handle these wastes differently depending on whether they were first accumulated on a drip pad. Furthermore, once this issue is clarified, the proposed provision requiring drip pad operators to document the date hazardous waste first enters the drip pad will be unnecessary.

TWC assumes that, in its proposed rule, EPA did not intend such a drastic policy change as described above. Therefore, TWC requests that EPA make the following changes to the rule:

1. Remove all references to drip pads in 40 C.F.R. § 262.16(b)(6) (SQGs) and 40 C.F.R. § 262.17(a)(5) (LQGs). [Footnote 7: This Comment (Comment A) explains why §§ 262.16(b)(6)(ii)(C) (SQGs) and 262.17(a)(5)(ii)(C) (LQGs), requiring hazardous waste generators to "use inventory logs, monitoring equipment or records to identify the date upon which each period of accumulation begins" should not be applied to drip pad operations. In Comments B and C, TWC explains why we object to the two other labeling and marking obligations of §§ 262.16(b)(6)(ii) and 262.17(a)(5)(ii) (subsections (A) and (B)). To simplify our comments, TWC requests here that EPA entirely remove the reference to drip pads from §§ 262.16(b)(6) and 262.17(a)(5).] Drip pads are a unique hazardous waste accumulation unit and do not appropriately fit with proposals contained in these two provisions.

2. Revise the proposed SQG-related provision at § 262.16(b)(4) to state the following:

"(4) Accumulation of hazardous waste on drip pads. A small quantity generator may accumulate hazardous waste on drip pads without a permit or without having interim status provided that it complies with 40 CFR part 265 subpart W. The generator must maintain at the facility the following records by use of inventory logs, monitoring equipment, or any other effective means: (i) A written description of the procedures that will ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and (ii) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal."

These changes [Footnote 8: "[F]or 90 days or less" was removed from § 262.16(b)(4) and "identify the date hazardous waste first entered the drip pad and" was removed from § 262.16(b)(4)(i).] will achieve EPA's goal of clarifying the obligations that apply to SQGs accumulating hazardous waste on drip pads (removing hazardous waste from the drip pad every 90 days, complying with 40 C.F.R. part 265 subpart W management standards, and abiding by all other SQG-specific provisions) without imposing a redundant, unnecessary documentation obligation and confusing two separate accumulation time limits.

3. Revise the proposed LQG-related provision at § 262.17(a)(3)(i) to state the following:

"(i) A written description of procedures that will ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days."

Deleting "identify the date hazardous waste first entered the drip pad and" will remove an unnecessary and duplicative documentation obligation.

TWC respectfully urges EPA to adopt these three changes to ensure that the proposed regulations do not unintentionally alter the established interpretation of regulations applied to hazardous waste accumulation by generators on drip pads. This issue is of vital importance to the wood treating industry. (0164)
Response: The following response summarizes the above comments from Commenter 0164/290 or the Treated Wood Council (TWC). The responses are organized by the major sections of TWC's comments to the Agency.
       A: Application of the 90-day accumulation limit to generators who accumulate hazardous waste on drip pads
Response: The Agency is maintaining the regulations originally found at 40 CFR 262.34 (a)(1)(iii) for both LQGs (and now) SQGs that accumulate hazardous wastes on drip pads.  Both SQGs and LQGs must comply with Subpart W of 40 CFR part 265; and remove all wastes from the drip pad at least once every 90 days. Any hazardous wastes removed from the drip pad by an LQG is then subject to the 90-day accumulation limit while an SQG is subject to the 180-day accumulation limit if the hazardous wastes are being managed in satellite accumulation areas prior to being moved to a central accumulation area.
      B: Requiring drip pads to be labeled with the words "hazardous waste."
Response: The Agency is not finalizing the provision that would require SQGs and LQGs to mark drip pads with the words "Hazardous Waste" in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, etc. Based upon comments from the industry association representing wood treaters, and upon reexamination of how this proposed provision would be implemented in practice, EPA agrees with the commenter's observation that labeling the entire drip pad with the words "Hazardous Waste" would be inaccurate because not all of the materials on the drip pad are hazardous waste, such as the poles and lumber being treated on the drip pad. Also, identifying the hazards of wastes is inappropriate because drip pads contain both wastes and components of treated wood operations. Finally, any containers stored on the drip pad or drum storage area that contain hazardous waste and the drum storage area would already be labeled with the words "Hazardous Waste."
      C: Requiring Generators who accumulate hazardous waste on drip pads to use inventory logs, monitoring equipment, or records to identify drip pad contents and associated hazards.
Response: The commenter opposed these proposed requirements, noting that these requirements were duplicative and unnecessary.  Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees, and in the final rule, the Agency has not modified the existing record keeping requirements for generators that accumulate hazardous waste on drip pads. More specifically, both SQGs and LQGs must maintain on site at the facility the following records readily available for inspection:
            (A) A written description of procedures that are followed to ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and
            (B) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal.
      D. Generator closure regulations
Response: The final rule requires LQGs to notify their authorized state or EPA region when they intend to close their facility, and notify subsequently if the facility has met or not met the applicable closure performance standards.  When closing a waste accumulation unit associated with drip pad operations, either place a notice in their operating record that they have closed the unit, or notify their authorized state or EPA region they intend to close and notify also if the facility has met or not met the applicable closure performance standards.
Similarly, the final rule maintains the general closure performance requirements for drip pads previously found at 40 CFR 265.111 and 265.114 and 40 CFR subpart W (except 40 CFR 265.445 (c)). However, the regulatory citations change. LQGs must comply with the general closure performance standard provisions previously found at 40 CFR 265.111 and 265.114, but now found at 40 CFR 262.17 (a) (8) (iii) (A) (1) and (3) as well as the specific closure requirements for drip pads at 40 CFR 265.445 (a) and (b).
      E: Including drip pad operators in the proposed episodic generator provisions
Response: Generators who are drip pad operators may take advantage of the episodic generation provisions, if as result of a planned or unplanned event, a change in regulatory category were to occur.  For instance, an upset condition during production could occur where removal of all wastes from the drip pad had to occur resulting in an unexpected change in generator category.  However, episodic generation provisions would still apply to wastes once removed from the drip pad. However, changes in regulatory category; i.e., changes in the amount of hazardous waste generated when removed from a drip pad, based strictly on changes in production would not be a reason to take advantage of this provision.
       F: Requiring LQGs and SQGs operating drip pads to maintain records of drip pad inspections
Response: The Agency did not change the existing inspection recordkeeping requirements for drip pads found at 40 CFR 265.444 (b) and subsequently at 40 CFR 265.443 (m) for remedial action required if deterioration or leakage is detected.
Comment: Section VIII.J.1 (Page 57968): One State believes the accumulation timeframe should be the same for SQGs no matter the unit type. The SQG accumulation timeframe limitation should be 180 days for containers, tanks, or drip pads. Being consistent will help improve and encourage compliance.

