One commenter stated that if EPA decides to pursue the development of a tool like this, the tool should be designed in such a way that it can be easily adapted to more stringent and broader-in-scope state requirements. .Any tool developed by EPA should not only address the possible application of exemptions in 40 CFR 261.4, but also those in §261.2 (especially 261.2(e)), 261.6, 273, and 279. This commenter also believes it should be done the other way around. That is, the tool should first determine if the waste is listed or characteristically hazardous, and then determine if it is eligible for one of the exemptions listed above.
The tool should provide the user with some sort of output that documents the characterization process, including the generator's answers to the key questions that produced the end result. (0178)
Another commenter supportive of developing an electronic waste determination Tool recommended that this tool be available online and via a downloadable app. A decision tree tool that guides the user through the process will de-mystify the task for smaller businesses that don't have professional environmental staff. We expect that the accuracy of waste determinations will dramatically increase with the use of a tool. (0248)
Alternative ideas (0134, 0181, 0213, 0216, 0235)

Rather than spend money developing a new electronic hazardous waste determination tool, two commenters recommended the Agency reactivate the RCRA Call Center. The Call Center served as a great tool for industry as it allowed companies to call in with specific questions regarding waste generation and disposal that were answered by staff who were very familiar with the laws and regulations governing industry. Having this system re-established would be very beneficial to industry. (0134, 0181)

Two commenters noted that many Treatment, Storage, and Disposal Facilities (TSDFs) have developed efficient systems for determining whether a solid waste is a hazardous waste, and encourages EPA to develop the hazardous waste determination decision tool in conjunction with TSDFs. (0213, 0216)
One commenter recommended a coordinated educational strategy involving state and EPA RCRA programs, waste haulers and the SBEAP/SBOs. The strategy could include online resources reminding generators that a waste determination needs to be made, explaining how to do it in simple terms, helping quantify hazardous waste generated for a given calendar month and determining when and how to notify the state and/or EPA. For instance, EPA could provide grants to states to develop electronic systems for waste determination. (0235)

Response: EPA agrees with those commenters who stated that developing a complex electronic waste determination decision tool would not be very efficient and effective. We agree that many waste determinations are site-specific and therefore almost impossible to model. We also can understand why generators would be hesitant to use an electronic tool if the determination was found not to be accurate and they were cited for a violation. However, as we stated very clearly in the preamble, it's the generator's responsibility to make a hazardous waste determination. Using an electronic tool may help them in that decision, but if an electronic waste determination tool was ever developed (whether by the private sector or EPA), generators would have to understand its limitations if they used it to make waste determinations.
The Agency also agrees with those commenters that suggested opportunities may exist for developing an electronic waste determinations tool capturing common waste streams or families of common waste streams such as solvents, acids and possibly metal bearing waste streams.
We also agree that if a tool  were developed, such a tool should provide the user with some sort of output that documents the characterization process, including the generator's answers to the key questions that produced the end result. We also agree that if the Agency were to develop an electronic tool it would not be mandatory as much as another source of information that could help generators make more reliable and accurate waste determinations.
As for alternative approaches, reestablishing the RCRA Hotline or call center is also very expensive, recurring activity for which funding and other resources would not be available. If the Agency were to move forward with developing an electronic tool, coordinating and understanding TSDF decision tools would likely be part of the developmental process.
The Agency will also take under advisement in our future work in this area the commenter's recommendation that we develop a coordinated waste determination educational strategy involving state and EPA RCRA programs, waste haulers and the SBEAP/SBOs.

Section <IP_ADDRESS> - Other

Comment: We also believe that waste determinations should be made by analytical testing every two to three years, even when the generator believes that the waste stream is consistent. Small changes in process or machine parts may lead to different waste composition and generators are often unaware of which changes could impact a waste determination. We believe that writing a list of specifications for when to re-test/re-determine the nature of a waste stream would be an impossibly complex undertaking, and that generators would not read or follow the inevitably highly detailed document that could be produced. Instead, we believe that waste determinations should be good for a limited period of time (two or three years) and that new waste determinations should be made and documented at regular intervals. (0082)
Response: The Agency agrees that as a best managment practice, generators may want to re-visit past waste determinations periodically to validate a previous determination, but a better best management practice may be to have processes and procedures in place to conduct a new waste determination any time there is a change in process materials/chemicals and changes in the actual production process.

Comment: Rather than eliminating 262.40(c), it could reference 262.11(e) recordkeeping requirements for waste determinations, so that someone looking for all the recordkeeping requirements in 262.40 would find the 262.11(e) requirement as well. Also, 262.44 references 262.40(c), so you will want to make a conforming change there if you do eliminate 262.40(c). Reference to 262.11(e) should be added to section 262.44 and reference to 262.42(c) may also be missing from 262.44. (0082)
Response: The Agency agrees with this comment and maintained 40 CFR 262.40 (c).
Comment: The agency requested comments on particular families of solid waste should be excluded from this requirement if adopted.

:: For entities such as educational institutions which provide and/or oversee housing for individuals that portion of the facility occupied by such individuals.

:: Waste from restaurants or other dining facilities.

:: Landscape waste such as grass clipping, tree trimmings, etc. (0097)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Subtitle C of the Resource Conservation and Recovery Act provides for the regulation of hazardous waste. If EPA wishes to pursue the documentation of non-hazardous waste management it should do so under the authority of Subtitle D. (0104)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: TDEC further recommends that recordkeeping requirements associated with waste characterizations be made applicable to all generator categories, not just SQGs and LQGs. CESQGs also have the regulatory responsibility of being correct in hazardous waste determination. (0116)

Response: At this time, the Agency is not requiring CESQGs/VSQGs to document their hazardous waste determinations. However, the Agency will continue to evaluate the implications of CESQGs failing to make an accurate hazardous waste determination.
Comment: In these cases, the inspector can determine the basis of the generator's determination and the adequacy of the determination through interview. A written record is unlikely to provide additional information than what is available to the inspector through the interview process. (0121)
Response: The Agency disagrees with this comment since there is no guarantee that the individual who made the waste determination will be available during the inspection, remembers the reasons why the waste is a hazardous waste or not. The worker may not even work there anymore. A written waste determination is always preferable, and is required as part of the recordkeeping regulations.
Comment:  UNL acknowledges that there are situations where most of the information proposed by the Agency is important due to unique circumstances. As it stands today, the onus is on the generator to justify their waste determination (both whether a solid waste is a hazardous waste and the information necessary to support a waste determination regardless of whether a solid waste is determined to be a hazardous waste) to the satisfaction of an inspector of the Agency or delegated authority. The generator should be responsible to decide whether the situation is unique enough to justify a written record and the minimal content of that record to satisfy an inspector. The generator already has incentive to do so to avoid allegation of non-compliance.  (0121)

Response: With respect to documenting non-hazardous waste determinations, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Regarding the second part of this comment, the Agency disagrees and is required as part of the recordkeeping regulations at 40 CFR 262.40 (c).
Comment: 5.1.2 EPA's Proposal Is Deficient under the Administrative Procedure Act Because It Fails to Reference Legal Authority for Requiring Recordkeeping for Non-Hazardous Waste Determinations

As noted above, EPA lacks legal authority under RCRA Subtitle C to require recordkeeping for non-hazardous waste determinations. We also do not believe the Agency has any other legal authority for such a requirement. If, nonetheless, EPA believes it has legal authority, it would still be precluded from finalizing the current proposal, because it fails to meet fundamental requirements of the Administrative Procedure Act ("APA").

Section 553(b)(2) of the APA requires that a notice of proposed rulemaking must include a "reference to the legal authority under which the rule is proposed." See 5 U.S.C. § 553(b)(2). EPA purports to provide such a reference on the second page of the preamble to the proposal. See 80 Fed. Reg. at 57,919. However, it cites only to certain provisions of Subtitle C. Thus, the Agency cannot rely on any possible authorities that may exist outside RCRA. In addition, if EPA somehow believes that the referenced provisions provide adequate legal authority, it must explain how it believes such provisions do so, in order to provide the public a meaningful opportunity to comment. The Agency cannot proceed with the proposed requirement based on its current proposal. (0168)
Response: The Agency disagrees with the above comment. The commenters are incorrect. The Agency has the authority under sections 3007 and 2002 of RCRA to require such records be kept, but instead has chosen not to finalize our use of such authority in this case and rather follow the alternative approach discussed below.

Specifically, RCRA section 3007 allows us to gather information about any material when we have reason to believe that it may be a solid waste and possibly a hazardous waste within the meaning of RCRA section 1004(5). A generator will not know definitively whether a waste that has potential to be hazardous is hazardous or non-hazardous unless it identifies the waste and documents that identification, even if the waste turns out to be non-hazardous. Moreover, RCRA section 2002 also gives EPA authority to issue regulations necessary to carry out the purposes of RCRA. The intent of the proposed requirement to document non-hazardous waste determinations is to provide basic information to EPA about the potentially hazardous nature of the waste that is generated (even if it is ultimately determined to be non-hazardous) in order to ensure its proper management, enable regulatory agencies to monitor compliance adequately and to ensure appropriate environmental protection.

Comment: 5.1.5 Retailers Should Be Exempted from Any Final Requirement to Keep Records on Non-Hazardous Waste Determinations

If EPA, despite the arguments above, decides to move forward with its proposal to require generators to keep records of their non-hazardous waste determinations, it should exempt the retail sector from that requirement. As discussed above, the burden on the retail sector would be overwhelming, primarily because retailers  -  unlike other generators  -  may have thousands of different, individual "waste streams" because of the large numbers and varieties of consumer products that retailers carry (even though each "waste stream" might only have a few unsold or returned items in it for any given year), and these "waste streams" may change significantly from year to year. Thus, the total amount of waste generated by the retail sector is almost negligible in comparison to the wastes generated by other industries -- probably less than 0.1% of the total, as discussed in Section 4.2 above.

As a policy matter, it simply makes no sense to impose such extreme costs on the retail sector, just to provide some marginal additional assurance that less than 0.1% of the wastes being generated in the country are being properly characterized. To prevent such a misallocation of resources, EPA should exempt retailers from any final requirement to keep records on non-hazardous waste determinations. (0168)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 5.2.4 The Proposed Requirement that the Record "Comprise the Generator's Knowledge" Is Linguistically Awkward, Impermissibly Vague, and Potentially Inconsistent with Due Process

Under the proposed regulatory text, the records of hazardous and non-hazardous waste determinations must "comprise the generator's knowledge of the waste." See 80 Fed. Reg. at 57,993 (to be codified at 40 C.F.R. § 261.11(e)). We frankly are unsure what purpose this phrase serves or what it is intended to mean. The rest of the proposed regulatory language, which specifies what must be in the record and that it must support the generator's determination, would appear to be sufficient for EPA's purposes. The Agency presumably intends the additional language to have some meaning, but what that meaning might be is difficult to divine.