Section VIII.J.2 (Page 57968): One State believes the accumulation timeframe should be the same for SQGs no matter the unit type. The SQG accumulation timeframe limitation should be 180 days for containers, tanks, or containment buildings. Being consistent will help improve and encourage compliance. (0217)
Response: The Agency has modified the accumulation time period for SQGs accumulating hazardous wastes once removed from drip pads to 180 days, consistent with SQGs accumulating hazardous wastes in containers and in tanks. However, because of the complexity associated with containment buildings, we continue to require SQGs accumulating hazardous wastes in containment buildings to remain at 90 days  -  or the accumulation time period for LQGs.
Section 4.9.3 - Procedures for documenting 90-day limit

Comment: iii. Drip Pad and Containment Building Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3)).
Current regulations found at 262.34(a)(1)(iii)(A) and (B) require a description of the procedures that will be followed in order to ensure all wastes are removed from the drip pad and associated collection system at least once every 90 days, and document the waste removed, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal and/or (iv) a containment building certified by a PE; a written description of procedures to ensure that each waste volume remains in the unit for no more than 90 days, waste generation and management practices for the facility showing that they are consistent with respecting the 90 day limit, the procedures are complied with, or the unit is emptied at least once every 90 days.
DTSC supports the amendments to 40 CFR 262 regarding other accumulation unit marking and labeling and inventorying. (0174)

Response: The Agency is reverting back to the pre-existing regulatory text for hazardous wastes accumulated on drip pads and in containment buildings to avoid confusion. The Agency inadvertently modified the regulatory text incorrectly in the proposed rule.
Section 4.9.4 - Other

Comment: D. Generators Accumulating Hazardous Waste on Drip Pads and Very Small Quantity Generator Conditions

In the proposal, EPA takes the position that "CESQGs [now VSQGs] are prohibited from using a drip pad . . . ." See 80 Fed. Reg. 57,974, col. 1. However, we believe this statement is incorrect because no such prohibition is stated in the current or proposed hazardous waste generator regulations. The statement also contradicts an EPA technical guidance document stating, "Only the smallest wood preserving facilities would normally qualify for [the CESQG] category," implicitly recognizing that generators accumulating hazardous waste on drip pads could be regulated as CESQGs if they fall within the CESQG hazardous waste accumulation limits. See Wood Preserving Guide, supra, at section 3-8.

TWC requests that EPA add language similar to that contained in § 262.16(b)(4) (SQG accumulation of hazardous waste on drip pads), as modified under Comment A, to § 262.14 (conditions for exemption for a VSQG). The suggested language for § 262.14 is as follows:

"Accumulation of hazardous waste on drip pads. A very small quantity generator, operating in accordance with 40 C.F.R. § 261.4(a)(9)(iii), may accumulate hazardous waste on drip pads without a permit or without having interim status provided that it complies with 40 C.F.R. part 265 subpart W. The generator must maintain at the facility the following records by use of inventory logs, monitoring equipment, or any other effective means: (i) A written description of the procedures that will ensure that all wastes are removed from the drip pad and associated collection system at least once every 90 days; and (ii) Documentation of each waste removal, including the quantity of waste removed from the drip pad and the sump or collection system and the date and time of removal."

With this addition, VSQGs accumulating hazardous waste on drip pads would be required to comply with the drip-pad-specific regulations in 40 C.F.R. part 265 subpart W and with the standard that hazardous waste must be removed from drip pads every 90 days, but otherwise could comply with the standards specific to VSQGs.

If a generator operating a drip pad generates, in a month, an amount of hazardous waste that falls within the VSQG limits, that generator should be allowed to take advantage of the less stringent VSQG standards; it should not matter that the generator accumulated hazardous waste on a drip pad. As explained in Comment A, above, the provision requiring hazardous waste to be removed from drip pads every 90 days is separate from the 90-day accumulation limit for LQGs and the 180-day accumulation limit for SQGs. VSQGs accumulating hazardous waste on drip pads should be held to the same 90-day drip pad hazardous waste removal standard currently applied to LQGs and SQGs operating drip pads. [Footnote 15: If EPA were to adopt this proposal, VSQGs operating drip pads would also be required to comply with the drip pad-specific regulations contained in 40 C.F.R. part 265 subpart W.] Then, after performing the required cleaning at least every 90 days, the VSQG drip pad operator should be allowed to handle the hazardous waste according to the less stringent VSQG standards. Once hazardous waste is removed from the drip pad at least every 90 days, the hazardous waste that was accumulated on a drip pad should be regulated no differently than waste accumulated on other units because it does not pose increased or different risks.

Permitting drip-pad operators who qualify to manage hazardous waste under VSQG standards would allow efficient and safe handling of hazardous waste and should be explicitly included in the final rule. Again, the use of a drip pad as a hazardous waste accumulation unit is independent of generator status and should not impact whether a generator is classified as an LQG, SQG, or VSQG. TWC urges EPA to adopt the language proposed above. (0164)

Response: Upon reexamination of the proposed requirements compared with existing requirements for drip pad owner/operators who are generators, EPA agrees with the commenter. In the final rule, the Agency is not making these proposed changes, and is maintaining the existing regulations.  In fact, EPA has previously acknowledged that such a situation may occur where generators accumulating hazardous waste on drip pads are allowed to take advantage of the very small quantity generator (VSQG) standards if their hazardous waste generation falls within VSQG limits. Such an example would be, for example, wood treatment facilities that recycle their wood preserving wastewaters and spent wood preserving solutions under a particular solid waste exclusion (40 CFR 261.4 (a)(9)(iii)). However, allowing hazardous wastes to fall onto the ground is viewed as illegal disposal, and may result in enforcement action if inspectors determine that such disposal threatens human health or the environment. As such, it is prudent for all wood preserving facilities, even if conditionally exempt, to ensure that they are operating their drip pads in an environmentally safe and responsible manner. Therefore, VSQGs, accumulating hazardous wastes on drip pads must comply with 40 CFR subpart W requirements, except 40 CFR 265.445 (c).
Section 4.10 - Deletion of Performance Track Regulations

Comment: Commenters agreed with EPA's proposal to delete the regulations for the obsolete Performance Track regulations from the CFR. (0085, 0178, 0232)
EPA Response: EPA agrees with the commenters and is finalizing the deletions of these regulations in the final rule.

Section 4.11 - Biennial Reporting

Clarification of Biennial Reporting Requirements (40 CFR 262.41, 264.75 and 265.75)
The Agency proposed the following revisions to 40 CFR 262.41, 264.75 and 265.75: (1) only LQGs need to submit biennial reports; (2) LQGs must report all of the hazardous waste they generate for the entire reporting year, not just the month(s) the generator was an LQG; (3) LQGs completing a biennial report must report all hazardous wastes they generated in the reporting year, regardless of whether they transferred the waste off site during the reporting year; and (4) a reference to the biennial report form (EPA Form 8700 - 13) at § 262.41 rather than the list of specific data elements in currently at that citation.

Additionally, EPA proposed to modify the title of part 262 subpart D from ``Recordkeeping and Reporting'' to ``Recordkeeping and Reporting Applicable to Small and Large Quantity Generators'' in order to highlight which entities need to comply with this subpart.
With respect to permitted and interim status TSDFs at § 264.75 and § 265.75, EPA proposed to modify the regulations at §§ 264.75 and 265.75 to eliminate the list of specific data elements and to require the completion and submission of all data elements in the biennial report form (EPA Form 8700 - 13).

Comments
Most commenters supported EPA's proposed changes to the Biennial Reporting requirements, either in total or in part (0082, 0085, 0116, 0125, 0159, 0174, 0178, 0182, 0185, 0217, 0232, 0248). However, there were two components of the proposed rule where several commenters either opposed the changes, or had concerns. More specifically, several commenters either opposed (0134, 0152, 0187, 0213, 0224, 0216, 0262), or expressed concerns (0178, 0217, 0214, 0082) about requiring LQGs to complete the biennial report for all hazardous wastes they generate in the reporting year, regardless of whether they transferred the waste off site during the reporting year.

For example, one commenter (0134) stated changing, ",.....the reporting calendar year will become an administrative nightmare, especially in states that have annual requirements. Many generators obtain shipping data from TSDFs to provide the reports. To try and get a handle on the shipped amounts and the amounts in accumulation areas at the end of the year and then back out the amounts for the following year is an administrative burden without any added protection to human, health and the environment."

Another commenter (0213) stated, "For many generators, it would be impractical to report the amount of waste as it was being generated. In some situations, it is not immediately known that hazardous waste has been generated and must be confirmed through off-site testing. For other generators, their process for tracking hazardous waste for biennial reporting requirements is based on EPA's current regulations that track the shipping, treating, storing and disposing of hazardous waste  -  not the generation. EPA has not adequately evaluated the relative costs and benefits of this proposed change. If EPA is interested in dramatically shifting the way in which LQGs track and report hazardous waste, EPA must evaluate and address the potential impacts in a subsequent rulemaking addressing this issue."

One state commenter (0178) also stated that while they agree "that this would result in a fuller and more accurate accounting of the waste generated by LQGs in Connecticut and nationally. However, CT DEEP has one serious concern about the practicality of this proposal. In particular, it may be difficult for generators to determine in a precise way the amounts of waste that were generated at the beginning and end of each reporting year, particularly for wastes that are generated in small amounts at a time, or that are initially stored in satellite accumulation areas, since they typically do not keep the records necessary to produce this information  -  especially by the time that the reports are due, which could be a year or more after the fact."

Response: EPA is not finalizing the proposed change at § 262.41(a) requiring LQGs to complete the biennial report for all hazardous wastes they generate in the reporting year, regardless of whether they transferred the waste off site during the reporting year, and will instead revert back to the current language found in § 262.41(a).
In reviewing comments, as well as reviewing existing biennial reporting instructions, the Agency realized that it and the states were already obtaining a reliable estimate of hazardous wastes generated by LQGs, although not necessarily in a clear cut, January to December manner. For example, a closer examination of existing biennial reporting instructions revealed that the amount reported included: (1) hazardous waste generated and accumulated on site and subsequently managed on site or shipped off site in the reporting year; or (2) hazardous waste generated and accumulated on site in the reporting year but not managed on site or shipped off site until the following year; or (3) hazardous waste generated and accumulated on site prior to the reporting year but either managed on site or shipped off site in the reporting year. In other words, an estimate of hazardous waste generated by LQGs is already being captured and reported for a 12 month period, but not necessarily only in the reporting year.
Most importantly, the Agency has concluded that the costs of making the proposed revision would outweigh the benefits, particularly when there would be no noticeable difference in the amount of hazardous waste generated annually.

The second major concern expressed by commenters (0093, 0134, 0137, 0255, 0263) had to do with referencing the biennial report form (EPA Form 8700 - 13) at § 262.41 rather than listing the specific data elements currently at that citation, and the process involved in making any changes.
As one commenter (0134) stated, "We also must object to modification (4) which would replace the data elements established by rulemaking with a reference to the biennial report form that EPA can change at the last minute without any procedural protections. We have had experience with EPA changing reporting requirements literally at the last minute, and also requiring much more information than expected, creating unfair burdens and costs. What is to prevent EPA from changing the data elements by modifying Form 8700-13 without allowing adequate time for companies to respond, and without a rulemaking process that allows an opportunity for comment and persuasion? The ETC must strongly object to this aspect of the proposal and urge EPA not to override the fairness and procedural protections afforded by rulemaking."
Similarly, another commenter (0255) stated, "EPA's stated reason for making this change is that the biennial report forms have evolved over time and that the requirements in 262.41 no longer reflect the current reporting requirements. In theory, CRWI does not oppose the idea of changing the requirements in the current version of 262.41 from a list to the requirements in EPA form 8700-13. We understand that requirements change over time but would be concerned if future changes to form 8700-13 were made without soliciting public input on those changes. As long as the Agency provides opportunities for public participation to any future changes to form 8700-13 (or for that matter, any other EPA form), we support the proposed change to 262.41. However, if the Agency does not intend to provide public input to any future changes to this form, we oppose this proposed rule change."

Response: EPA understands commenter concerns regarding the Agency's process of involving the public in making changes to the Biennial Report forms since the regulatory language will cite to the form and no longer specify the required data to be submitted. However, EPA will provide opportunity for public comment for any changes to the regulations and to the forms. Specifically, the Agency will continue to follow the Administrative Procedures Act (APA) and provide notice and solicit comment in making any changes to the regulations. Moreover, as stated in preamble, commenters may not be aware that any changes to EPA Form 8700-13A/B are subject to the Paperwork Reduction Act (PRA), which requires an amendment to the Information Collection Request (ICR) and approval by the Office of Management and Budget (OMB). Before amending the ICR, EPA publishes a notice in the Federal Register informing the public that the ICR is to be amended, and takes comment on the draft form, which is available in the docket. Moreover, there is a follow-up notice in the Federal Register informing the public when the ICR amendment has been submitted to OMB for approval. In the future, in order to ensure more transparency, the Agency also will post a copy of the draft form along with a discussion of any proposed changes, including the need for such changes, as part of the Federal Register notice. As part of this process, the Agency also will inform stakeholders of this Federal Register notice on the RCRAInfo web page at https://rcrainfo.epa.gov/rcrainfoweb/.
Other Comments
Comment
The proposed Hazardous Waste Generator Improvement rule is changing the language in Section 262.41 for biennial reporting. The proposed change specifies that only Large Quantity Generators (LQGs) must file a BR. This language is misleading and implies that the rule does not ever apply to CESQGs and SQGs. The rule language needs to be made clear and specify that if a CESQG or SQG meets the definition of a RCRA LQG for at least one month of the reporting year, then they must file a BR and include all the waste that was generated during that reporting year. Suggested language change for clarification is: A generator who operates as a large quantity generator (generating more than 1000 kilograms of hazardous waste) for at least one month of the reporting year must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of each even numbered year for all hazardous wastes generated during the previous calendar year. (Commenter 0125)

Response: The Agency believes the final regulatory language will be sufficient to address this commenter's concerns. More specifically, the final regulatory text states, "A generator who is a large quantity generator for at least one month of an odd-numbered year (reporting year)...." will account for those situations where either a CESQG or SQG must complete a biennial report unless other components of the hazardous waste generator regulatory program exempt such reporting, such as when they are episodic generators.

Comment:
Biennial Reports - SQGs that are episodic LQGs in one month must currently submit biennial reports. This language is maintained in 40 CFR 262.41, but is not referenced in the new 262 Subpart L for episodic generators. (Commenter - 0214)
Response: SQGs that are episodic generators will not be required to complete a biennial report. We discuss this issue more appropriately under subpart L  -  Alternative Standards for Episodic Generation of the preamble to the final rule since the scope of biennial reporting is applicable to LQGs only.

Comment
Section VIII.L (Page 57969): One State commented that guidance should be consistent with the regulations, not the other way around. Changing the rule to state that only LQGs are required to submit a Biennial Report (BR) would make the rule less stringent in several States. Several States already require LQGs to report all the waste generated, regardless of when it was shipped. The State also commented they do not require one-time generators (short time generators) that generate LQG quantities of waste to submit a BR. It is difficult to determine if they were really LQG's because they often notified as such, to find out they were not. (Commenter - 0217)
Response: States may always be more stringent than federal program requirements, or equally stringent but in a different manner if authorized to do so. Regarding the comment on short-term generators, the Agency has struggled in the past with being able to differentiate short-term generators from episodic generators since the examples we have seen for short-term generators are very similar to those of episodic generators. VSQGs and SQGs that generate quantities of hazardous wastes that result in a higher generator category for a calendar month may have the opportunity to take advantage of the new Subpart L episodic generator regulations. Therefore, such generators have the responsibility to determine what regulatory requirements they must comply with.

Comment
Idaho DEQ agrees that any generator, including a temporary or episodic LQG, that exceeds the 2,200 lb. threshold of generated HW or 2.2 lb. threshold of generated acute HW during any part of an odd-numbered calendar year should be required to file and submit a federal hazardous waste biennial report using EPA form 8700-13. However, Idaho DEQ does not agree that sites should have to report waste generated during a reporting year for the months they are CESQG or SQG. (Commenter - 0189)
Response: The Agency disagrees. Generators who are VSQGs or SQGs for part of the year are also nevertheless LQGs for the other parts of the year, and thus it is important that they submit the biennial report to cover the entire year. These types of generators should not find it difficult to submit this information because they will have maintained hazardous waste manifest records which identify the quantity of hazardous waste generated over a particular time period. Generators also must keep track of how much hazardous waste they generate monthly in order to determine their generator category. If the generator is an SQG or VSQG for eleven months of the year they may be able to take advantage of the new episodic event regulations being finalized at § 262.230. Similarly, almost all states already require this information as part of their biennial reporting requirements, and it has long been included in the BR instructions.