Our concern is that EPA may be intending to require that the records include the entirety of the generator's knowledge of the waste, such that the generator would be precluded during an inspection or an enforcement action from presenting any additional information about the waste from outside the record to demonstrate that the waste is non-hazardous. If this is what the Agency means, we believe it would violate the Due Process Clause of the U.S. Constitution, by denying generators the means to defend themselves. Such a provision would also encourage and effectively dictate that generators stuff their records with every imaginable piece of information about their wastes, so as to ensure that such information could be called upon if needed in the future. This would make the already onerous recordkeeping requirement virtually untenable.

Finally, in the event that EPA intends the "comprise" language to be interpreted in this way, the Agency has "hidden the ball" in its proposal, thereby failing to provide the public adequate notice and opportunity to comment, as required under the APA. Thus, this language should be deleted in any final rule. (0168)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 5.2.5 The Proposed Requirement for a New Record Whenever a Waste "May Have Changed" Would Be Unworkable, Inasmuch as It Would Mandate Perpetual Development of Records

EPA has proposed to require that each waste be subjected to a repeat hazardous waste determination "at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste." See 80 Fed. Reg. at 57,992 (proposed to be codified at 40 C.F.R. § 262.11(a)). Since the Agency is also proposing to require a record for every determination, the combined effect would apparently be to require a record whenever a waste "has, or may have, changed."

Such a rule would be wholly unworkable. Arguably, a waste "may have changed" at almost any moment, both when something happens to it (even something minor, such as shaking or opening of a container) and when nothing happens to it (due to things such as settling, exposure to sunlight, gradual degradation, or spontaneous chemical changes). This is especially true, given that the proposal refers to any potential change in properties, whether such changes may be material to classification of the waste or not. Ordinarily, generators might be expected to make routine judgments about which, if any, of these moments might warrant a new determination of hazardousness or non-hazardousness. However, under the recordkeeping requirement, any time that the generator thinks about whether the waste "may have changed," it would be obligated to prepare a new record of the determination. In fact, a new record would be required even when the generator doesn't think about it, whenever the waste "may have changed" (which, as noted above, could be always). The generator would be forced into a perpetual state of record writing. EPA clearly cannot proceed down this path. (0168)
Response: The Agency disagrees with the above comments. This issue was first discussed in 1980 (45 FR 33095-96, May 19, 1980); i.e., that the point of generation is identified as the point at which the material is first identified as a solid waste under RCRA, before any dilution, mixing, or other alteration of the waste occurs.
Further, RCRA solid and hazardous waste must be reevaluated at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste, such that the RCRA classification may have changed. As discussed in the proposal rule at 80 FR 57938, and in referring to characteristic hazardous wastes, the Agency stated:
      This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.

The Agency received other comments similar to the above. Many commenters were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations. (See for example, discussion at 80 FR 57939 and 55 FR 39410, September 27, 1990) In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties.

The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination.

Comment: Under current rules, generators must determine if their waste is hazardous and both LQGs and small quantity generators ("SQGs") must also retain records of their hazardous waste determinations for at least three years. Under EPA's proposal, LQGs and SQGs would also have to keep records for waste determined to be non-hazardous. The agency states in the NRPM that "[t]he focus of th[e] provision is on solid wastes that have the potential to be hazardous wastes" and that it is "not interested in . . . solid wastes that clearly have no potential to be hazardous, such as food waste, restroom waste, or paper products."

The above explanation is of doubtful utility, however, since the proposed language of the rule itself does not contain any such limitations. Proposed provision 262.11(e), Recordkeeping for small and large quantity generators, simply requires LQGs and SQGs to "maintain records supporting its solid and hazardous waste determinations, including records that identify a material as a solid waste as defined by 40 CFR 261.2." Generators are therefore left to rely on EPA's statement in the NPRM preamble that it means to cover only solid wastes having the "potential to be hazardous wastes," and will have to make independent decisions of where to draw the line for each type of non-hazardous waste generated. This leaves generators vulnerable to citations if either EPA or a state agency disagrees with the generators' decisions about the scope of their non-hazardous waste recordkeeping. (0188)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: The phrase "comprise the generator's knowledge of the waste" is quite expansive by its own terms and could conceivably be interpreted to require a record of literally everything a generator knows about a particular waste. The proposed language at section 262.11(e) goes on to specify that records should "include but not be limited to" various types of information listed in the rule. [Footnote 13: Required information includes, "[t]he results of any tests, sampling, or waste analyses; records documenting the tests, sampling, and analytical methods used and demonstrating the validity and relevance of such tests; records consulted in order to determine the process by which the waste was generated, the composition of the waste, and the properties of the waste; and records which explain the knowledge basis for the generator's determination, as described at 40 CFR 262.11(d)(2).] In addition to the listed information, a generator would likely also want to maintain any information that might be relevant in an inspection, or that might be important in defending an enforcement action challenging waste determinations.

We question whether maintaining records of this amount of information (particularly with regard to solid, non-hazardous waste) would provide any additional environmental benefit. Some of the described information is redundant and the recording of other types would be useless if not nonsensical. For example, we cannot envision a situation where a generator would need to consult records "in order to determine the process by which" its own waste is generated. (0188)
Response: There has been a long-standing regulatory requirement that SQGs and LQGs keep records of any test results, waste analyses, or other determinations made in accordance with §262.11 for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal. The modifications to the recordkeeping requirements are clarifications meant to assist the generator in what types of records a generator may use in making a hazardous waste determination.
Regarding non-hazardous waste determination documentation, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, the Agency believes this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Continuing Hazard Determinations (p. 57939)

As noted above, LQGs and SQGs must determine whether a waste is hazardous or non-hazardous when it is first generated. In addition, however, the proposed rule would require hazard determinations to be made "at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste."

While the proposal may result in a generator having to perform multiple assessments of a waste, we support regulatory requirements that are designed to ensure that waste is properly characterized, managed and disposed. (0188)
Response: Hopefully the Agency is responsive to the above comment that regulatory requirements be designed to ensure that waste is properly characterized, managed and disposed, including those situations where multiple assessments are necessary because the properties of the waste may change.
Comment: Though the preamble states that documentation is not required for solid wastes that have "no potential to be hazardous," the proposed rule does not include any sort of exemption from the documentation rule or make any such distinction. (0201)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: 262.11 waste determinations & profiles - generators should be required to notify Subtitle C facilities if non-hazardous waste waters sent off site for treatment will generate a sludge listed in 40 CFR 261 Subpart D. (0214)
Response: As the commenter probably knows, the Agency cannot require a generator to notify either a Subtitle C or D facility if it is sending a non-hazardous waste water off-site for treatment even if the possibility exists that the treatment will generate a listed sludge found under 40 CFR 261 subpart D. Examples of such wastewaters would occur from electroplating operations and chemical conversion coating operations, or operations where the sludge generated from treating the waste waters generate an F006 or F019 sludge.
However, the Agency would recommend the generator, as a best management practice, inform the receiving facility that the waste water it is treating would generate a listed sludge. Similarly, the receiving facility should also, as a best management practice, ask its customers about the source of the waste waters and be aware, if not informed by the generator, that the treated waste water would generate a listed sludge subject to all applicable RCRA regulations in parts 260-270.
Comment: The proposed waste determination information that must be documented and maintained is overly-prescriptive and is more information than is necessary. (See Comment #14). (0219)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: EPA should not require SQGs and LQGs to prepare and retain documentation when a solid waste is determined not to be a hazardous waste. (See Comment #15.A.). Further, EPA should explicitly state in this rule that the waste determination documentation is not required for the many hazardous secondary materials that are excluded from the definition of solid waste, or for the many solid or hazardous wastes that are exempted by rule from the requirement to conduct a hazardous waste determination or to document that determination. (See Comments #15.B. and 15.C.). (0219)

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

Comment: Waste determination documentation warning against comingling (40 CFR §262.11(e))

We question whether the proposed sentence, "Generators may wish to segregate any of their municipal solid waste from other solid and hazardous waste to avoid potential comingling," is the best way of stating this point. We understand this point to be a warning to generators not to create additional hazardous waste by mixing their municipal solid waste with other listed hazardous waste or characteristic hazardous waste that could cause the entire mixture to be hazardous waste under the mixture rule. Perhaps the following makes the point more clearly: "Generators may wish to segregate their municipal solid waste from hazardous waste as necessary in order to avoid each mixture becoming a hazardous waste under the mixture rule at 40 CFR §261.3(a)(2)(iv)." (0219)

Response: The Agency is deleting the sentence regarding the co-mingling of wastes proposed at § 262.11(e). With the Agency addressing the mixing of solid with hazardous wastes by generators at § 262.13(f), this statement in § 262.11 is not needed.

Comment: In addition to this requirement being quite burdensome, the proposed requirement to document each determination that a solid waste is not a hazardous waste is not necessary. Currently, if questioned by an inspector, a generator must provide the inspector with sufficient justification as to why a particular solid waste is not a hazardous waste. EPA is quite successful in bringing enforcement actions when the generator's justification is insufficient.

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

Comment: 16. Hennepin County supports the proposal to clarify the generator's obligation to evaluate its waste and making it clear that the evaluation must be accurate. However, we suggest that the Agency consider adding a time limit to accomplish the evaluation, and a requirement that the waste be assumed to be hazardous if the waste is not evaluated within the time limit. See Minn. R. 7045.0214, Subp.l. (0229)
Response: The Agency agrees with the above comment that waste determinations must be accurate. However, the Agency does not agree that a specific time limit be established since a representative sample of the waste may need to be sent off-site for testing in which case there is no guarantee when the results will be returned within the specified time allowed. The agency believes that the once a hazardous waste has been generated at the point of generation, then the process should start in making an accurate hazardous waste determination.

4. EPA is proposing to modify the recordkeeping requirements for small and large quantity generators to include keeping records for both solid and hazardous waste.