Comment
Under the current regulations, the biennial reporting obligations apply to (1) large quantity generators that ship hazardous waste offsite to a treatment storage or disposal facility, 40 C.F.R. § 262.41 (a), and (2) generators that treat, store, or dispose of hazardous waste onsite, id. at § 262.41(b). The proposed regulations would impose the biennial reporting obligations on generators that are LQGs for at least one month of the reporting year. Because the current regulations do not address the generation of the waste, but the proposed regulations do, the proposed regulations would expand the biennial reporting requirement to LQGs that have generated waste, but not yet shipped, treated, stored, disposed of, or transferred the hazardous waste. This is a dramatic shift in the way that generators base the requirement to submit a biennial report that is not recognized by EPA's discussion in the Federal Register.
For many generators, it would be impractical to report the amount of waste as it was being generated. In some situations, it is not immediately known that hazardous waste has been generated and must be confirmed through off-site testing. For other generators, their process for tracking hazardous waste for biennial reporting requirements is based on EPA's current regulations that track the shipping, treating, storing and disposing of hazardous waste  -  not the generation. EPA has not adequately evaluated the relative costs and benefits of this proposed change. If EPA is interested in dramatically shifting the way in which LQGs track and report hazardous waste, EPA must evaluate and address the potential impacts in a subsequent rulemaking addressing this issue. (Commenter - 0213)
Response: EPA is not proceeding with the proposed regulations, and will maintain the current regulations. By maintaining the status quo for what hazardous waste must be reported in the BR, this comment is moot.

Comment
If generators report the waste generated but not shipped during the calendar year, are they NOT required to report waste generated in the previous calendar year if it was shipped during a reporting year? (Commenter - 0214)
Response: Under the final rule, there is no change in what generators must do in completing a biennial report; i.e., generators will continue to report the hazardous waste they generate and ship of-site to a RCRA permitted TSDF. Therefore, generators will continue to report in the biennial report hazardous waste they generated in a non-reporting year that they shipped off-site in a reporting year. This will counter-balance LQGs that don't have to report hazardous waste they generated in a reporting year but shipped off-site in a non-reporting year.

Comment
ACA cautions EPA that having to account for waste that is generated during the final month of the year has the potential to be an issue for any facility. For example, if a waste stream was generated on December 15th, the material would not legally have to be shipped from the LQG until March 14th of the following year. The return manifest would not legally have to be received back to the facility for an additional 35 days which could potentially place the manifest with all applicable information back in the generators hands by April 18th. The deadline to submit the facilities Biennial report is March 1st. This requirement has the potential for the facility to not have all of the legally required information for the previous year's waste by the time the report is due. (Commenter - 0262)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo in terms of what hazardous wastes must be reported, this issue is moot.

Comment
We support the removal of the list of data elements from section 262.41 and replacing this list with a reference to the reporting form. However, it is important that the regulations not conflict with the guidance contained in the form. There are some remaining conflicts and ambiguities, and changes made from existing regulatory text that may not have been fully intentional. In the proposed text, generators report on wastes generated during the reporting year. Current regulatory text requires that the report cover "generator activities" during the reporting year. In the 2015 version of EPA Form 8700-13A/B, pages 6 and 35, the guidance spells out that these generator activities include management and shipping -- that waste generated and accumulated in 2014 but managed on-site or shipped off-site in 2015 should be included in the 2015 biennial report. The proposed text is not consistent with this requirement. (Commenter - 0082).
Response: There are two components to this comment. The Agency agrees that guidance implementing the Biennial Report regulations should be consistent and will institute procedures to ensure that occurs. Regarding the second statement, the issue is moot since we are not finalizing what we proposed in terms of what has to be reported.

Comment
We agree with using a reference to the BR forms (EPA form 8700 - 13) at § 262.41 rather than the list of specific data elements currently at that citation. However, it should be noted that authorized states can substitute their own form number(s) for the federal form. Additionally, there should be a reference to the BR Forms and Instructions for which data elements are required or conditionally exempt. For example, the OI form is conditionally required depending on the state. The rule should specify that the report information should be supplied according to the EPA or State instructions. If each data element for BR reporting is not listed in the rule, will US EPA or the states be able to cite violations for information that was not reported but cannot be left blank according to the state or federal data requirements? (Commenter - 0125)
Response: The Agency agrees that authorized states can substitute their own form number(s) for the federal form so long as the required data elements are collected. The Agency also agrees that there should be a reference to the BR Forms and Instructions for which data elements are required or conditionally exempt. The Agency already does that in its biennial report instructions. However, the Agency does not intend to specify in the regulations that report information should be supplied according to the EPA or State instructions. The Agency believes referencing the specific forms in the regulation, and providing instructions on the actual forms as to what is required should be sufficient. Regarding the question, "If each data element for BR reporting is not listed in the rule, will US EPA or the states be able to cite violations for information that was not reported but cannot be left blank according to the state or federal data requirements?" generators will be held responsible, and potentially in violation of the regulation if they fail to provide all of the applicable information identified on each form even if it is not specifically identified in the regulation.

Comment
In concept, Idaho DEQ would like to agree with the proposal to change the regulatory language for the BR citations from listing specific data elements to instead referring to the BR form and instructions. While Idaho DEQ understands and agrees this type of referencing is easier for EPA and subjects them to potentially less rulemaking in the future to accommodate BR changes, the fact that EPA wants to require temporary or episodic LQGs during an odd-numbered reporting year to report all other waste generated during the year (regardless of the level or amount generated) is problematic for Idaho DEQ. (Commenter - 0189)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo as to what hazardous wastes has to be reported in the biennial report, this issue is moot.

Comment
One State commented, in the BR instructions, EPA states that the OI (transporter information) is optional, which currently is not in compliance with §262.41(a).4. Referring to the form by number and not specifying data elements means transporters are no longer reported. Several States use the transporter information for targeting inspections and outreach. (Commenter - 0217)
Response: States can always be more stringent than the federal program and require what is considered optional information by the EPA.

Comment
In the proposed text of 262.41(a), the first mention of "reporting year" occurs before it is defined as the calendar year previous to the even numbered year when the report is due. This could be written more clearly for someone new to the regulations. Suggestion is: replace "A generator who is a large quantity generator for at least one month of the reporting year must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of each even numbered year for all hazardous wastes generated during the previous calendar year." with "A generator who is a large quantity generator for at least one month of an odd numbered year (reporting year) must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of the following even numbered year for all hazardous wastes generated during the reporting year." This also lines up with the implication that applicability of the requirement to submit a biennial report should be re-determined for every generator (based on monthly generator status) at the end of every odd numbered year by changing "each even numbered year" to "the following even numbered year". (Commenter - 0082)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo as to what hazardous wastes has to be reported in the biennial report, this comment is moot.

Comment
Both current and proposed text state that "generators who treat, store, or dispose of hazardous waste on site in accordance with the provisions of 40 CFR parts 264, 265, 266, 267, and 270" must also submit a report. Which generators this refers to is potentially confusing, as most generators store and some may treat in compliance with portions of part 265 referenced in section 262.34. The 2015 version of EPA Form 8700-13A/B clarifies at the top of page 4 that this clause intends to cover generators who "treat, store, or dispose of RCRA hazardous waste on-site in waste management units subject to a RCRA operating permit." Can the regulatory text be changed to this clearer language, or is this guidance missing some other generator population intended to be included? (Commenter - 0082)
Response: The Agency believes the regulatory text being finalized today is clear as to what facilities or generators this provision is applicable to. There is no generator population intended to be included. However, TSDFs that generate hazardous waste in the process of treating or disposing of hazardous wastes it has received become generators and also are subject to the provisions of 40 CFR 262.4.

Comment
USWAG strongly encourages EPA to clarify that a waste generated at the end of a reporting year, but which is not determined to be hazardous until the beginning of the next year, be reported in the year that it was generated, despite not being determined to be hazardous or being sent to a TSD facility in that year. (Commenter - 0093)
Response: EPA is not proceeding with the proposed regulation and will maintain the current regulation. By maintaining the status quo as to what hazardous wastes has to be reported in the biennial report, this comment is moot.

Comment
We agree that the BR provisions in parts 264 and 265 should be modified to specifically include facilities receiving HW without a permit such as reclaimers that do not store and those operating under a variance. This would give us a better picture of hazardous waste management since these facilities have been exempt from reporting. BR filers list them as receivers on GM Forms but that gives an incomplete picture of what is occurring at the receiving end. Authorized States would be required to modify their programs when EPA promulgates this more stringent provision of the rule. (Commenter - 0125)
Response: The Agency agrees with this comment that authorized states must modify their programs when EPA promulgates this more stringent provision of the rule.

Comment
Currently, under 262.41(b) exports of hazardous waste to foreign countries are not required to be reported on the Biennial Report form. This is mentioned in the proposed rule. A separate Annual Report is required for hazardous waste exporters and is sent to OECA. However, state requirements may be more stringent and the reporting of exports on the BR should still be allowed. As outlined in the BR Forms and Instructions, states may impose reporting requirements above and beyond the federal requirements. This information is critical to state programs and unless this information is captured through BR, the states without manifest tracking have no way of obtaining this information. State-level generation and shipment data would be incomplete. (Commenter - 0125)
Response: EPA does not disagree with this comment. States may be more stringent than the federal RCRA program. EPA agrees that a state regulation can be more stringent, or broader in scope, than a federal regulation. In this case, a state regulation that would require a hazardous waste exporter to submit a biennial report to the state would be an example of a broader in scope, rather than a more stringent regulation. Thus, a state may require a biennial report to the state in addition to the annual report required to EPA under the federal regulations. However, the state cannot substitute the biennial report for the annual report since a state cannot conflict with, or administer, federal regulations regarding hazardous waste exports that EPA promulgates and administers as a result of the federal government's special role in matters of foreign policy.

Comment
Even if the state has access to manifest data, the manifest doesn't collect the same set of data elements as the BR. Collecting the data on BR forms is preferable because all the information is stored in the same database with the same data elements. The manifest doesn't provide several items required on the BR such as Source Code, Form Code, and waste density if volumetric. Also, the OECD handling method codes that will be tracked in OECA's WIETS database are not the same as the BR codes. These items are important to data analysis and program planning efforts on hazardous waste generation and management at the state level. The states are not allowed access to the foreign shipment data tracked by OECA.

An example of why this information is critical to collect and report as part of BR is that a LQG may ship all its HW to Canada and none in the US. If this was not reportable on the BR then this facility would not be on the inspection baseline and the data would not be available to compare them with other generators. US EPA bases state inspection commitments on the list of BR LQGs. (Commenter - 0125)
Response: The Agency is not able to assist states in addressing this issue without promulgating a new rule.

Comment
We would like to have language added to the rule stating that if a LQG downgrades its generator status and doesn't need to file a BR as they did in the previous cycle, then they should complete and submit a RCRA Subtitle C Site Identification Form to notify of the change in their current regulated waste activities (0125)
Response: The Agency is not able to assist states in addressing this issue without promulgating a new rule.
Comment
Idaho DEQ agrees with the proposal that if an LQG receives off-site waste from a CESQG under the same ownership, that waste should be reported by the LQG on their biennial report. However, the waste should be identified separately from the LQG's own generated HW as same-ownership waste in some way. Perhaps a new source code can be created allowing the LQG to report the generated amount on the GM as 0 (since they did not actually generate it). They would have to include the shipped amount since this should equal the amount received from the CESQG and would identify how much the CESQG generated. (Commenter - 0189)
Response: The commenter raises a good point that will be addressed when EPA implements the rule and issues new BR instructions.

Section 4.11.1 - Biennial reporting is just for LQGs

All comments organized to this section of the comment outline are responded to under section 4.11.

Section 4.11.2 - Reporting all hazardous waste for the year (not just LQG months)
All comments organized to this section of the comment outline are responded to under section 4.11.
Section 4.11.3 - Reporting all hazardous waste generated (not just shipped off site)
 All comments organized to this section of the comment outline are responded to under section 4.11.

Section 4.11.4 - Revise regulations to refer to BR instructions
All comments organized to this section of the comment outline are responded to under section 4.11.

Section 4.11.5 - Other
All comments organized to this section of the comment outline are responded to under section 4.11.

Section 4.12 - Prohibition against landfilling liquids

General Support
Comment: EPA heard from 9 commenters that generally support the addition of language at 40 CFR 262.14 and 262.35 that re-iterates the provision that prohibits the disposal liquids in landfills (Commenter Nos. 85, 174, 178, 185, 206, 214, 232, 248, and 253).
Response: EPA thanks the commenters for their support. EPA believes that the liquids restrictions are necessary because the disposal of liquids into landfills can be a significant source of leachate generation. By restricting the introduction of liquids into landfills, the leachate generation potential of landfills would be minimized and reduce the risk of liner failure and subsequent contamination of the ground water. EPA believes it is important to emphasize that the responsibility for preventing the introduction of liquids in landfills resides not only with municipal and hazardous waste haulers and landfill operators, but also with hazardous waste generators. By reiterating this prohibition directly in the generator regulations, more generators will become aware of their responsibility to ensure that their liquids hazardous waste is either not disposed in landfills or properly treated prior to disposal in a landfill. Furthermore, EPA hopes that this provision will encourage better communication between generators, waste haulers, and TSDFs to ensure the liquids hazardous waste is properly disposed.

General Concerns
Comment: EPA received 6 comment that expressed general concern and questioned whether reiterating this provision in 262.14 and 262.35 is needed (Commenter Nos. 77, 93, 134, 168, 189, and 214). Some commenters felt that this provision was already stated in the regulations at 40 CFR 264/264 and that disposal facilities, rather than the generator, are in the best position to ensure that liquids are not disposed of in landfills. There is concern that this provision will do nothing to actually ensure that liquids are not disposed of in landfills and may deter a generator from shipping their waste to a TSDF.
Response: EPA understands why commenters question the necessity of this provision since it already stated elsewhere in the regulations and this provision does not change any requirements that the generator must comply with. However, EPA believes it is important to emphasize that the responsibility for complying with this provision resides not only with municipal and hazardous waste haulers and landfill operators, but also with hazardous waste generators. Some undesirable situations have occurred because generators were not aware of this provisions simply due to the fact that this provisions was not found in the generator regulations. By including this prohibition in the generator regulations, EPA believes that generators will be more aware of the liquids in landfill prohibition and EPA believes that this provision will help facilitate better communication between generators, waste haulers, and TSDFs. This provision will help ensure compliant disposal of liquid hazardous waste in landfills. Furthermore, considering that there are no new or changing requirements, there should be no additional burdens on generators regarding their shipments of liquid hazardous waste.

Comment: Five commenters have expressed concern that current practices between generators and TSDFs would be altered and restrictive, making generators more reluctant to ship their liquid hazardous waste to a landfill (Commenter Nos. 77, 93, 134, 159, and 214). Some generators setup agreements with a TSDF such that all of their liquid waste is stabilized by the disposal facility. There are also current practices established by the generator and TSDF that remove any free liquid that is produced during transportation. With this provision, some generators believe that they now are required to stabilize all their liquid waste prior to shipment and ensure that no free liquids develop during the hauling process or during the placement of the waste in the landfill. These commenters state that generators have no control of the waste after it leaves their facility and, in order for generators to comply, they must put their employees at risk, during transportation and disposal of the waste, to ensure that no free liquids seep into hazardous waste during transport.
Response: It is not EPA's intent to alter or restrict current practices employed by generators and TSDFs.
EPA simply wanted to make generators more aware of this prohibition. Because the statutory prohibition was codified in the TSDF regulations and not in the generator regulations, some generators may have been unaware of the prohibition against the disposal of liquids in landfills. Current practices that were used prior to this rule continue to be applicable after this rule is finalized, as long as hazardous waste liquids are not disposed of in landfills. The generator may treat their liquid waste themselves or the generator may set up an agreement such that a TSDF treats the liquid waste prior to disposal in a landfill. There may be many different variations of these agreements between generators and TSDFs but, if the liquid waste is properly treated before disposal in a landfill, then the previously established agreements would not need to be altered.