Comment: CRWI has two concerns about the recordkeeping requirements for making a determination that a material is not hazardous waste as proposed in 262.11(e). First, there is a potential conflict with wastewaters that are discharged to a publically owned treatment works (POTW) or NPDES facility. To resolve this, we believe that the Agency should note in the rule that where individual states allow for aggregation in characterization and reporting of wastewaters to POTW or on-site NPDES permitted facility, the state should provide guidance on characterization requirements. This provision should not preclude states from allowing methods other than point of generation for waste streams such as wastewaters. (0255)
Response: The Agency believes the above comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: In order to balance the benefits of proper hazardous waste identification with the associated documentation and recordkeeping burdens, the City suggests that EPA develop a large list of examples of the types of waste that are presumed to be non-hazardous and for which documentation is not required. These "presumed non-hazardous wastes" should be identified in the regulation itself (as opposed to only described in the preamble) and should be specifically noted as not requiring documentation. (0257)

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

Comment: 4. The Proposed Recordkeeping Requirement is Arbitrary and Unjustifiable Because the Potential Environmental Benefits Do Not Outweigh the Costs

According to EPA, "the benefits to human health and the environment far outweigh the minimal costs" of requiring SQGs and LQGs to document and maintain non-hazardous waste determinations. 80 Fed. Reg. 57,942. One of the main benefits EPA expects to gain from this proposed requirement is to allow EPA inspectors to more easily and efficiently assess the reasonableness of potentially questionable determinations. See 2015 Economic Assessment at 4-19. However, the consumer products handled at Inmar's facilities are manufactured to a precise specification, and these consumer product wastes typically remain in their original manufacturer packaging, which displays the product name and ingredients, and often lists hazards and warnings pursuant to strict federal and state packaging and labeling requirements. See e.g., 21 U.S.C. §§ 343, 352, 362 (FDA labeling requirements for food, drugs and devices, and cosmetics under the Federal Food, Drug, and Cosmetic Act); 15 U.S.C. §§ 1451 et seq. (the Fair Packaging and Labeling Act); 15 U.S.C. §§ 1261 et seq. (labeling requirements for products containing hazardous substances under the Federal Hazardous Substances Act). Accordingly, unlike manufacturing waste-streams generated in factories, in the case of retail and pharmaceutical products, EPA inspectors will have significant information about product ingredients and hazards based on the information on manufacturer labels and/or in Safety Data Sheets.

Thus, while this proposed recordkeeping requirement may provide an environmental benefit in the context of industrial sector wastes, the requirement adds little value in the context of the retail, healthcare and reverse distribution industries. As a result, the Proposed Rule is arbitrary and unjustifiable because the costs significantly outweigh the benefits. If EPA decides to finalize the Proposed Waste Determination Requirement, it should exclude consumer product wastes because these wastes pose minimal environmental risks and make up a tiny fraction of the total hazardous waste generated in the United States. (0260)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: 1. EPA Failed to Identify an Appropriate Legal Authority for Requiring Generators to Maintain Non-Hazardous Waste Determinations

Pursuant to the Administrative Procedure Act ("APA"), an agency proposing a rule must identify the legal authority under which the rule is proposed. See 5 U.S.C. § 553(b)(2). Here, EPA is relying upon only its hazardous waste authority under Subchapter III of RCRA. See 80 Fed. Reg. at 57,919 (citing 42 U.S.C. §§ 6921, 6922, 6923, and 6924). None of the cited provisions provide EPA with authority to require recordkeeping for non-hazardous solid waste ("solid waste"). If EPA wants to regulate solid waste in the Proposed Rule, it must properly identify its legal authority for issuing these new requirements, if such authority even exists.

To the extent that EPA's Proposed Waste Determination Requirement extends to materials that are neither solid wastes nor hazardous wastes, see section II.B.2, infra, such a requirement is clearly beyond EPA's statutory authority, since RCRA does not apply to materials that are not solid wastes. See Am. Mining Cong. v. U.S. EPA, 824 F.2d 1177, 1179 (D.C. Cir. 1987) ("[T]he scope of EPA's jurisdiction [under RCRA] is limited to those materials that constitute `solid waste.'"). (0260)

Response: The Agency disagrees with the above comments. This issue was first discussed in 1980 (45 FR 33095-96, May 19, 1980); i.e., that the point of generation is identified as the point at which the material is first identified as a solid waste under RCRA, before any dilution, mixing, or other alteration of the waste occurs.
Further, RCRA solid and hazardous waste must be reevaluated at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste, such that the RCRA classification may have changed. As discussed in the proposal rule at 80 FR 57938, and in referring to characteristic hazardous wastes, the Agency stated:
      This implies that a generator's waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.

The Agency received other comments similar to the above. Many commenters were concerned that in practice, this provision would require them to constantly re-evaluate their wastes. However, the Agency stands by and is not changing this long-standing position. Generators have a responsibility to understand the properties of their waste, not only to make an accurate determination, but also to manage the waste properly. In many instances, the properties of the waste most likely will not change. But in other situations, exposure to the elements, or the very nature of the chemicals in the waste may cause its properties to change. Generators have a responsibility as part of the waste determination and waste management processes to be aware of those situations. (See for example, discussion at 80 FR 57939 and 55 FR 39410, September 27, 1990) In such situations, generators should also notify any subsequent waste handlers to monitor for changes in waste properties.

The Agency emphasizes that a generator needs to understand what type of waste it has generated, why it is or is not hazardous at the point of generation, and proceed accordingly in managing and monitoring its waste. If a generator is aware that its waste tends to have the potential to change over time, the generator may wish to establish processes to determine whether the nature of its waste has changed and make a new hazardous waste determination.

Section 4.3 - Re-notification
Introduction
Because SQGs need only notify once, and that is primarily to obtain RCRA ID so that they can ship hazardous waste off-site to a RCRA permitted TSDF, there is no assurance that the information collected in EPA's and the states' databases over time will accurately reflect which facilities are generating hazardous waste, and what might have changed over time.
This lack of a re-notification requirement, especially for SQGs at the federal level, greatly impairs EPA's and the states' ability to use the information for compliance monitoring and programmatic purposes.

To address this problem, the Agency proposed that SQGs must re-notify EPA using the Site ID form prior to February 1 of each even-numbered year, similar to the biennial report with the SQG re-notifications occurring one month prior. EPA also took comment on alternative time frames for SQG re-notification such as every four years, alternate cycles from the biennial report, and rolling re-notifications. Finally, EPA took comment on whether a better approach would be for EPA to require an SQG or LQG to re-notify only in the event of a change to certain information, such as change in ownership or generator category.

For SQG Re-Notification
The following commenters supported EPA's efforts to require SQG re-notification either as proposed, or with modifications: 0125, 0060, 0092, 0108, 0121, 0134, 0145, 0160, 0183, 0207, 0217, 0225, 0232, 0243, 0248, 0264, 0116, 0126, 0178, 0188, 0223, 0112, and 0235. Specific comments and EPA responses are discussed below.
Comment: The downside to a re-notification requirement or recommendation of any kind is that sites that have gone out of business will not submit forms so it will be difficult to improve the data for them. States will likely need additional resources to conduct data cleanup, which could encompass data mining, sending thousands of letters, or having staff go out to determine the operational status of sites. The Expert Group recommends that ORCR develop guidance for administrative inactivation of EPA ID Numbers based on a lack of hazardous waste shipment data or on the lack of re-notification over a period of time. Once the national e-Manifest database exists, it can be used to determine if a generator shipped hazardous waste, although it will be several years after implementation before a longer period of record is available. (0125)
Response: EPA will look into the feasibility of developing guidance for administrative inactivation of EPA ID Numbers based on a lack of hazardous waste shipment data or on the lack of re-notification over a period of time.

Comment: The Expert Group briefly discussed and abandoned the suggestion to base SQG re-notification on an ID-specific anniversary date as that would be too difficult for both sites and states to track. While a fixed date will result in an excessive amount of forms being submitted at the same time, it will be easier for SQGs to remember. It would also be easier for states when preparing their resources and providing a reminder to their SQGs. (0125)

Response: The Agency agrees with this commenter's remarks and will use a fixed date approach in requiring SQG re-notification.
Comment: Although a good idea, it will be difficult to enforce. Will it be facilities who are SQGs in December of the previous year, or facilities that had been a SQG at any time in that previous year? (0060)
Response: Re-notification will be predicated on their normal or regular generator category.

Comment: Suggest alternating the years for the SQG re-notification process and the LQG Biennial reporting. This will reduce the date entry burden.(0060)
Response: The Agency agrees with this comment and has finalized the rule to account for alternating reporting years.

Comment: Suggest a requirement to document submittal of the executive summary of the contingency plan to the LEPC or local authorities. (0060)
Response: Submittal of a contingency plan executive summary in the first place is only applicable to LQGs and not to SQGs.  Thus, this comment regarding documentation of submittal is not relevant for SQGs.
Comment: Re-notification and updating of generator information, if done electronically within the EPA/State database, should reduce the burden for all involved. However, the need for the Certification signed by the entity's legal owner, operator, or authorized representative is the difficult part of an electronic update. In a large company setting such as might be the case with a SQG or LQG, the Certification may require many layers of approvals which would not work with the ease of the electronic update. Requiring the Certification only when the owner has changed would facilitate the use of the electronic biennial update. (0092)
Response: The Agency agrees that re-notification and updating of generator information, if done electronically within the EPA/State database, should reduce the burden for all involved. The Agency has developed MYRCRAID which allows for updating of the Site ID form electronically  -  provided the state desires to utilize the electronic system. While Certification may be difficult for some generators, states may have provided flexibility in who may certify for any changes.  Similarly, a change of ownership will not trigger automatic SQG re-notification although we would expect either the previous or new owner to notify the state or EPA of the change so as to account for a change in who is responsible for managing hazardous waste while being accumulated on-site.

Comment: In South Carolina, the State requires an annual fee and Declaration of generator status at the beginning each calendar year for SQGs. Additionally, the State requires update of the generator information whenever there is a change. The proposed change would not impact our facilities as the State is already more restrictive, but as a generator, the requirement for re-notification every 2 or 4 years does not seem burdensome especially if the Certification is not required unless the owner/operator changes. Having a set deadline is easier to track than a rolling deadline, and if there is a change in responsible personnel, the regulation can be referenced to ensure the correct deadline. (0092)
Response: The Agency is in agreement with this commenter.
Comment: NJDEP supports efforts for updating generator information, and if left to no other data gathering mechanism, supports re-notification. However this is time consuming for the Agency and the states handling and processing this data. USEPA appears to be dismissing the significant information that will be generated from E-manifest. For the states that have manifest systems, we are aware who is generating waste, the types of waste generated, and the volumes generated. We are also able to compare the data annually to our lists of state-wide generators. USEPA will be able to garner the same data and develop similar reports. Maybe an initial round of notifications will be needed until e-manifest is running but after that, the two year notifications should be re-evaluated. (0108)
Response:  E-manifest specifications do not currently include a generator category data element, nor is including this data element possible without a regulatory change. However, the Agency will continue to investigate the feasibility of using e-Manifest data to identify active SQGs and LQGs. Similarly, the Agency in response to comments, has increased the time between SQG re-notifications from two to four years.