Comment: EPA heard from three commenters suggesting that it would be helpful to clarify in this provision that the sorbents used to eliminate free liquids must be non-biodegradable if the generator is disposing their stabilized waste in a landfill (Commenter Nos. 159, 214, and 217). If it is EPA's intent to get generators be more aware of the prohibition of liquids in landfills then generators should also be aware of regulations on how to comply with the prohibition, such as the requirements stated in 264.314 and 265.314.
Response: EPA agreed with the commenters' suggestion and, in the final rule, the Agency added references to § 264.314 and § 265.314 in the SQG and LQG regulation (§ 262.35). Liquid hazardous waste from an LQG or SQG that is disposed in a hazardous waste landfill must meet the additional requirements in § 264.314 and § 265.314, notably the requirement that the sorbents be nonbiodegradable. In instances where biodegradable sorbents are used, such as prior to incineration or energy recovery, then SQGs and LQGs must ensure that these wastes are not disposed in a hazardous waste landfill.
VSQGs are not required to follow the additional criteria in § 264.314 and § 265.314 if they are disposing their waste in a MSWLF, but they must still ensure that their waste contains no free liquids prior to disposal in any landfill.

Comment: Four commenters stated that the proposed language, "whether or not sorbents have been added," may cause confusion and recommended that this language be clarified or revised (Commenter Nos. 159, 168, 214, and 268). It is suggested that this language could be interpreted such that stabilized free liquids (i.e. use of sorbents) are prohibited from disposal in a landfill. EPA stated in the proposal that this prohibition of liquids in landfills is a reiteration of current requirements but, with the above interpretation of the proposed language, some generators may view this is a new requirement.

Response: EPA disagrees with the commenter's suggestion to revise the proposed regulatory language for generators. The proposed regulatory language prohibiting liquids in landfills is appropriate because the language was adopted directly from the statute and the same language is found in other parts of the regulations which applies to generators. It would be confusing to have slightly varying versions of this prohibition for each generator category and TSDFs.
EPA would like to clarify that the language "whether or not sorbents have been added," does not restrict the use of sorbents as treatment prior to disposing in a landfill. All generators, regardless of their hazardous waste generation category, may continue to operate as they have before this rule as long as their liquid hazardous waste is disposed of properly. If sorbents have been used but free liquids are still present, then the waste is prohibited from disposal in all landfills. However, if there are no free liquids as defined in § 260.10 after the use of sorbents, then the waste may be disposed in the correct corresponding landfill.

Section 4.13 - CESQG regulations-general

Comment: The introductory paragraph of 262.14(a) is confusing; it should be re-written to be similar to 262.16 and 262.17. The other requirements listed in 262.14 are conditions of exemption. The bottom line is: the re-organization would bring a much higher degree of clarity for VSQGs if VSQG requirements were organized the same way as SQG and LQG requirements. (Commenter 0082)
EPA Response: We agree with the commenter and to improve clarity we have re-worded the introductory paragraph in 262.14(a) to be more similar to those in 262.16 and 262.17.
Comment: TDEC also recommends that EPA consider establishing an accumulation time limit that it determines reasonable for CESQGs in addition to the current weight limit. TDEC's DSWM repeatedly observes CESQGs with such low generation rates that it would be decades before they approach the 1,000 kilogram limit currently established. Passage of such a long amount of time and subsequent changes in on-site conditions could potentially lead to the mismanagement of hazardous waste accumulated at CESQGs. Establishing an accumulation time limit would also be beneficial to the regulated community, reducing the risk for potential non-compliance (Commenter 0116).
EPA Response: EPA did not propose or take comment on creating an accumulation time limit for VSQGs. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment: MDU agrees with USWAG that CESQGs should be allowed to treat hazardous wastes on sites in the same manner as authorized for small quantity generators (SQGs) and LQGs. MDU has a knowledgeable environmental staff that directs company personnel on how to properly manage waste when encountered during operation and maintenance. In addition, MDU periodically hires consultants to assist with hazardous and solid waste determinations, management, and disposal (Commenter 0149).

EPA Response: A VSQG is allowed to treat its hazardous waste on-site provided that the VSQG is one of the types of facilities identified in 262.14(a)(5)(i)-(viii). The justification for allowing SQGs and LQGs to treat hazardous waste in accumulation tanks and containers without a permit is provided in the preamble to the March 24, 1986 Federal Register (51 FR 10168). It explains that treatment is allowed because SQGs and LQGs are subject to the same technical standards as TSDFs for tanks and containers. This is not the case for VSQGs who are not subject to any of the technical standards for TSDFs for tanks and containers.
Comment:
No Additional Expansion to CESQGs/VSQGs

Walmart does not support expanding any of the specific requirements to CESQGs/VSQGs, wherever noted by the agency in the preamble as requesting comments (Commenter 0233).
EPA Response: The Agency has not expanded the requirements for VSQGs at this time.

Comment: In summary, I urge USEPA to keep the RCRA generator regulations unchanged except for correction of specific typographical errors, omissions, inconsistencies, obsolete references, or redundancies; to retain a less burdensome form of the new episodic generation regulations for CESQGs and SQGs; to retain the specific exclusion of CESQGs from RCRA Part B permitting; and to retain the now-explicit allowance for CESQGs to convey hazardous waste to a sister facility that is an LQG (Commenter 0263).
EPA Response: The Agency appreciates the comment; however, in response to other comments in support of various amendments, we have made additional changes beyond just those identified by this commenter.

Comment:
D. EPA must promulgate minimum requirements necessary to ensure all CESQG hazardous waste is safely managed "cradle to grave."

Even if the unlawfulness of the CESQG exemptions could be overlooked, EPA must at least promulgate conditions necessary to ensure CESQG hazardous wastes are managed in a manner that is fully protective of human health and the environment when they are transferred to, treated, stored, or disposed of at a non-hazardous waste site. Without additional conditions, EPA simply cannot assure that CESQGs are not evading mandatory requirements for SQGs and LQGs (Commenter 0264).
EPA Response: EPA did not propose or take comment on creating additional conditions for VSQGs. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment: There is simply no excuse for not requiring all CESQGs to obtain an EPA ID number, and to notify and keep records of their hazardous waste activities (including waste determinations). These are minimum requirements that are essential for making progress in addressing the major gaps and lack of compliance in the existing CESQG program, and correcting the disturbing problem that "there are many more" than the estimated hundreds of thousands of CESQGs facilities nationwide that are "unaware of their obligations under the RCRA hazardous waste regulations and the need to conduct correct hazardous waste determinations (Commenter 0264).
EPA Response EPA did not propose or take comment on requiring VSQGs to obtain an EPA ID number or keep records of their hazardous waste activities. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment: Given the complete lack of information about active CESQGs, EPA must also work with the states to ensure that all potential generators of hazardous wastes are identified and aware of the generator regulations and the attendant obligations (Commenter 0264).
EPA Response: Some states already regulate VSQGs beyond the federal program. So although EPA's information about active VSQGs is limited, it has been supplemented by the states that regulate them. Further, our observation has been that the states that regulate VSQGs tend to have strong outreach programs to ensure compliance.
Comment: Consistent with the discussion above, transfers of CESQG wastes to other sites should also be subject to full Subtitle C hazardous waste transportation requirements, including use of the Uniform Hazardous Waste Manifest tracking system. As EPA knows, the manifest requirement is critical for ensuring cradle to grave regulation, accountability, and safe delivery of the hazardous wastes to the recipient. Again, EPA does not explain the basis of its authority to exempt the transportation of CESQG hazardous wastes, or even how its provisions allowing CESQG wastes to be sent to non-hazardous waste sites adequately protect transporters and emergency responders against harm that may occur in an accident (e.g., fire, explosion, or spill). For the proposed allowance to send CESQG waste to an LQG under the control of the same person, EPA seeks to exempt CESQGs from compliance with requirements to ship using a hazardous waste manifest, stating that "DOT shipping requirements do still apply." However, EPA fails to explain how those DOT shipping requirements would provide information and allow for oversight in a manner that comparable to the manifest requirement (Commenter 0264).
EPA Response: EPA finds that Earthjustice's argument has no merit. EPA is not reopening the CESQG exemption (now called the VSQG exemption) itself. Their argument that the CESQG exemption is unlawful is moot since the CESQG exemption has existed for decades, going back to 1980, and was essentially recognized and accepted by Congress when they included a SQG provision in the Hazardous and Solid Waste Amendments of 1984.
EPA did not propose or take comment on requiring VSQGs to manifest their hazardous waste. As a result, this comment is out of scope and we are unable to finalize such a provision.
Comment:
COMMENT 'F' (related to buildings on a university campus each potentially being a CESQG):
P 57930 (3rd col) suggests it is permissible for a university's engineering, medical, and science laboratory buildings to each be a separate site even when located on one campus. ("...with each laboratory building possibly qualifying as a CESQG." [emphasis added]) Unless those buildings are separated by public rights-of-way such as city streets they could only be considered as a single 260.10-defined "Individual Generation Site" and thus hazardous wastes from all those buildings, collectively, would be counted to establish whether the site is a CESQG. (All other hazardous wastes generated on that site must also be counted.) (Commenter 0270)
EPA Response: The Agency agrees with the commenter and only meant to say that, in some cases, different buildings on a single campus may be assigned separate ID numbers; hence the use of the word "possibly."

Section 4.14 - Extending labs accumulation time limit

Subpart K -Extending Time Limit for Accumulation Under Alternative Requirements for Laboratories Owned by Eligible Academic Facilities

General Support for Extending the Accumulation Time Limit Under Subpart K
Comment: EPA heard from 23 commenters that generally support extending the accumulation time limit from 6 months to 12 months for laboratories owned by eligible academic entities (Commenter Nos. 91, 99, 101, 110, 135, 136, 139, 154, 172, 182, 185, 206, 208, 212, 217, 221, 226, 230, 231, 248, 256, 258, and 282). Commenters stated that many colleges or universities have found that the 6 month accumulation time limit to be too expensive and burdensome because their laboratories produce only a small quantity of waste. As a result, many colleges and university have not opted into subpart K. These commenters felt that extending the time limit from 6 months to 12 months to remove unwanted chemicals from laboratories would not only reduce their burden but encourage more eligible academic entities to opt into subpart K.
Response: An eligible academic entity has no time limit for accumulation when operating under the SAA regulations. Therefore, for smaller eligible academic entities that do not accumulate 55 gallons in a laboratory, a six-month accumulation time limit can mean a shorter, more stringent, accumulation time than they have under the satellite accumulation area regulations. EPA agrees with the commenters that this shorter accumulation time is a disincentive for opting into the alternative standards in subpart K. The Agency, therefore, increased the accumulation time limit in an eligible academic entity's laboratory to 12 months.

General Concerns of Extending the Accumulation Time Limit Under Subpart K
Comment: EPA heard from 2 commenters that expressed concern that extending the accumulation time limit another 6 months would be an increased risk for the college or university (Commenter Nos. 82, and 217). During scheduled breaks there will be a reduction in the presence of staff in the labs and there may be unknown wastes left in laboratories at the end of a semester.
Response: EPA disagrees that there will be an increased risk because the volume limits are still in place, i.e., 55 gallons of unwanted material or 1 quart (liquid) or 1 kg (solid) of acutely hazardous unwanted material. Furthermore, if the laboratory waste is properly managed according to subpart K, such as proper container management, labeling, and training, then changes in the number of personnel should not significantly increase the risk over a 12 month accumulation period.

Section 5 - Marking and labeling throughout the proposed rule

Comment: The EPA is proposing enhanced labeling and/or marking on hazardous waste containers and tanks. I recommend that if a container is labeled to match DOT OR HAZCOM requirements, it is considered acceptable for the EPA's proposed enhanced labeling. (0089)
EPA Response: The Agency agrees with the above comment. A SQG or LQG may label its containers with the applicable hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic) to match DOT or HAZCOM requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding). This is one method. The Agency is also providing flexibility to generators in that they also may use a hazard statement or pictogram consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704).
Comment: Extra labeling on tanks, drip pads, and containers will also add a new burden to the generator of the waste. The cost of labeling media, printing supplies and software, and the new work process development, and labor time, to insure marking and labeling per these new requirements is an additional cost with little to no added value. (0131)

EPA Response: The Agency disagrees with the above comments.The final regulation requires SQGs and LQGs to mark or label containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but 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 1920.1200; or a chemical hazard label consistent with the NFPA code 704). The Agency does not believe this change will be a new burden since a generator already has to apply a label with the words "Hazardous Waste" and a DOT label identifying the hazards of the contents before sending its waste off-site. The only change the Agency is requiring is that the generator move the process up in identifying the hazards of the contents and place a DOT label or placard identifying the appropriate hazard while the hazardous waste is being accumulated on-site to inform workers, emergency responders, etc. of the container's hazards. The Agency believes this is a value added change that improves a generator's risk communication with minimal if any increase in cost.
Similarly, in response to comments, the Agency has simplified the proposed marking and labeling for containers by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. While the Agency is not finalizing the requirement that generators identify the contents of their containers, we not only encourage, but would expect, that generators would identify the contents of hazardous waste in their containers considering both the operational and potential downstream regulatory problems that would likely emerge if the contents were not identified.

Comment: If the EPA does decide that there is sufficient reason to burden the generators with new marking and labeling requirements Dow would like EPA to consider these items:

1) Rules should include an exemption for wastes generated in labs covered under the OSHA Lab Standard.

2) There should be clarification stating containers smaller than 0.1 m3 are exempt from these additional labeling requirements.

3) The marking and labeling requirement should take effect only when the waste is being transported out of the control of the generator. (0131)
EPA Response: In response to Question 1 above, SQGs and LQGs must mark or label its containers with the following: (1) the words "Hazardous Waste"; and (2) an indication of the hazards of the contents of the container including, but 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 1920.1200; or a chemical hazard label consistent with the NFPA code 704).
It is a misperception that the requirement for identifying the hazards of the contents is duplicative with OSHA requirements and/or DOT requirements. On the contrary, EPA notes that the marking and labeling of containers is not duplicative of other regulations: OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR 1900.1200(b)(6)(i)) and DOT requirements only apply during transportation. In fact, under the RCRA rules being finalized in this rulemaking, the Agency believes it is closing a loophole for hazard communication for hazardous wastes accumulated on site.
If a hazardous waste is in a container that already has the appropriate marking and labeling (e.g., the hazardous waste is an unused commercial chemical product that is in its original container with an intact label), the existing marking and labeling would be sufficient. The generator would not need to duplicate the marking and labeling, assuming the original label contains the information necessary to comply with the marking and labeling requirements.
Regarding Questions 2 and 3, there is no marking and labeling exemption for containers smaller than 0.1 m3 and generators must mark or label their containers with the appropriate hazard communication label or placard as soon as they have determined the waste is a hazardous waste and why it is a hazardous waste (i.e., identified the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic), not when the waste is being transported out of the control of the generator.
However, in keeping with existing EPA guidance, generators would be able to continue to mark outer/secondary containers, such as lab packs, color-coded bins, etc. with the words "Hazardous Waste" and the hazards of the hazardous waste instead of marking a small container (e.g., tubes, vials, etc.) that is placed inside the secondary container. (See Robert Springer, Director of Office of Solid Waste to RCRA Directors, Regions 1-10, Frequently Asked Questions About Satellite Accumulation Areas, March 17, 2004.) Alternatively, generators using small containers may attach a tag to a container to comply with the marking and labeling requirements.