Comment: UNL agrees that periodic re-notification by SQGs and LQGs is important. We urge the Agency to consider blending their described alternatives to require re-notification by LQGs as part of the biennial reporting process, but require re-notification by SQGs as an event-driven process. Re-notification by LQGs as part of the biennial reporting process will require minimal additional effort on behalf of the generator. We suggest adding "stopped operations" to the list of SQG event-drivers that trigger re-notification. (0121)

Response: LQGs will continue to submit a biennial report every two years. While the Agency took comment on an event-driven re-notification process, we now believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators.

Comment: EPA proposes that SQGs and LQGs undergo re-notification. 80 FR 57946. Under existing § 262.12, generators seeking an EPA identification number must submit Form 8700-12 to EPA in order to receive one. Subsequent to obtaining an EPA ID number there is no federal regulation requiring LQGs or SQGs to re-notify EPA to update their site information or confirm the information is accurate.

More specifically, the proposal would require LQGs, having first obtained an EPA ID number, to re-notify EPA using the Site ID form prior to March 1 of each even numbered year. As for SQGs, those having first obtained an EPA ID number would have to re-notify EPA using the Site ID form prior to February 1 of each even number year. ETC believes requiring LQGs and SQGs to re-notify every two years would improve the agency and states' ability to use the information for compliance and monitoring purposes. A one-time notification provides no assurance that the information collected in EPA's and the states' databases, over time, accurately reflects which facilities are generating hazardous waste. (0134)
Response: The Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. While still several years away, states must become authorized for this provision. In the meantime, the Agency will work with the states and the regulated community to develop the necessary software and instructions to effectively implement this new requirement.  This re-notification requirement will also occur in years in which federal biennial reporting is not required. This form must be submitted by September 1st of each year in which re-notifications are required.

Comment: For SQGs in Nebraska, periodic re-notification will be a new requirement, but should create a minimal regulatory burden for generators. Once the initial notification to obtain an EPA ID number has been submitted, the generator need only review the previous notification and either make changes if necessary or confirm that the information remains accurate.

The addition of this minimal reporting requirement for SQGs is greatly outweighed by the benefit to state agencies in having accurate data that is reflective of which facilities are generating hazardous waste. Such data are highly relevant to state program management, planning, and compliance enforcement functions. Upon inspection, NDEQ has observed that approximately two-thirds of generators who initially notified as SQGs or were last inspected as SQGs have now dropped to CESQG status since notification or their most recent inspection. Accurate data as to current SQGs will be useful in allocation state inspection resources and meeting state-EPA agreements.

NDEQ appreciates EPA's recognition that the review and processing of SQG notifications will add to the administrative workload of state agencies. Accordingly, NDEQ suggests that it is appropriate for SQGs to re-notify every four years  -  as opposed to every two years. A four year reporting interval will make generator compliance with this requirement easier, but still serve to update federal and state data for the SQG universe. To more evenly distribute the paperwork burden on states, NDEQ also suggests that EPA consider establishing the deadline for SQG re-notification to occur after the LQG deadline in the same even-numbered year. NDEQ agrees with EPA that there are benefits to keeping both deadlines in the same year; however, as SGQ re-notification will be the larger of the two processing tasks, NDEQ believes that this task should not be confined to one month which also ends with the arrival of numerous LQG biennial reports to be processed. (0145)
Response: The Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements.
Comment: Having up to date generator status (e.g., active or inactive small quantity generator status) is good for industry, the public and government. However, EPA must make the notifications simple if it wants industry to comply. Industry does not want to have to complete an EPA 8700-12 form for changes or verification of generator status. While EPA may think the EPA 8700-12 form is simple. It is not. To ensure compliance with this proposed regulation, EPA should develop a simple one or two page form for submitting to EPA or states current facility status (active/inactive) and current generator status (VSQG, SQG, or LQG, as proposed in the rule). The notification frequency described in the proposed rule are not overly burdensome to industry. (0160)

Response: The Agency will look into the feasibility of simplifying the Site ID notification form.
Comment: KULC-EHS agrees that periodic re-notification by SQGs and LQGs is important. We urge the Agency to consider blending their described alternatives to require re-notification by LQGs as part of the biennial reporting process, but require re-notification by SQGs as an event-driven process. (0183)
Response: LQGs will continue to submit a biennial report every two years. While the Agency took comment on an event-driven re-notification process, we now believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators.

Comment: The re-notification of the SQGs is a great idea, but could prove to be difficult for the state to process the submitted information in a timely manner. (0207)

Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements.
Comment: Most States agree with EPA's identification of the need to account for SQGs, as well as all other generators, and their contribution to the totality of hazardous waste. Therefore, most States support re-notification for SQGs and LQGs on a biennial basis by March 1 of each even-numbered year. Some States do not support different requirements for SQGs and LQGs. Additionally, some States already require an annual re-notification. One State believes LQGs and SQGs should be able to confirm or update site information on a copy of the previous notification, on Form 8700-12, or on other form approved by EPA or an authorized State. Additionally, other States collect SQG data as part of their annual fees. Those annual fee submittal dates can vary. Those States should be able to use their annual fee forms instead of Form 8700-12 to collect SQG information. The States should have as much flexibility as possible in requiring the re-notification of LQGs and SQGs to ease the burden. (0217)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required.

Comment: One State strongly agrees with EPA's opinion that there are a large number of facilities that do not have up-to-date information; this State maintains up-to-date information of its LQGs and SQGs for financial purposes. Those LQGs and SQGs that no longer pay fees are inspected and their information updated in RCRAInfo. Therefore, this State has internal policies in place that prevent its SQG and LQG universe from being outdated. For these reasons, this State believes that additional re-notification requirements for SQGs and LQGs will create an undue burden for both the State and the regulated facilities. (0217)

Response: This state will not have to do anything different or have any additional burdens under this rule.

Comment: The re-notification requirements at 40 CFR 262.18(d) for small quantity generators (SQG) and LQGs as long as the notifications already required by authorized states such as Tennessee in their annual reporting package is acceptable rather than use of EPA's form 8700-12; (0225)
Response: States are allowed to use their own reporting forms so long as federal information requirements are collected.
Comment: The MPCA supports the proposed requirement for SQGs/LQGs to periodically update their notification of existence and activity to the EPA or authorized states. Minnesota has effectively required annual re-notification for LQGs to the MPCA since 1983, for SQGs since 1985, and for VSQGs since 1992. Minnesota does annually submit this information to the EPA. Without such re-notification, any list of prior notifications is of dubious value, decreasing every year, since many sites that previously notified have moved, closed, changed processes, or for any of many reasons ceased generating some or all hazardous wastes. In addition to concurrence with the issues discussed by the EPA at 80 FR 57947, the MPCA points as example to identical problems being experienced with the federal TSCA PCB program, where notifications required to be submitted in the early 1990's are now being found by both the EPA and MPCA to contain a majority of obsolete and useless information. The MPCA has found that annual re-notification is a very low burden on regulated parties, even on extremely small (minimal) hazardous waste generators (<100 pounds of hazardous waste per year). (0232)
Response: The Agency agrees with MPCA comments.
Comment: Clean Harbors believes requiring LQGs and SQGs to re-notify every two years would improve the agency and states' ability to use the information for compliance and monitoring purposes. A one-time notification provides no assurance that the information collected in EPA's and the states' databases, over time, accurately reflect which facilities are generating hazardous waste. (0243)
Response: The Agency agrees with Clean Harbor's comments.
Comment: DC supports this proposed change for SQGs. (0248)
Response: The Agency thanks DC for their comments.
Comment: EPA must also finalize its proposal to require LQGs and SQGs to re-notify EPA and the states of important hazardous waste generator information every two years, at a minimum. (0264)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required.
Comment: TDEC agrees with EPA's identification of the need to account for SQGs, as well as all other generators, and their contribution to the totality of hazardous waste. Given that Tennessee's current rules and regulations require SQGs to report hazardous waste generation information annually to the state and to notify TDEC of any significant changes in generator data within 30 days of when a change occurs, TDEC has no objections to the proposed change. The current annual data collected by the Department would be reported biennially to EPA. (0116)

Response: TDEC's SQG and LQG re-notification efforts are not affected by this rule since they have more stringent reporting requirements.

Comment: IME supports the re-notification requirement as a means of ensuring that EPA has current and relevant information on reporting facilities.

IME recommends that SQGs and LQGs both report on the same date of the same year. We believe it would be simpler and less confusing for most generators to do all their reporting at one time in a single year, particularly facilities that must report as both SQGs and LQGs because of their varying monthly waste production totals. It would be even more convenient for our member companies if the agency were to allow the re-notification to be done in conjunction with the biennial reporting. (0126)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required.
However, states may be more stringent than the federal program and have reporting requirements that satisfy the needs of this commenter.
Comment: The purpose of the initial notification is to identify the facility name, address, property owner, facility contact information, the types of hazardous waste generated, and the types of hazardous waste activities that the generator engages in. This information is entered into a federal database (RCRAInfo) that EPA and authorized states use to track generators and for planning purposes (e.g., to decide which generators should be inspected each federal fiscal year).
Although CT DEEP supports EPA's proposal in concept, we are very concerned about the potential increased administrative burden that this proposal could have on authorized states, such as Connecticut, that may be responsible for entering and maintaining this data, especially as it relates to SQGs. CT DEEP is less concerned about re-notification by LQGs, since that already pretty much occurs through the biennial report process. However, Connecticut currently has about 1,500 SQGs in the state and very limited resources to process that volume of notifications  -  even on the proposed biennial basis, and even if a way were developed such that SQGs could submit these re-notifications electronically.

On the point of electronic re-notification, CT DEEP would note that although an on-line or electronic option would reduce data entry time, our experience is that there is often a need to follow up with the notifier to confirm that certain elements of the notification are correct and accurate. Allowing SQGs or any other generators to make unilateral unchecked changes to their notifications could at best compromise the integrity of the data in RCRAInfo, and at worst allow unscrupulous generators to attempt to remove themselves from the database.

CT DEEP would be much less concerned about the resource issue if the processing of the re-notifications was performed by EPA. However, even this scenario raises concerns in that CT DEEP would lose a certain amount of control over the data that could compromise its ability to obtain information about generators in Connecticut and appropriately select candidates for inspection. (0178)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. Therefore, the burden on the states is reduced considerably in the final rule relative to what the Agency proposed.
Regarding the QA/QC processes involved with electronic reporting, the Agency appreciates CT DEEP's efforts to collect and maintain high quality information. Similarly, processing re-notifications is a state requirement.
Comment: EPA proposes to require SQGs and LQGs to re-notify the agency of their hazardous waste management activities every two years. [Footnote 17: Currently LQGs must re-submit a notification every two years as part of the biennial reporting requirement. No similar requirement applies to SQGs.] IME supports the re-notification requirement as a means of ensuring that EPA has current and relevant information on reporting facilities. (0188)
Response: The Agency agrees with IME's comment regarding SQG re-notification as a means of ensuring that EPA has current and relevant information on reporting facilities. However, as stated above, in response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12.
Comment: A couple of States support the addition of a re-notification requirement for SQGs and LQGs, but would rather the SQG re-notifications occur on a different schedule from the biennial report. These States prefer SQGs to re-notify on the years opposite the biennial report and LQG notifications (i.e., SQGs re-notify by March 1 of odd numbered years). (0217)
Response: The Agency agrees with this comment and has responded by requiring SQG re-notification in years opposite the biennial report and LQG notifications.
Comment: The proposal for generators to re-notify and update information periodically has merit to the extent that limited additional data are requested as part of existing required reports such as LQGs' biennial reports. The re-notification and update requirement for LQGs could be fulfilled by the regulated entity's simply amending the form currently in use for biennial reporting. In cases where no reporting obligations currently exist, the cost-benefit of adding an additional requirement for SQGs does not seem to have the same potential merit. In fact, it seems that EPA and authorized states already have the requested information for both LQGs and SQGs in the form of hazardous waste manifests transmitted by the generators.

Furthermore, some regulated entities have numerous SQG sites with waste generation activities and corresponding EPA ID numbers. Therefore, it would be burdensome for such regulated entities to go through the exercise of re-informing EPA of their hazardous waste generator activities once every two years. The objective of this requirement may be best achieved if EPA or delegated states monitor the activity against the EPA ID numbers that it has issued. And for ID numbers that were inactive over the last two-year period, EPA or delegated states could request that the generator revalidate its waste generator activities and status. As an alternative, because EPA is seeking to identify changes in the initial reporting, the better alternative would be to require re-notification only in the event of a change to significant information such as a change in ownership or a change in generator status. (0257)
Response: The Agency disagrees with the above comments. The Agency concluded that the workload and costs to both the regulated community and the states would be less with a consensus-type approach every four years rather than an event-driven approach where SQGs might have to complete a re-notification form more frequently than once every four years. The Agency also felt that every four years was an appropriate time-period to require re-notification.
Comment: The proposed rule wants SQGs to re-notify in even-numbered years by February 1. The Expert Group supports a re-notification requirement for SQGs but believes biennially is too frequent for a national requirement. However, several states already have annual reporting or re-notification requirements for fee purposes. These existing requirements should be allowed to take precedence over a new rule requirement. For states without more stringent requirements, the Expert Group recommends instead that SQGs be required to re-notify every 4 years during odd-numbered years. (0125)
Response: The Agency agrees with the RCRA Expert Group and has finalized the rule to meet these comments.
Comment: Re-notification timetable should be the same for LQG and SQG (0154)

Response: The Agency disagrees with the above comment. In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. Therefore, the burden on the states is reduced considerably in the final rule relative to what the Agency proposed.
Comment: The department supports the proposed requirement for small and large quantity generators to re-notify every two years, although we would suggest that states be allowed to initially select the interval upon which each generator is required to re-notify, in order to avoid having all generators on the same renewal schedule. This will assist state staff with the distribution of workload as registration staff have many other duties. (0223)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. The Agency also agrees that SQG re-notification should occur in years alternating with the biennial report and later in the calendar year to account for states with annual reporting requirements; i.e., submitted by September 1st of each year in which re-notifications are required. Therefore, the burden on the states is reduced considerably in the final rule relative to what the Agency proposed. The Agency believes this approach should satisfy the demands identified in the above comments.
Comment: As for whether or not the re-notifying should be done on another time frame (i.e. every four years, only when a LQG or SQG has a change in ownership or generator category or anytime of the year) We believes the every two years approach would work best particularly since this time frame is the same as that for the biennial reports (0243)
Response: In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12. Both the Agency and commenters found two years was too short an interval between SQG re-notifications while two years is the requisite time period for biennial reporting.
Comment: Regular re-notification by SQGs. MU would support either the every-two-years or every-four-years proposed by the Agency. (0256)
Response:  In response to comments, the Agency is finalizing the requirement for SQGs to re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12.
Comment: TCEQ requests clarification if an annual reporting requirement is sufficient as a method of re-notification. If annual reporting is sufficient to meet re-notification requirements, the TCEQ prefers to have the re-notification year occur during the EPA's Biennial Reporting which will coincide that year's annual reporting to the TCEQ. (0112)
Response: Yes, annual reporting requirement is sufficient as a method of re-notification. If TCEQ has annual reporting requirements, then this rule will have no effect on their reporting/re-notification activities.
Comment: Requiring SQGs to re-notify EPA of their generator information every other year will provide valuable, up-to-date information. However, many states are already collecting this information, and EPA should explore the possibility of collaborating with the states regarding this information (0235)
Response: States may always be more stringent than the federal program and require more frequent reporting and re-notification requirements. In such cases, this rule will have no effect on their existing requirements.

Against SQG Re-Notification
The following commenters were against the proposed provision: 0257, 0220, 0262, 0085, 0168, 0097, 0089, 0195, 0189, 0200, 0206, 0212, 0224, 0240, 0253, 0283, 0152, 0182, 0219, 0077, 0099, 0133, 0217, 0240, 0131.
Comment: Proposed periodic re-notification- We do not support this proposal. The current requirement is Sufficient (0220)
Response: The Agency disagrees with the above comment. Because SQGs need only notify once, and that is primarily to obtain RCRA ID so that they can ship hazardous waste off-site to a RCRA permitted TSDF, there is no assurance that the information collected in EPA's and the states' databases over time will accurately reflect which facilities are generating hazardous waste, and what might have changed over time. This lack of a re-notification requirement, especially for SQGs at the federal level, greatly impairs EPA's and the states' ability to use the information for compliance monitoring and programmatic purposes.  Therefore, the Agency has concluded, based on comments received that SQGs must re-notify EPA (or an authorized state program) beginning in 2021 and every four years thereafter using EPA Form 8700 - 12.
Comment: ACA understands EPA's stated goal of having up to date information so that EPA does not waste its time and resources monitoring compliance at entities that are no longer generating hazardous waste. However, these concerns about outdated information can more easily be corrected using the agency soon to be implemented E-manifest and online database. [Footnote 18: Hazardous Waste Management System; Modifications of the Hazardous Waste Manifest System; Electronic Manifest; Final Rule FR Vol. 79 No. 26.] This databased is required to be updated with information from each hazardous waste manifest that is used and would contain the necessary information (for example, generator ID) for the agency to satisfy its concerns. (0262)
Response: With respect to using manifest data, currently manifest data is owned by the states and not required to be sent EPA. This is changing with the e-Manifest system under development, in that the e-manifest data will be available to EPA and the states. However, as the system is being designed, specifications do not include a generator category data element, nor is including this data element possible without a regulatory change. However, the Agency will continue to investigate the feasibility of using e-Manifest data to identify active SQGs and LQGs.

Comment: Requiring SQG/LQG Re-notification Requiring SQGs to re-notify every two years if they have not done so otherwise through an alternative process.

DTSC opposes the amendment to 40 CFR 262.18(c)(i). DTSC already uses an annual or biennial electronic verification questionnaire system to update information associated with hazardous waste identification numbers issued to all generators in CA. However, DTSC only collects about eight to ten areas of information on the form and does so electronically. Requiring DTSC to re-process 8700-12 forms for all SQGs would result in a new workload that is simply not absorbable with current state resources. Therefore, DTSC opposes this requirement and would rather discuss with EPA how it could achieve this objective through streamlined electronic submission systems thereby minimizing the workload burden on both generators and state regulators. In the alternative, DTSC supports the updates occurring in years opposite the biennial reports (i.e., in TSDF reporting years) and/or in four year or even six year increments. (0174)
Response: SQG re-notification will occur every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting. Since DSTC has an annual re-notification process, EPA's rule will not interfere with this frequency. However, EPA will need to better understand the differences between DSTC's notification form and EPA's form to ascertain differences and similarities to ensure consistent reporting of important information.
Comment: DTSC supports LQGs re-notifying through the Biennial Report. DTSC believes the SQG re-notification should not be as important as the LQG re-notification, supporting a reduced frequency for SQG re-notifications. (0174)
Response: LQGs will continue to re-notify through the Biennial Report. Similarly, as stated above, SQG re-notifications will occur every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting.
Comment: Re-notification  -  States should be allowed time to implement EPA's electronic submittal process prior to implementing such an onerous paperwork requirement. (0214)
Response: States will have an opportunity to implement EPA's electronic submittal process since SQG re-notification will not begin until 2021.

Comment: Colorado does not agree with this proposal. After speaking with our administrative staff, the enormity of this type of paperwork requirement seems overly burdensome to the states with little value to be gained. Colorado already requires LQGs, SQGs and some CESQGs to re-notify whenever the generator status, location and/or general description of activities at their facilities change. We do not require re-notification solely for changes in the identified or listed wastes handled by such person. We find that this "happy medium" between an annual/biennial re-notification requirement and no re-notification requirements at all, works well. One thing we might consider is adding a requirement to re-notify when the waste streams at the facility change, but this would have to be thoroughly thought through to ensure that the added benefit of having this type of information would justify the additional paperwork burden to facilities. (0085)
Response: The Agency disagrees with the above comments regarding "little value to be gained" by this proposal. Unlike Colorado, many states do not have either annual re-notification requirements or "event" driven mechanisms to require SQGs to re-notify. As a result, these states are unable to have a good understanding of their SQG universe and provide program oversight effectively and efficiently for protection of human health and the environment. The Agency believes requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting is a good compromise considering the needs of both the regulated industry and the states. Similarly, the Agency defers to those states with more frequent re-notification requirements that are census driven rather than "event" driven. One option the Agency will explore with Colorado and other states with event driven re-notifications is to determine if event-driven/census approach can be developed to capture all SQGs every four years to derive a reliable estimate of their SQG universe.
Comment: This is an unnecessarily redundant and burdensome requirement, as this same information can be gleaned from existing records (such as biennial reporting) and existing state inspections. It is requested that this requirement be removed from the final regulation. (0089)

Response: The Agency disagrees with the above comment. Requiring SQGs to re-notify every four years beginning in 2021 is neither redundant with existing reporting requirements nor burdensome considering the form should be able to be completed in a short period of time, particularly if a state uses EPA's electronic version of Form 8700-12.