Comment: The proposed additional labelling requirements duplicate exist regulatory programs: EPA's proposed additional labeling requirements add an unnecessary burden on the regulated community that is already required to label hazardous chemicals per Occupational Safety and Health Administration (OSHA) requirements. (0139)
EPA Response: The Agency's marking and labeling requirements do not duplicate existing regulatory programs as much as reinforce the need for better risk communication while hazardous wastes are being accumulated on-site. There is really only three minor tasks generators have to perform: (1) mark or label their containers with the words "Hazardous Waste"; (2) mark or label its containers with the applicable hazards of the contents, such as with a hazard communication consistent with the DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F (placarding) while the waste is accumulated on-site; and (3) identify and eventually mark the container with the applicable RCRA hazardous waste codes prior to container being sent off-site. EPA believes it is important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know as much as possible about the potential hazards of the contents in containers being accumulated, transported, and managed, whether on site and/or off site, so that the hazardous wastes are managed in an environmentally sound manner.
Please note that generators must already mark their containers with a hazard communication consistent with the DOT requirements prior to sending their containers off-site to a RCRA permitted TSDF or other facility for recycling or for waste management. Generators have other marking and labeling options for identifying the container hazards when the hazardous wastes is accumulated on-site, such as a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard at 29 CFR 1920.1200; or a chemical hazard label consistent with the NFPA code 704), but we first reference the DOT requirements because the generator will ultimately have to satisfy those requirements anyway.
Comment: UofL suggests EPA drop the proposed additional labelling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. In lieu of dropping the proposed additional labelling requirements, UofL requests that EPA exempt containers smaller than 55 gallons from the proposed additional labelling requirement. This exemption would reduce the burden on research facilities like UofL, but allow emergency response personnel an added layer of information in cases where the containers are large enough to pose a serious hazard. (0139)
EPA Response: EPA disagrees with this commenter, and continues to believe that this requirement is appropriate. Moreover, EPA encourages college and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the types of concerns expressed in this comment.
Comment: SOCMA is glad to see EPA say that its proposals for enhanced labeling of hazardous waste containers and tanks could be satisfied by compliance with DOT or OSHA marking requirements. [Footnote 29: Id. at 57931, 57949, 57965, 57974, 57978, 57980.]. Both of these programs have been around for decades and their effectiveness is well understood. It is vastly more efficient and simpler to allow facilities to meet these RCRA requirements by means of DOT and OSHA regulations directed toward the same hazards when the facilities will have to comply with those other requirements in any event.

We are concerned, however, by the preamble's implication that these standards may not be adequate. In particular, we are not aware of any circumstances where the DOT shipping name would be inadequate to identify the contents of a container. [Footnote 30: Id. at 57931, 57949.] (0192)
EPA Response: In response to comments, we have simplified the proposed marking and labeling for containers in SAAs and CAAs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. Therefore, there should not be any circumstances where the DOT shipping name would be inadequate to identify the contents of a container.
Comment: Additionally, we understand and appreciate the logic of placing the labeling requirements at the point of generation, especially in a system where waste status is determined outside of a central accumulation area, but the lack of guidance is very concerning. Yes, a container must be labeled "hazardous waste", but what system is used to communicate specific hazards? There is no standard offered. What one individual prefers cannot work in all instances. Additionally, the regulatory inspector must be able to agree that the chosen method is a recognized standard in communication. Many containers, particularly those found in laboratory work, are small enough to be exempt from other regulatory burdens (e.g. D.O.T. labeling); additional labeling requirements will not aid individual safety as suggested in the new standard. (0202)
EPA Response: The Agency disagrees with the above comment that we have not provided a standard or guidance to communicate specific hazards. We direct the commenter to our response to Commenter 0089 where we identify options for generators to mark or label their containers and tanks with the applicable hazard associated with the contents.
Comment: Suggestion to Address Concerns in Comment #4: Purdue suggests EPA drop the proposed additional labelling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. In lieu of dropping the proposed additional labelling requirements, Purdue requests that EPA exempt containers smaller than 55 gallons from the proposed additional labelling requirement. This would reduce the burden on research facilities like Purdue, but allow emergency response personnel an added layer of information in cases where the containers are large enough to pose a serious hazard. (0208)
EPA Response: The Agency disagrees with the above comments and directs the commenter to our response for Commenter 0139.
Comment: #4a. The proposed additional labelling requirements duplicate exist regulatory programs: EPA's proposed additional labeling requirements add an unnecessary burden on the regulated community that is already required to label hazardous chemicals per Occupational Safety and Health Administration (OSHA) requirements. (0208)
EPA Response: The Agency disagrees with the above comments and directs the commenter to our response for Commenter 0139.

Comment: Comment #5: UVM suggests EPA drop the proposed additional labeling requirements altogether due to the requirement being duplicative of other programs and very difficult to implement. Alternatively, EPA could apply the logic developed in 262.206. (0221)
EPA Response: The Agency disagrees with the above comments and directs the commenter to our response for Commenter 0139.

Comment: TCCI does not understand the justification for a substantial expansion of labeling requirements for the simple accumulation of hazardous waste without a permit. EPA does not cite instances where the existing labeling is inadequate but simply states that it is "important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know as much as possible about the potential hazardous of the contents in containers being accumulated, transported, and managed, whether on-site and/or offsite, so that the hazardous wastes are managed in an environmentally sound manner." (80 FR 57949).

TCCI does not believe that identification of the contents adds anything to the safe management of the waste over and above the current marking of "Hazardous Waste". TCCI reminds EPA that safety labeling on containers and other such units is regulated under the prevue of OSHA. In fact, in the summer of 2016 substantial new labeling requirements will be applicable in the United States under the new Global Harmonization System (GHS). At a minimum, EPA should not get involved in new labeling requirements until the regulated community has had an opportunity to understand and implement systems to comply with the new GHS requirements.

TCCI asks EPA to consider that with its new enforcement directives as discussed previously, even the most minor labeling deviations can result in substantial enforcement penalties. RCRA has operated for 30 years without a requirement for this information on containers and EPA has not indicated a "need" rather than a "nice-to-have" in the preamble for these proposed expanded labeling requirements for containers in accumulation. At a minimum, TCCI strongly urges EPA to suspend this proposal until business has had an opportunity to implement the new GHS labeling requirements. Business analysts suggest a difficult business environment for 2016. With comprehensive labeling requirements becoming applicable in the summer of 2016, businesses will have more on their plate than many can manage in the near term. To require such labeling for hazardous waste in the next 12 to 18 months is unjustified and excessive particularly in light of the expanded enforcement consequences. EPA has not addressed the additional burden such labeling would entail for LQGs, SQGs, CESQGs, and satellite areas. Finally, a requirement to include RCRA codes on containers in accumulation also adds nothing to the proper management of waste. For waste to be shipped offsite, hazardous waste manifests include RCRA codes, DOT shipping names and land disposal restriction information. In such a competitive environment, duplicate efforts that add no tangible value are intolerable.

TCCI strongly urges EPA to reconsider the new labeling requirements for hazardous waste generators. (0225)
EPA Response: In response to comments, we have simplified the proposed marking and labeling for containers in SAAs and CAAs by eliminating the requirement that SQGs and LQGs mark their containers with words that identify the contents of their containers. Commenters argued, and EPA agrees, that a requirement to identify the contents of a container could be subject to much interpretation and problems with implementation and compliance could emerge. Therefore, there should not be any circumstances where the DOT shipping name would be inadequate to identify the contents of a container.