Comment: I recognize the desire/need to do so. But, there should be a better way to do this than generation of an additional 50,000 documents every two years.

Consider:

o Using biennial reports to verify the status for LQG's.

o Mine the data for the half of the states which already collect this information in some form.

o For those EPA ID's which remain unresolved through the above mail a notification to the address on the most current registration with directions to a web site/data base where they can confirm or update their information.

o EPA ID' s not kept active by the above could be removed from the system.

- If EPA goes ahead with this requirement, please make both SQG and LQG reports have the same suspense. OR

- Just establish a data base for all generators to confirm their status.  (0097)
Response: First, those states with more frequent SQG re-notification processes will not be affected by this rule. Second, for the remaining states, they will have to conduct outreach (i.e., possibly mail their SQGs a reminder) to complete Form 8700-12 when required every four years. Third, such a system will enable states to remove SQGs from their universe if they find them inactive or no longer in operation. Fourth, based on comments, the Agency believes requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting is a good compromise considering the needs of both the regulated industry and the states.

Comment: Although the Retail Associations appreciate EPA's desire to have more current information on the universe of hazardous waste generators, in light of the large size and dynamic nature of the retail sector, we urge the Agency to limit the periodic re-notification requirement for retailers, and to provide a streamlined process for large retail chains (e.g., allowing a consolidated update that identifies only key changes). (0168)

Response: The Agency believes requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting is a good compromise considering the needs of both the regulated industry and the states. To the extent a streamlined process for large retail chains can be accommodated, retailers will need to work with individual states since the re-notification process will be implemented by each state.

Comment: The Retail Associations understand EPA's desire for more up-to-date information on the universe of regulated generators. However, we are concerned that the options being considered by the Agency may unnecessarily burden the retail sector without providing any proportionate benefit. Periodic re-notification poses a particular challenge to retailers, since some retail companies have hundreds or even thousands of stores. Under the existing regulations, the status of these facilities may change with considerable frequency. While EPA's proposal with respect to episodic generators may help address this issue to some degree, as discussed in Section 5.5 above, the proposal does not get to the core reason for the frequency with which the status of a retail facility may change. Accordingly, we recommend that EPA require re-notification once every four years and allow companies with a large number of facilities to provide updated information in a consolidated format that only identifies key changes, such as facilities that have closed or changed generator status. (0168)

Response: The Agency agrees with this commenter on the frequency of SQG re-notifications and has adopted a four year re-notification process beginning in 2021. As stated in the previous response, to the extent a streamlined process for large retail chains can be accommodated, retailers will need to work with individual states since the re-notification process will be state-by-state driven.

Comment: P. 57947 / Section 3  -  Periodic Re-Notification: This new requirement is not anticipated to impact or burden our University, but it appears to have the potential to unnecessarily burden other institutions. (0172)

Response: The Agency is requiring SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting. The Agency believes this approach is a good compromise considering the needs of both the regulated industry and the states.

Comment: Due to Idaho DEQ's existing annual reporting requirement for LQGs and SQGs, we are able to maintain fairly accurate data on our SQG and LQG universes. Idaho DEQ is not in agreement with the proposed rule to require SQGs to re-notify in even-numbered years by February 1. This date would place an additional unnecessary burden on already stressed State resources because the date is too close to our existing reporting requirement date of January 31 of every year. (0189)

The addition of this re-notification will cause potential confusion, problems, and delays from our SQG regulated community as well as unnecessarily increase potential enforcement activity as a result. Idaho DEQ would like to see language added to the rule that would allow states with existing annual reporting or re-notification requirements for fee purposes use those existing requirements to meet a re-notification regulatory requirement. (0189)

Response: States with more frequent reporting requirements, or less than every four years beginning in 2021 will not be affected by this rule.

Comment: However, Idaho DEQ does believe a re-notification requirement should have always been a part of the RCRA HW regulations and would rather the requirement be for any site required to have an EPA ID Number re-notify under the following conditions:
:: Site Name Change
:: Owner/Operator Change
:: Site Contact Change
:: Generator Status or other Regulated Activity Change

Response: In evaluating the comments received, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach

Comment: Idaho DEQ understands a number of states do not have any kind of existing reporting, fee, or re-notification requirement and would likely benefit from at least a regular, established re-notification process. However, we believe the 2-year time frame proposed in the rule is too frequent and burdensome for tight state resources and should not occur during the even numbered biennial reporting (BR) years. We recommend instead that SQGs be required to re-notify every 4 years during odd-numbered years in a month between April and September. The January to March time frame is too close to the time of annual report processing and the October to December time frame potentially impacts the BR process.
LQGs should continue to re-notify by filing BR in even-numbered years since existing LQGs are already used to this requirement. BR filers are supposed to indicate their current status at the time of filing the BR, which helps weed out one-time LQGs and keep that universe current and accurate. (0189)

Response: The Agency agrees with Idaho DEQ's comment and will require SQG re-notification every four years beginning in 2021 using form 8700-12 and in years opposite biennial reporting. Similarly, SQGs will have until September 1[st] to re-notify.

Comment: SD does not support the proposed requirement that SQGs re-notify of their hazardous waste activity. Although the state concurs with EPA that accurate generator information is desirable, the work-load required to implement the SQG re-notification effort would not merit the data outcome. It is the state's experience that SQG entities are frequently episodic in their generation rate, and a re-notification effort would not provide us with enough new information to make it worth the time to collect it. The state considered EPA's proposal in allowing SQGs to re-notify on a rolling, every two-year cycle. This provision might be better, but tracking the notification due dates would be very burdensome to the state. (0195)

Response: The Agency disagrees with the above comments in that the effort would not merit the data outcome. Having a reliable data base of their SQG universe to conduct inspections and other program oversight activities to ensure protection of human health and the environment should outweigh the burden of requiring their SQGs to re-notify every four years.

Comment: Requiring SQGs to re-submit every two years, regardless of whether information has changed, creates unnecessary reporting for the regulated community and processing for the regulators. NMA prefers the alternative approach offered by the agency that would require re-notification upon a major change. Limiting re-notification to major status changes, appropriately balances the need for accurate information necessary for compliance monitoring or other important programmatic purposes with the paperwork burden imposed on the regulated community, which involves substantial costs in staff time and other resources for compliance. (0200)

Response: In evaluating the comments received from both industry and the states, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach in requiring SQGs to re-notify.

Comment: EPA is proposing that both LQGs and SQGs re-notify EPA using the Site ID form (EPA form 8700-12) when facility information changes and/or to require SQGs to file a biennial report  -  The intent of this re-notification provision is to provide basic information to the regulatory agencies about who is generating and managing hazardous waste. The current notification process provides no assurance that the information collected in EPA's and the states' databases over time will accurately reflect which facilities are generating hazardous waste. Because of the lack of integrity in the data, EPA and states must spend limited resources to `clean up' the data.

EPA's proposed rule will ensure the integrity and accuracy of the WDNR's databases. Requiring facilities to re-notify when facility information changes is an additional requirement over current rules. However, the impact on sources is limited because the fillable PDF notification form can be completed and submitted in under an hour. WDNR requests EPA require re-notification within timely fashion such as 30-days when a facility changes their generator status and/or regulated activity, facility name, contact person, ownership. (0206)

Response: In evaluating the comments received from both industry and the states, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach in requiring SQGs to re-notify.

Comment: Requiring all SQGs and LQGs to re-notify EPA every other year is unnecessary. With the pending implementation of the e-manifest system, EPA will have ample data on all hazardous waste generators. There is no need to require re-notification. (0212)
Response: EPA disagrees with commenter's comment that there is no need to require re-notification. EPA believes that having a reliable data base of the SQG universe to conduct inspections and other program oversight activities is necessary to ensure protection of human health and the environment. In evaluating the comments received from both industry and the states, the Agency concluded that a 4 year census approach was a more cost-effective approach than an event-driven approach in requiring SQGs to re-notify. Similarly, E-manifest system will not be able to identify the generator category of the facility completing the manifest document.

Comment: Re-notification is unnecessary as facilities already provide notice as part of the biennial reporting, and otherwise have incentive to let the Agency know when their generator status changes or when the property ownership changes. For example, RCRA identification follows the property. Therefore, when a property changes hands, the former owner has incentive to inform EPA that it no longer has RCRA activities at a given property.
EPA's main cited reason for requesting this is the agency's inability to maintain a "clean" database. See 80 Fed. Reg. 57947. This problem is an administrative issue for the EPA and the state agencies to resolve. They should not simply shift this burden to the regulated entities, which could in turn be actually replacing one administrative burden on the agencies with another. (0224)
Response: The Agency disagrees with the above comments. The problem is not simply shifting administrative burdens or inadequate coordination between EPA regional offices and authorized states. The issue is a lack of accurate and important up-to-date information to manage the RCRA program effectively to protect human health and the environment.

Comment: FPA Strongly Objects to the Requirement for all SQGs and LQGs to Reassess and Re-Notify EPA or the States Every Two Years, on the Grounds of Cost and Necessity.

However, it is far from clear to FPA that requiring re-notifications or reassessments of waste streams every two years solves the problems EPA identifies in the NPRM and/or justifies the proposed new requirement. Yes, if the generator does not "re-notify," an inspector may be able to more easily identify the need for a trip to see if the facility is "still on the map." But that does not resolve the fundamental issue that over 30% of facilities never assessed their waste properly in the first place and also failed to notify the agency of the waste activity. EPA has not explained how the proposed solution -- re-notification/reassessment every two years -- solves either of these problems. The proposal merely appears to simply create another paperwork enforcement issue, when the real problem is the generation of hazardous waste without a RCRA permit or meeting enforceable RCRA standards and/or conditions for exemption by facilities already complying with the law's requirements.

Response: Generators making an accurate waste determination is an issue independent of SQG notification/re-notification unless the generator is a CESQG/VSQG. If the generator is a CESQG/VSQG, and it failed to make an accurate waste determination, then the generator could possibly be either an SQG or LQG if the total quantity of hazardous waste generated exceeded 100 kilograms in a calendar month, in which case the CESQG/VSQG would need to notify their authorized state or EPA and comply with the applicable requirements. By notifying their state or EPA, then proper environmental oversight can occur including whether they maintain their generator category, change ownership, emergency coordinator, wastes generated, etc.

Comment: b. The proposed biennial reporting requirement is highly unreasonable if it also requires reassessment of waste streams.

Requiring waste stream assessments every two years would be unreasonable. Since LQGs must already address the most significant potential changes in waste streams when they change or add new facility processes in their biennial reports, the added benefit of addressing all waste streams seems to pale in comparison to the added costs. (EPA proposes in this rulemaking to also require SQGs to file these reports.) The proposed requirement would be particularly challenging for small conditionally exempt generators that generally do not have on-site environmental compliance officers. We believe EPA should remove the requirement or clarify that by requiring SQGs and LQGs to resubmit FORM 12-8700 every two years, that the agency is not requiring re-assessment of all waste streams every two years. (0240)
Response: First, in response to comments, the Agency is requiring SQGs to re-notify every four years beginning in 202 using form 8700-12.  Second, by requiring SQGs to re-notify every four years, generators will need to identify all of the hazardous wastes they generate which should be a process they are conducting all along since they must comply with 40 CFR 262.11. In other words, there is nothing new here other than documenting the hazardous wastes they already generate.
Comment: If the Agency is intending to require SQGs and LQGs to reassess their waste streams every two years, EPA should not finalize this proposal. Instead EPA should constitute a Task Force and issue a Notice of Supplemental Rulemaking to identify more manageable solutions to address the failure of generators to characterize their wastes properly or at all.

FPA urges EPA not to finalize the proposed reassessment requirement. Large Generators already report the information to EPA in their biennial report and should not be subject to re-notification requirements. There may be other solutions for small generators. However, to address the issue that many generators have not even self-identified is a tougher problem. We recommend that EPA convene as soon as possible a small Task Force to help it address this issue. There may be a way to more easily identify these culprits and assist them in assessing their waste streams which will benefit the public and the environment by identifying other permits or industry activities. Other alternatives besides biennial waste re-assessments also should be considered. For instance, for small generators, a postcard notification may be enough to confirm they are still in business. We are confident that there are other solutions that fit the problem EPA is seeking to address other than the one proposed. (0240)

Response: The Agency agrees with the above comments with respect to waste determinations being a problem for generators. We believe one possible solution is to ensure generators have the necessary processes and procedures in place to make accurate waste determinations and would like to enter into a dialogue with the regulated industry to further discuss this issue.

Regarding the need for SQGs to re-notify, the Agency believes SQGs re-notifying every four years using form 8700-12 is a reasonable compromise to resolving an important problem confronted by both EPA and the states; i.e., to have an accurate and reliable understanding of their SQG universe in order to ensure protection of human health and the environment.

Comment: While FPA is not concerned about the requirement to "re-notify" EPA and the States every two years using FORM 8700-12 of the continued existence of the regulated facility and its status as a conditionally exempt generator, the association does object to the inherent requirement in FORM 8700-12 to update the assessment of all waste streams at the site every two years. Id. at 57,948/1 ("re-notification would require a complete submittal of all information included in the Site ID form). If this was not EPA's intent, the agency should clearly state so in the final rulemaking. (0240)

Response: The Agency disagrees with the above comment. By requiring SQGs to re-notify every four years, generators will need to identify all of the hazardous wastes they generate which should be a process they are conducting all along since they must comply with 40 CFR 262.11. In other words, there is nothing new here other than documenting the hazardous wastes they already generate.
Comment: NADA objects to any new mandate for the periodic re-notification of one's hazardous waste generator status, but does support provision for optional re-notification triggered by the occurrence of a fundamental change in the information first reported. Such occurrences may include changes in site ownership, site closure, long-term generator category changes, changes in wastes generated, and new on-site recycling activities. (0253)

Response: The Agency is requiring SQGs to re-notify every four years beginning in 202 using Form 8700-12. In the course of reviewing comments, the Agency realized a more cost-effective approach was for EPA and the states to conduct a census approach where all re-notifications could be addressed over a short period of time rather than having re-notifications come in periodically with no guarantee that resources would be available to review and upload the form.

Comment: In this rule, the EPA has proposed requiring SQGs and LQGs to resubmit Form 8700-12 at least once every two years. The ATA opposes this proposal as an unnecessary and burdensome requirement. Many states already require LQGs and SQGs to submit annual or biannual reports that include updated site and operator information in addition to waste generation information. (0283).

Response: This rule will not affect those states with more stringent or more frequent re-notification processes, which we believe to be about half the states. Similarly, in an effort to respond to industry and state comments, the Agency is requiring SQGs to re-notify every four years beginning in 2021 using Form 8700-12 in years opposite biennial report submissions.
Comment: EPA should not add additional and unnecessary reporting requirements on Small Quantity Generators (SQGs) and LQGs. (0283)
Response: The Agency disagrees with this comment as being unnecessary. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment.
Comment: Mandatory biennial notification by SQGs, even if their generator status or facility information have not changed, is a waste of time and effort for both the SQG and the EPA or state/tribal agency. (0152)

Response: In light of these and other comments, the Agency is requiring SQGs to re-notify every four years beginning in 2021 using Form 8700-12 in years opposite biennial report submissions. Nor does the Agency agree with SQG re-notification being a waste of time and effort. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment.
Comment: Although DEQ strongly agrees with the EPA's opinion that there are a large number of facilities that do not have up-to-date information, the state of Oklahoma maintains up-to-date information of its LQGs and SQGs for billing purposes. Those LQGs and SQGs that no longer pay fees are inspected and their information updated in RCRAinfo. Therefore, DEQ has internal policies in place to prevent our SQG and LQG universe from being outdated. For these reasons, it is DEQ's opinion that additional re-notification requirements for SQGs and LQGs will create an undue burden for both the state and the regulated facilities.

DEQ is of the opinion that the proposed requirement for LQGs and SQGs to re-notify every two years is excessive. DEQ believes facilities should only be required to re-notify when information included in the 8700-12 form is changed, e.g. the owner/operator changes, or the generator status changes. In the event that the EPA does require facilities to re-notify on a specific schedule, this time period should be only on odd-numbered years (i.e. not during months in which biennial reporting occurs), in order to lower the total quantity of work placed on the state at any one time. (0182)
Response: In light of these and other comments, the Agency is requiring SQGs to re-notify every four years beginning in 2021 using Form 8700-12 in years opposite biennial report submissions.
Comment: Most states receive as part of the biennial or annual report the information EPA says it needs to obtain from SQGs and LQGs. In addition, current Form 8700-12 states in its Instructions that subsequent notification should be submitted for various changes that occur, which include a change in site contact, site ownership RCRA activity levels (VSQG, SQG, LQG, TSD, etc.), and for other reasons. See page 4 of instructions to EPA Form 8700-12. Therefore, it is not clear why EPA needs to impose a new regulation requiring re-notification when it should already have, or should be able to obtain from authorized states, the information EPA says it needs. If the problem is inadequate coordination between EPA regional offices and authorized states, that problem should be resolved directly between EPA and its authorized states, rather than EPA placing a new and largely redundant burden on generators. (0219)
Response: The Agency and the states rarely, if ever, receive such notifications the commenter is referring to because SQGs are not required to submit such information under the regulations. The form instructions are not a requirement in and of themselves.  Should a facility wish to update its information, they can submit a subsequent notification and as the commenter notes, the form instructions request as much. Also, whereas LQGs provide this information every two years as part of their Biennial Report submission, there is no subsequent re-notification by SQGs required once they receive a RCRA ID.

As a result, without the 4 year SQG re-notification requirement, and few facilities providing subsequent notification information, EPA and the state's data has become inaccurate over time.  Some of the SQG notifications in our database from the 1980's are still in business, but many are not.  Some states are more stringent than the federal regulations and require SQGs to re-notify in their state, but that information is not collected by all 50 states. EPA has attempted to crosswalk the existing data from the Waste Received (WR) forms submitted by TSDFs back to the generators to determine what generator status the sending generator was.  However this information can only provide a rough estimate.

The Agency notes that we did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.

The Agency concluded in developing this rule that the only way to obtain more accurate and up-to-date information that the Agency and the states need is for SQGs to re-notify every four years.

Regarding the comment:

		If the problem is inadequate coordination between EPA regional
		offices and authorized states, that problem should be resolved
		directly between EPA and its authorized states, rather than EPA
		placing a new and largely redundant burden on generators.

The problem is not inadequate coordination between EPA regional offices and authorized states. The issue is a lack of accurate and important up-to-date information to manage the RCRA program effectively for protection of human health and the environment.

Comment: EPA is proposing to require all SQGs and LQGs to re-notify EPA and to do so every other year (proposed 40 CFR 262.128). API does not believe such re-notification is necessary. With the impending implementation of the e-Manifest system, EPA will have national data on hazardous generators and virtually real-time information on locations where hazardous waste is being generated. This should eliminate the need for additional and perpetual re-notification. Requiring all hazardous waste generators to provide the proposed re-notification is redundant and unnecessary. (0077)

Response: With respect to using manifest data, currently manifest data is owned by the states and not required to be sent EPA. This is changing with the e-Manifest system under development, in that the e-manifest data will be available to EPA and the states. However, as the system is being designed, specifications do not include a generator category data element, nor is including this data element possible without a regulatory change. However, the Agency will continue to investigate the feasibility of using e-Manifest data to identify active SQGs and LQGs.

Similarly, both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment.
Comment: Requiring LQG and SQG facilities to re-notify, regardless of the interval, appears to be unnecessary. Facilities re-notify every time they communicate with the agency and reference their EPA ID number. For example, facilities required to file a Biennial Report are instructed to file a Site ID form (formally form IC), which is basically the same as filing EPA form 8700-12. (0099)
Response: The Agency disagrees with the above comment. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities (e.g., inspections and compliance monitoring) to ensure the protection of human health and the environment. This rule will not change the frequency of biennial reporting requirements for LQGs. However, there is no requirement for SQGs to re-notify when an important change occurs, other than when they move locations and must obtain a new RCRA ID. Hence the need to require SQGs to re-notify every four years beginning in 2021.
Comment: EPA proposes to require small and large quantity generators to submit a re-notification of Subtitle C Activities by February 1 (SQG) or March 1 (LQG), on a biennial basis. Existing §262.12 is silent regarding re-notification, but the existing rule at §260.42 requires for biennial re-notification of certain hazardous secondary material management activities. Published EPA Instructions for Form 8700-12 (pgs. 4-5) state that a re-notification should be submitted:

- If the contact for your site changes
- If the ownership of your site changes
- If an additional owner has been added or replaced since you submitted your last notification
- If the type of RCRA Subtitle C activity you conduct changes
- If you are opting into or withdrawing from Subpart K laboratory management rules

Authorized states vary in their re-notification requirements, but generators in many states are submitting re-notifications more frequently than biennially, based on the EPA Instruction or state rules/guidance. We suggest that, rather than imposing a fixed biennial re-notification that will duplicate re-notifications submitted at other times, that EPA place the re-notification triggers from the EPA Instructions (above) into the rule itself. The preamble notes that large numbers of SQGs have not re-notified for many years. This is unsurprising, since the criteria for re-notification are found only in a 58-page EPA Instruction that a generator would have no reason to read, unless the generator was already preparing to file Form 8700-12. (0133)
Response: The Agency and the states rarely, if ever, receive such notifications the commenter is referring to because SQGs are not required to submit such information under the regulations. The form instructions are not a requirement in and of themselves.  Should a facility wish to update its information, they can submit a subsequent notification and as the commenter notes, the form instructions request as much. Also, whereas LQGs provide this information every two years as part of their Biennial Report submission, there is no subsequent re-notification by SQGs required once they receive a RCRA ID.

The Agency notes that we did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.

Comment: This State also believes the proposed requirement for LQGs and SQGs to re-notify every two years is excessive and, in the event that the EPA does require facilities to re-notify, the facilities should only be required to re-notify in the event that information that would be included in the 8700-12 form changes (e.g., the owner/operator changes, or the generator status changes). (0217)
Response: The Agency did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.

Comment: The proposed reassessments on a two-year interval (and the associated record-keeping requirements that EPA proposes, which are specifically discussed below) are unreasonable and unnecessary for most manufacturing processes. FPA finds that EPA's arguments that the proposed re-characterization requirements would come at a "minimal cost" are simply baseless. In the manufacturing sector, environmental managers do not have the resources to continuously make waste determinations and there is no reason to do so for product lines, even if they are "tweaked" to improve the attributes of these product lines (e.g., shelf-life, shelf-space, artwork, shipping attributes, etc.), because they are made from the same chemicals using the same processes over the lifetime of printing lines. Therefore instead of requiring assessments of waste streams every two years, FPA suggests that a more reasonable interval if this re-assessment requirement is applicable to conditionally exempt generators would be every ten years, preceded by an EPA Federal Register notification of their due date (0240)
Response: The Agency disagrees with the above comments. First, in response to the comment, "In the manufacturing sector, environmental managers do not have the resources to continuously make waste determinations and there is no reason to do so for product lines, even if they are "tweaked" to improve the attributes of these product lines (e.g., shelf-life, shelf-space, artwork, shipping attributes, etc.), because they are made from the same chemicals using the same processes over the lifetime of printing lines" generators have the existing requirement at 40 CFR 262.11 to make a solid and hazardous waste determination at the point of generation and to be aware of any changes in the waste do to environmental exposures or simply the nature of the waste. Whether they choose to make a new waste determination as a result of shelf-life, shelf-space, artwork, shipping attributes, etc. is their decision and also responsibility should a solid waste be found to be a hazardous waste.
Regarding the comment about conditionally exempt generators (i.e., CESQGs/VSQGs), they have an obligation to make an accurate solid and hazardous waste determinations just like SQGs and LQGs. However, they have no reporting and recordkeeping requirements under this rule.

Other Comments
Comment: The Agency seeks comment on its proposed change to require periodic notification (e.g., every two years) for SQGs or LQGs or an alternative, such as to re-notify only in the event of a change to certain information, such as (1) change in ownership and (2) change in generator category. The Savannah River Site (SRS) is an LQG and a permitted TSDF owned by the Department of Energy. The first TSDF permit was issued to the site in 1987. The permit is approximately 14 volumes, representing the various facilities included in the permit. The notification and various volumes are revised as necessary. Some of the volumes have been revised twenty-five times over the past twenty-eight years. In addition to the permit revisions, the South Carolina hazardous waste management regulations require quarterly reports on the hazardous waste generated, stored and shipped off-site. The State of South Carolina is very well aware of the hazardous waste management activities at SRS. Requiring a re-notification every two years for this site would be an unnecessary exercise for the site and for the state. It would be much more reasonable to require re-notification if the ownership changed, which is unlikely, or if the generator category changed. (0092)
Response: States may be more stringent than the federal program regarding RCRA regulations, including re-notification and reporting requirements. The Agency did consider requiring SQGs to re-notify when several events, such as those cited above occurred, but concluded that the burden on both industry and the states would be greater than requiring them to re-notify once every four years. We also proposed that re-notification occur every two years, just like with biennial report submissions, but in response to both industry and state burden concerns, reduced the frequency to every four years.
Comment: If the agency does pursue re-notification, please make the compliance dates and time interval the same for LQG and SQG facilities. Creating a tiered compliance structure creates confusion, especially for organizations that operate multiple facilities with different generator status. (0099 and 0101)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions.
Comment: Re-notification required of SQGs and LQGs (authorized states would be required to adopt this change)

LQGs would re-notify by filing a Biennial Report (BR) in even-numbered years. The Expert Group believes this is adequate since existing LQGs are already used to this requirement and generators are supposed to indicate their current status at the time of filing the BR, which helps weed out one-time LQGs and keep the LQG universe current and accurate. (0125)
Response: The Agency agrees with these comments.

Comment: While we agree there is an inherent benefit to requiring re-notification for greater data integrity, the administrative burden to collect and maintain this information in RCRAInfo may be too significant. Requiring an LQG to re-notify as part of the biennial reporting cycle will reduce the regulatory burden for the LQG; however, for SQGs the regulatory burden is likely excessive. Perhaps the Agency could consider conducting a pilot study of SQG re-notification before moving forward with an actual regulation. (0185)
Response: The Agency sees no need for conducting a pilot study. Both EPA and the states have an important need to understand the generator universes in their jurisdictions so as to conduct the necessary programmatic activities to ensure the protection of human health and the environment. This rule will not change the frequency of biennial reporting requirements for LQGs. However, there is no requirement for SQGs to re-notify when an important change occurs, other than when they move locations and must obtain a new RCRA ID. Based on comments received, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions
Comment: The proposed regulations require biennial re-notification of SQG's using EPA Form 8700-12. Many large research Universities have numerous SQG locations. Completing the Form 8700-12 (four or five page form) for 10 or 20 locations creates unnecessary work for both waste generators and state agencies that receive and monitor this information. A more streamlined approach for collecting this data could be for owners to provide a biennial inventory of waste generating locations under their ownership. This inventory would provide the desired facility information to the appropriate regulators, while eliminating undue burden on generators. (0187)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions.

Comment: Clean Harbors generally supports EPA's modification of the rule, however, we are concerned about the requirement to have LQG's report all hazardous waste generated in a calendar year, even if it is managed (disposed) the following year. This provision is very complicated given that counting the manifested shipments within the calendar year is how almost all generators, and vendors like CH that prepare the biennial reports for our customers, account for the generated HW that has been managed. Generators with very large facilities may not realize that a specific production process has generated waste close to the end of the year, especially if it is being accumulated close to the production process, unless it is brought or sent to a central waste management area. This provision is very unworkable and burdensome to the generators. (0243)

Response: The Agency agrees with this commenter. Based on a review and analysis of comments, the Agency has decided to maintain the status quo because, in retrospect, we believe the outcome will remain the same in terms of obtaining a reliable estimate on the amount of hazardous waste generated annually by LQGs.

Comment: EPA must ensure that the all of the re-notification information is indeed available and accessible to the public via an improved RCRAInfo website or a new centralized website, and see that the site is updated consistently to reflect the latest facility information. Moreover, for the same reasons discussed above, the biennial notification requirement must also be applied to CESQGs. (0264)

Response: The Agency agrees with this comment and will continue to update RCRAInfo to reflect the latest facility information.

Section 4.3.1 - Need for revisions

Comment: As noted by EPA in the preamble, LQGs are currently required to submit biennial reports. Therefore, an additional re-notification requirement is superfluous and entirely unnecessary for LQGs. (0201)
Response: The Agency agrees with this comment and has been clarified in the final rule.
Comment: The proposed requirement for biennial re-notification is neither necessary nor does it provide for greater compliance or environmental improvement. Filing a biennial report already has the net effect of providing notification to EPA of the generators activities and status. This requirement is both unnecessary and does not provide for substantive improvement in either compliance or environmentally sound waste management. (0205)
Response: The Agency has clarified in the final rule that there is no change to biennial reporting. The Agency agrees that filing a biennial report already has the net effect of providing notification to EPA of the generators activities and status.

Section 4.3.2 - Re-notification every two years

All comments organized to this section of the comment outline are addressed under Issue 4.3.

Section <IP_ADDRESS> - Re-notification interval

All comments organized to this section of the comment outline are addressed under Issue 4.3.

Section <IP_ADDRESS> - Re-notification date

Comment: We prefer SQGs to re-notify on the years opposite the biennial report and LQG notifications (i.e., SQGs re-notify by March 1 of odd numbered years). Because of the administrative burden of processing re-notifications, it would be easier if the SQG re-notifications occurred on a different schedule from the biennial report. (0082)
Response: The Agency agrees with the above comment and has finalized the rule for SQG re-notifications to occur in years opposite the BR.
Comment: EPA proposes that LQGs and SQGs re-notify EPA and the states of their generator status on a regular basis. DTE Energy opposes this proposal as an unnecessary administrative burden without commensurate environmental benefit. Michigan already provides an annual opportunity to update generator status while determining hazardous waste user fees. Notification should only be required for permanent change of generator status or change of ownership. (0098)
Response: States with more frequent reporting requirements are not affected by this rule.
Comment: .... and the notification period should be extended from 30 to 90 days; (0093)

Response: The Agency believes 30 days is a sufficient amount of time to re-notify EPA or the state if there is a change in the owner or operator, and particularly if the SQG re-notification process has just occurred. However, as finalized, the new owner will not have to notify EPA or the authorized state until required to every four years beginning in 2021.
Comment: To allow states ample processing time, we recommend a fixed first of the month date be selected from between April and September. The January to March time frame is too close to the time of annual report processing for those states with annual reporting requirements and the October to December time frame potentially impacts the BR process. (0125)
Response: The Agency agrees with this comment and has modified this provision to allow states up to September 1 to receive SQG re-notifications in the reporting year.
Comment: If EPA chooses to require SQGs to re-notify every even numbered year, Dow recommends making this requirement due at the same time as the LQG re-notification on March 1 of every even numbered year to reduce confusion. (0131)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions.