Response (78):  It is correct that a description of arrangements with local authorities (fire departments, police departments, etc.) already exists under current regulations insofar as contingency plan content is concerned; therefore, section 262.261(c) imposes no new requirements. EPA notes in the preamble and final rule language that arrangements may be made with an LEPC if it is determined to be the appropriate organization with which to make such arrangements. In developing these regulations, it was not the Agency's intent to require that LQGs submit duplicate information. For this reason, our final rule language at 40 CFR 262.256(b), as well as 40 CFR 262.16(b)(8)(vi)(B) for SQGs, is crafted so as to recognize that there are various means of confirming that arrangements actively exist (or were sought but were unable to be made) and to accord flexibility regarding where such documentation can be retained. We have modified preamble language in Section XI.C.2 to read "...EPA is revising proposed language to insert the phrase `in the operating record,' which would include the contingency plan, to provide additional flexibility regarding where such documentation can be retained." Additionally, EPA notes that preparation and use of a quick reference guide (this term has replaced "executive summary" in the proposed rule) under 40 CFR 262.262(b) is intended to allow more effective response to an incident at a facility.

Comment:  One commenter indicated that, while the LEPC may be receptive to receiving copies of contingency plans, this remains to be seen and that, in the commenter's experience, local fire/police departments and hospitals are not interested in receiving copies of these plans. The commenter strongly recommend that EPA consult with local agencies nationwide before continuing to make contingency plan submission a mandatory requirement. (78)

Response (78):  EPA did not propose any changes to the existing requirement that LQGs submit a contingency plan and continues to believe that submission of this document should remain a requirement. The Agency also notes that the majority of commenters believed that local emergency responders, such as fire/police departments and hospitals, should serve as the initial point-of-contact in terms of making arrangements under section 262.256, as opposed to LEPCs. Therefore, in addition to section 262.256, EPA has revised section 262.262(a) accordingly, while still allowing facilities the option to also involve LEPCs.

Comment:  In terms of proposed §262.16(b)(8)(vi)(A) describing how a SQG should make emergency arrangements if the Local Emergency Planning Committee ("LEPC") should "not respond," a commenter believed the phrase "not respond" does not make sense with the removal of the "attempt to make arrangements" language from this section. As a result, the commenter suggested that the phrase "not respond" should be replaced with "not respond to inquiries from the generator" (or similar wording) to clarify what the LEPC is not responding to (178).

Response (178):  Proposed 40 CFR 262.16(b)(8)(vi)(A), including paragraphs (A)(1) through (2), as well as 40 CFR 262.16(b)(8)(vi)(B), have been revised extensively in response to comments received such that language in the final rule addresses this commenter's concern.

Comment:  A commenter noted that EPA removed the words "as appropriate" from proposed §262.256(a) prior to the words "for the types and quantities of hazardous waste handled at the site" and inquired as to whether EPA intended to remove these two words.  The commenter further noted that these words appear in existing regulations at 40 CFR 265.37 and in the parallel language for SQGs in proposed §262.16(b)(8)(vi)(A). Therefore, the commenter believed that the words "as appropriate" should be reinserted into this section as this would make the sentence more readable and understandable by clarifying the purpose and intent of the required arrangements (178).

Response (178):  It was EPA's intent to remove the term "as appropriate," which appears in existing regulations (i.e., 40 CFR 265.37)  -  although not in proposed 40 CFR 262.16(b)(8)(vi)(A). Instead, the Agency included, in the proposal and final rule, the phrase "taking into account the types and quantities of hazardous waste handled at the facility" for both SQGs and LQGs at 40 CFR 262.16(b)(8)(vi)(A) and 40 CFR 262.256(a), respectively, to accomplish the same objective suggested by the commenter. EPA disagrees with the commenter that "as appropriate" is more readable and understandable.

Comment:  A commenter noted that the language in proposed §262.256(c) and §262.262(b) are inconsistent; specifically, the former section uses the phrase "local fire departments and other relevant emergency responders (e.g., police and hospitals)" whereas the latter section simply states "local emergency responders". The commenter believed that the former language should be used in both sections in order to clearly specify the emergency responders to which an LQG must send a copy of its contingency plan and the executive summary of its contingency plan (178).

Response (178):  Rather than 40 CFR 262.256(c), which did not exist in the proposed rule, EPA assumes that the commenter is actually referring to proposed 40 CFR 262.256(a), which includes the phrase "local fire departments and other relevant emergency responders (e.g., police and hospitals)" when discussing arrangements with local authorities. It is true that discussions regarding submission of a copy of the contingency plan executive summary (this term has been replaced by "quick reference guide" in the final rule) in proposed 40 CFR 262.262(b) simply mention "local emergency responders." Proposed 40 CFR 262.256(a) has been revised extensively in response to comments received such that language in the final rule is consistent with final language at 40 CFR 262.262(b), the latter of which was also revised extensively in response to comments received.

    Identifying local emergency planning committees as the primary contact [as opposed to other local authorities]

Comment:  This commenter did not think it necessary to establish a formal agreement with the LEPC for other than LQGs for accumulation units as this type of information is normally addressed by other compliance requirements with respect to the local serving fire department. (76)

Comment:  This commenter believed the requirement for SQGs to make independent emergency response arrangements with the LEPC and/or local emergency response providers is excessive, as there are likely to be numerous small and large quantity generators in most LEPC jurisdictions. (78)

Comment:  Regarding making arrangements with the LEPC, the commenter stated that, while it agreed for the most part with this proposal, it did not believe that LEPCs should be mandated as the first point of contact. In support of this belief, the commenter cited issues such as accessibility in remote areas or lack of existence, adding that, if LEPCs do exist, they are not always in contact with the local fire department. The commenter felt that local fire departments should be the first point of contact and that regularly scheduled fire inspections at facilities should be sufficient for making arrangements with the local emergency responders. The commenter added that, if there is no fire department servicing the area of a facility, then the facility should be required to make other arrangements for emergency response and that this could include an internal emergency team. (85)

Comment:  This commenter suggested that EPA should continue providing generators with flexibility currently allowed to make decisions regarding levels of involvement of LEPCs, noting that the Agency's proposal removes existing flexibility, which envisions different needs for the wastes handled on site. To this end, the commenter noted that the wide variety of wastes handled by certain facilities warrants different levels of involvement by LEPC and that EPA appears to be removing that flexibility. The commenter suggested that EPA should continue providing generators with the flexibility currently allowed to make decisions regarding how to satisfy this requirement, especially since RCRA TSD facilities are still afforded this flexibility. (93)

Comment:  This commenter believed that EPA's proposal to require generators to first attempt to enter into a formal agreement with their LEPC before using alternative means to satisfy the requirement to make arrangements with emergency responders is just not practical, noting that LEPCs are staffed with volunteers and have no federal or state funding to accommodate such an agreement. (98)

Comment:  These commenter stated that providing separate planning to an LEPC for hazardous waste appears redundant and may dilute proper local planning with unnecessary information and that EPA should consult with LEPCs regarding the need for this information before imposing it upon them. (99, 230)

Comment:  The commenter noted that EPCRA already sets a range of requirements for LEPCs that involve generator facilities and that many generators have existing relationships with their LEPCs. The commenter further noted that, by stating that such relationships satisfy generator obligations under RCRA, the rule will eliminate inconsistencies and information gaps that can hamper an LEPC's effectiveness. (107)

Comment:  This commenter supports clarification in the proposed rule that an "SQG and an LQG must attempt to make formal arrangements within its Local Emergency Planning Committee (LEPC) unless there is no LEPC, the LEPC does not respond, or the LEPC determines that it is not the appropriate organization to make an arrangement with, and then, the SQG and the LQG should attempt to make arrangements with the local fire department and other relevant emergency responders, such as police and hospitals." (113)

Comment:  This commenter opposed the proposal to require an SQG or an LQG to enter into arrangements with its LEPC.  This commenter's experience is that most LEPCs view working with facilities not within the scope of EPCRA as outside the scope of their authority, technical capabilities or interest. The commenter also noted that LEPCs do not exist in certain areas and that, even in those areas that do have an LEPC, it is the commenter's belief that local fire departments, police department and hospitals will be the relevant first responders and that coordination will occur between these entities at the time of an emergency  -  not LEPCs. The commenter further added that, based on its experiences, the premise of LEPC's working with local responders to integrate the activities of SQGs and LQGs into the overall emergency response plan does not hold true and that many generators who voluntarily submit plans to LEPCs later find that there has been little coordination or sharing of information between LEPCs and other first responders.  The commenter believed that, while the LEPC proposal is well intended in the wake of recent catastrophic chemical accidents and fires, LEPCs may not be the appropriate primary point of contact. (145)

Commenter 147:  This commenter took very strong exception to the order in the new proposed regulations identifying LEPCs as a first contact, noting that its LEPC is a very active organization with many representatives from City and County government and many other organizations but that all officers of the LEPC serve on a voluntary basis and rotate every two years. This commenter also noted that, since the LEPC has no staff to accomplish what the proposed regulations require, it would still fall back to the same staff within the fire department and emergency management agency to accomplish the planning. The commenter believes this is an unnecessary change and suggests changing the order of contact in the new proposed regulations to maintain the same order as now. (147)

Comment:  The commenter noted that, while some LEPCs have hazardous material emergency response equipment and personnel at their disposal (i.e., fire departments and hazmat teams), many times these responders are only available as first responders to stabilize the emergency until contract emergency responders can respond. The commenter also noted that the proposed rule preamble indicates that generators should make arrangements with the LEPC but omits the concept of contracting with contract emergency responders. The commenter believed that generators should be made aware that not all areas of the United States are served by LEPCs or fire departments who can or will respond to hazmat emergencies and that, in such cases, those generators should contract with private emergency response organizations, which the commenter noted are potential entities with which to make arrangements at 40 CFR 262.256(a)(1). (157)

Comment:  This commenter, while advocating the goal of supporting and enhancing State emergency response commissions and LEPCs, questioned the value of requiring generators to first attempt to enter agreements with their LEPC before contacting local emergency responders. The commenter noted that LEPCs typically do not function as emergency responders and tend to be coordinators and clearinghouses for emergency planning information in that emergency response is not typically a part of their mission. Although the commenter admitted that it certainly makes sense to require SQGs and LQGs to supply LEPCs with their current emergency procedures and contingency plan. The commenter did not think it advisable to require generators to first make arrangements with LEPCs prior to contacting local fire departments and emergency responders because local fire and emergency management personnel will most likely be the first responders and will need to have familiarity with the facility, the materials on site, their location and their hazards. The commenter suggested EPA amend this provision to require arrangements be made with local emergency response agencies. (159)

Comment:  The commenter believed that generators should not be required to establish formal agreements with LEPCs and does not support EPA's proposal as it removes all flexibility provided under the current regulation allowing a generator to make arrangements based upon the type of waste handled at the facility and the potential need for services from different local response organizations. The commenter recounted its experience in this regard and stated that to mandate the involvement of an LEPC would not provide any immediate benefit in terms of response coordination for its facilities. (177)

Comment:  A commenter recommended EPA consider involving the LEPCs, if organized and in place, to contact the appropriate emergency service entities based on information received from the generator. (185)

Comment:  This commenter strongly objected to EPA's suggesting a degree of LEPC control over facility operations that does not exist in any other emergency planning program (e.g., Clean Air Act's Risk Management Plan Program), adding that this level of control most certainly does not exist under EPCRA. In the commenter's view, there are typically many facilities in communities that present much greater risks than LQGs; therefore, it is inappropriate to create a program that will divert the limited resources of LEPCs, which are normally volunteer organizations, from higher-hazard facilities. The commenter added that LEPCs are involved in community preparedness rather than directing or controlling emergency response practices and that few LEPCs prepare a plan under the provisions of EPCRA because it would be an unnecessary and inappropriate duplication of effort. The commenter believed it is inappropriate to place requirements on LEPCs and LQGs that are out of step with how communities plan for accidents at other facilities with hazardous materials and did not see any advantage to LEPCs or communities from this proposed change. (191)

Comment: This commenter noted that it currently receives, along with the relevant fire departments, copies of the facility contingency plans under existing State and Federal regulations and that current regulations are quite complementary to its existing EPCRA authority to request information relevant to emergency planning under Section 303(d). (193)

Comment:  This commenter cautioned that EPA's proposal to require LQGs and SQGs to contact the LEPC first to make arrangements to coordinate emergency services is not workable for some facilities in the mining sector because of their remote location. The commenter added that, in these instances, facilities are located in areas where only state officials can respond since the LEPC and the nearest local communities do not have an operating fire department  -  thus the requirement to reach out first to LEPCs is not appropriate and is an extra regulatory burden with no benefit for ensuring effective emergency response. The commenter suggested that EPA's proposal should recognize these instances more clearly and not assume that LEPCs are the best emergency response available in a particular community. (200)

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one of its members is neutral on federal changes to require submission of contingency plans to LEPCs rather than fire departments and other emergency responders but does not interpret this change as "more stringent" and would not adopt this change into its rules. From this member's perspective, LEPCs would not be sensible recipients of contingency plans so this responsibility should remain primarily with local fire departments. This member added that LEPCs are not functional bodies in terms of response, they do not have a physical office space in which contingency plans could be stored/accessed and each LEPC covers an entire county. Another member organization disagreed with EPA's proposal to change the preparedness and prevention requirements to state that SQGs and LQGs must first attempt to enter into agreements with their LEPC, noting that LEPCs are generally not the first responders and that agreements should be made with entities that can provide services such as firefighting, spill response, etc. Yet another member organization believed the preference for arrangements with local authorities being coordinated through LEPCs, where applicable, is a step forward in best and consistent management of emergency communications and preparations. This member believed a single point of contact ensures more consistent sharing of information and coordination of local authorities and also significantly lessens the burden on smaller businesses in determining whom to notify. (217)

Comment:  This commenter believed EPA's proposed requirement fails to take into consideration those situations where LEPCs may be providing these services under other agreements, such as services provided to taxpayers within an area or when generators have their own emergency response teams (i.e., large and or remote facilities). This commenter added that, in many cases, LEPCs do not agree to provide these types of arrangements and asked whether there will be an EPA policy to strongly encourage LEPCs to make these arrangements. Additionally, the commenter asked whether EPA will now require other emergency responders (e.g., fire, police, and hospitals) to make these arrangements with both LQGs and SQGs. The commenter noted that, in some cases, these emergency responders and hospitals may not agree to these arrangements due to site-specific issues, adding that requiring agreements or official arrangements with LEPCs is duplicative and unnecessary since LEPCs are already required to be given copies of emergency response plans and they are already, in almost every instance, invited to come on-site and take tours of facilities. The commenter believed requiring written agreements is an administrative step without benefit that would create a burden on LEPCs across the country. The commenter encouraged EPA to reach out to municipalities and their LEPCs to get their views on the requirement that generators "must make arrangements" with them and "shall" document this arrangement in something like a certified letter. The commenter also encouraged EPA to consider compromise language that preserves the approach in the current regulations that generators must "attempt" to make arrangements and the approach in the proposed regulations that generators document the refusals and any agreements.  The commenter also believed EPA should recognize that such documentation could be reflected in the facility's contingency plan as opposed to a separate stand-alone document. (224)

Comment:  This commenter supported the proposed requirement that SQGs and LQGs must first attempt to make emergency planning arrangements with the LEPC. This commenter added that, where available and willing to work with the SQG/LQG, the LEPC is the generator's most appropriate point of liaison with the emergency response community.  The commenter appreciated EPA's acknowledgement that LEPCs nationwide may be of widely varying viability  -  ranging from active to defunct to nonexistent  -  and that the formation, funding, and operation of LEPCs is driven by requirements outside of RCRA regulations and are beyond the generator's control. (232/281)

Commenter 240:  This commenter asked EPA to reconsider involving LEPCs in the development of a regulated facility's contingency plan. (240)

Comment:  The commenter noted that, as a practical matter, in the event of an emergency, local response agencies would typically be the first to receive notification of an event, often through a "911" system and that, working directly with these local responders (rather than through LEPCs), generators can best assure that appropriate plans are in place for each facility. The commenter notes that proposed regulatory text would actually require generators to establish arrangements with both the LEPC and local responders, adding an extra layer of planning that does not appear to add environmental benefit. For these reasons, the commenter asked EPA to reconsider its proposal requiring facilities to first attempt to work through the LEPC to establish emergency response arrangements and to allow generators to establish plans with either the LEPC or local response agencies (with a copy of the plans submitted to the LEPC) based on need and availability of services. (257)

Comment:  The commenter stated that not all counties have an active LEPC and that many LEPCs do not have a HAZMAT team themselves, adding that to LEPCs as the first point of contact for all LQG facilities across the country, as is proposed, and to require that all LQGs make specific arrangements with predetermined entities is not realistic or appropriate. The commenter suggests that existing regulatory language be retained. (262)

Response (general):  EPA has considered these comments and, in light of the overwhelming opposition, has decided not to finalize proposed references to LEPCs as the primary contact identified at 40 CFR 262.16(b)(8)(vi) and 40 CFR 262.256 for SQGs and LQGs, respectively.

Section 4.7.3 - Making arrangements with LEPCs

Section 4.7.3:  Making ["must make" versus "attempt to make"] arrangements with LEPCs

Comment:  29 commenters disagreed with the requirement for generators to make independent emergency response arrangements with their LEPC and/or emergency responders (76, 78, 89, 97, 113, 120, 126/188, 128, 145, 151, 156, 168, 173, 191, 201, 205, 214, 217, 220, 224, 225, 232/281, 240, 241, 245, 248, 255, 262; 263). Two commenters believed this requirement is excessive since there are likely to be numerous small and large quantity generators in most LEPC jurisdictions (78, 214). One commenter believed requiring agreement with LEPCs is duplicative since LEPCs are already required to be given copies of emergency response plans, and are already invited to come on-site to tour facilities (224). Six commenters were concerned that the emergency responders or LEPCs will be unwilling or unable to enter into such agreements (120, 128, 225, 232/281, 241; 262). Three commenters believed this requirement will make generators liable for the actions or inactions of LEPCs beyond their control (89, 168; 248). Four commenters stated the requirement for an "agreement" is burdensome for generators since they have no authority to require the emergency responders to develop and agree to arrangements (173, 201, 232/281; 255). Two commenters believe these requirements would be a substantial burden on local responders given the number of arrangements and contingency plan updates they will receive (245, 248). One commenter believed changes proposed by EPA are unworkable; in particular, requiring SQGs and LQGs to not simply "attempt" to make arrangements but to ensure that arrangements are actually made and that SQGs and LQGs would have to obtain a certified letter or other documentation confirming that the arrangements "actively" exist (126/188). One commenter noted that there are simply too many different cases and circumstances across the U.S. to become needlessly prescriptive for the process for making or attempting to make arrangements for emergency response (156)

Comment:  One commenter agreed with the change requiring that a generator must enter into an agreement with emergency planning officials as those officials now exist in the fire departments and emergency management agencies. (147)

Comment:  One commenter agreed with the requirement that LEPCs and generators come to an "agreement" (256).

Comment:  One commenter believed these proposals will require the local government employees that participate in LEPCs or serve on emergency response agencies to cope with the demands of LQGs for "agreements" and "arrangements" (191) and another commenter (151) supports this position as this would result in significant financial impacts on small governments.

Comment: Five commenters requested the following clarifications (77, 78, 107, 142; 214):

    Defining the level of effort a generator must take to make arrangements with an LEPC before determining the effort unsuccessful (77, 107), including what happens if the LEPC does not respond or claim responsibility for the agreement (142)
    Describing when "other emergency response teams, emergency response contractors, equipment suppliers, and local hospitals" should be arranged for (78).
    What constitutes an "agreement" (214).
    Whether generators with existing arrangements with local fire departments would be required to attempt to make new arrangements with an LEPC as this could disrupt longstanding existing arrangements (77, 107).

Comment: 10 commenters made the following recommendations (87, 90, 107, 152, 173, 189, 195, 204, 219; 220):

    Change the regulatory language to state SQG/LQG must "use all reasonable effort" to make arrangements with the LEPC/emergency responders (219).
    Alter the language of the regulation to reduce the burden on LEPCs (90). The connotation of agreement is that of two parties agreeing to provide certain services or resources during an incident. The commenter suggests changing "enter into an agreement" to "notify in a method determined by the LEPC."
    Change the arrangement approach to a notification or submittal process (204).
    Retain the current language which requires facilities to "attempt" to make arrangements with potential emergency responders, as LEPCs are not required to cooperate (87, 152, 173, 189, 195; 220). One commenter states that without the word "attempt" in the regulatory text, the regulated entity would automatically be in a state of non-compliance if local authorities do not respond to or deny a request (189).
    Add a time frame for generators to comply with the requirement (107).

Comment:  One commenter stated the proposed rule is attempting to incorporate the LEPCs in the arrangement and contingency plan process even though they have not been included in the emergency notification procedures (204).

Comment: One commenter believed generators should only be required to coordinate with LEPCs and emergency responders when the facility is not obligated to do so under EPCRA, RMP, or some other authority (192)

Comment: One commenter disagreed with using the words "agreement" and "arrangement" The commenter believes that the terms "agreement" and "arrangement" give LQGs some degree of control over community preparedness and emergency planning (191) and another commenter supports this position (151).

Comment: One commenter stated that LEPCs cannot conceive of an "arrangement" that would allow a facility to dictate anything involving mutual aid agreements or incident command procedures (193).

Comment: One commenter questioned the usefulness of notifications to local authorities even as the current regulations are written (229).

Comment: One commenter believed requiring a separate notification for waste is not needed since the hazards of the waste are the same as the hazards of the original chemicals (154).

Response (general):  EPA has considered these comments and, in light of overwhelming opposition, the Agency is not finalizing proposed language indicating that generators must make arrangements with local responders and has clarifying in the final rule at 40 CFR 262.16(b)(8)(vi)(A) and 40 CFR 262.256(a) that SQGs and LQGs, respectively, must simply attempt to make arrangements with local responders.

Section 4.7.4 - Documenting arrangements with LEPCs
 Comment: Five commenters supported the requirement to document arrangements with LEPCs, or other local first responders (116, 174, 182, 185; 217). One commenter believed in some instances the documentation of these arrangements should state that the facility is capable of performing its own emergency response (182). One commenter recommended EPA provide some guidance or template for this documentation (116).

Comment: Five commenters did not support the requirement to document arrangements with LEPCs or other local first responders due to the additional burden on both parties (78, 89, 173, 219; 243). One commenter believed it is unreasonable and unduly burdensome for EPA to expect that the generator conduct inquiries with the local officials as to the reason for officials' non-response (243). One commenter believed documenting the arrangements is unnecessary because the arrangements will be in the contingency plan (219). One commenter was concerned that "records" documenting the arrangements may be difficult to obtain (78).

Comment: One commenter believed most SQGs will not have levels that trigger Emergency Planning and Community Right-to-Know Act reporting (174).

Comment: Three commenters requested the following clarifications (179, 240; 257/288):

    Documentation needed to prove a generator has attempted to enter into agreements with their LEPCs, or other emergency responders (Commenters 179, 240) and the type of "certified documentation" that LQGs have in their files regarding LEPCs and their contingency plans (240)
    Whether a receipt of a certified letter is sufficient to acknowledge acceptance of the agreement (240).
    Whether EPA would consider allowing certified mail receipts, or similar documentation, to be used as confirmation that arrangements have been made (257/288).

Comment:  One commenter objected to including documentation of agreements in the RCRA Contingency Plan (156).

Response (general):  Taking into account feedback from all commenters, the final rule language at 40 CFR 262.16(b)(8)(vi)(B) and 40 CFR 262.256(b), for SQGs and LQGs, respectively, clearly states requirements in terms of documenting either the attempts or, if successful, the final arrangements, including what constitutes sufficient "documentation" that best efforts were made to enter into arrangements. EPA has also removed the term "certified letter" in recognition of the fact that there are various means of confirming that arrangements actively exist, or were sought but not obtained, including, but by no means limited to, a certified letter, fax and electronic mail. Additionally, based on these comments, EPA is revising proposed language to insert the phrase "in the operating" record that would, as discussed in the final rule preamble, include the contingency plan in order to provide additional flexibility regarding where such documentation can be retained. Finally, EPA has noted in the final rule preamble that, during implementation of the final rule, as part of coordinating with stakeholders and conducting associated outreach activities, the Agency intends to address the issue of what constitutes reasonable efforts or sufficient attempts by SQGs and LQGs to make and document arrangements with local authorities.

Section 4.7.5 - Large facilities with internal emergency teams

Section 4.7.5:   EPA requested comment on emergency procedures at large facilities with internal emergency teams (i.e., feasibility of providing a waiver from requiring either an SQG or LQG to enter into arrangements with local authorities when these facilities have 24-hour on-site emergency response capabilities and circumstances under which a waiver would be granted).

Comment: 11 commenters supported providing a waiver from entering into agreements for generators with their own emergency response teams (77, 78, 85, 92, 93, 179, 182, 192, 200, 248; 255). One commenter (77) believed that many oil and gas facilities would fall into this category, another commenter (93) believed likewise for all nuclear power plants and yet another (200) noted that some mining facilities have their own 24-hour emergency and fire response capabilities. One commenter believed a waiver should be provided for facilities with classified information or facilities where off-site emergency organizations are not necessary or practical due to security but also noted that proposed regulations do not include any language addressing this issue and recommended that the waiver proposal include a mechanism for a facility to document that these arrangements are not required and that such documentation be available during an inspection (92). One commenter requested clarification regarding how the proposed change would affect entities that have their own emergency responders and an exemption from agreements for entities that have their own emergency responders (179). Another commenter believed that, in some special instances (e.g., determined on a case-by-case basis), the documentation of these arrangements with local authorities should state that the facility is capable of performing its own emergency response and that this information should be documented in the facility's contingency plan (182).  A commenter suggested certain documents as possibly being suitable for supporting the waiver request such as a memorandum of understanding (or similar document), letter from the CEO/Commander/etc. stating that emergency management staff will remain as funded positions for a specified time interval or an organizational chart with job descriptions (248).

Response (77, 78, 85, 92, 93, 179, 182, 192, 200, 248; 255):  EPA agrees with these commenters and also supports the need to document the waiver process. The Agency has addressed this in the final rule preamble and regulatory text.

Comment:  Four commenters did not believe a waiver was appropriate for generators with their own emergency response teams (71, 108, 123; 156). One commenter noted that any response team can be overwhelmed if the situation is serious enough or the on-site "go to" people are incapacitated; therefore, it would be safer if local emergency management authorities are aware and involved (108). Another commenter opposed a waiver but instead requested that an exemption be created for such generators meeting the conditions satisfying the spirit and intent of this new rule (123). One commenter indicated awareness that certain large facilities have internal emergency teams, including the commenter's own facility, which possesses on-site fire halls and medical clinics and its own emergency response capabilities (e.g., fire, rescue, medical and spill response teams)  -  and is not accessible to the LEPC. However, this commenter also believed that existing regulations suffice and that "large" facilities should be able to simply identify their teams as being equivalent to LEPCs and local emergency response authorities  -  such that a waiver process should not be established (156).

Response (108, 123; 156):  EPA disagrees with these commenters and believes establishing a waiver process is appropriate in order to clearly identify those facilities that will not be making arrangements with local emergency management authorities. EPA also notes that the decision to request a waiver rests with the facility and that the waiver request would need to include justification so as to ensure approval.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that it believes all generators should make arrangements with the local authorities even if the generator has its own emergency response team, noting the commenter's experience that off-site emergency services may be needed during catastrophic or long-lasting incidents. One of the member organizations suggested that, in some special instances (e.g., on a case-by-case basis), documentation of these arrangements should state that the facility is capable of performing its own emergency response, although his information would need to be documented in the facility's contingency plan. Another member organization stated that refineries generally have their own specially trained response teams and do not have the local emergency response teams respond unless requested and that they generally have agreements with the local emergency response teams in place. This organization stated that, if the proposed rule is adopted, then a waiver should be allowed for these types of circumstances and also suggested that EPA consider a particular information delivery system ("E-Plan") for electronic submittals (217).

Response (217):  EPA appreciates the information and suggestions provided the commenter's member organizations. The Agency supports the waiver process, as noted in the final rule preamble and regulatory text. Regarding the method of delivery, although final regulations do not specify how the waiver should be submitted, we would encourage generators to work with the "Authority Having Jurisdiction" to determine the most appropriate approach for providing the waiver request.

Response (overall):  With respect to large facilities possessing internal emergency response capability, EPA has added language at 40 CFR 262.16(b)(8)(vi)(C) and 40 CFR 262.256(c) allowing these facilities to obtain a waiver from the "Authority Having Jurisdiction" in terms of entering into arrangements with local authorities, provided the waiver is documented "in the operating record." The "Authority Having Jurisdiction" may be the fire marshal, fire chief, building official, or another official designated by the state or local government. EPA has inserted the phrase "in the operating record," which would include the contingency plan, to provide additional flexibility regarding where such documentation can be retained.

Section 4.7.6 - Contingency plans
 Section 4.7.6:  Contingency Plans [Requirement for new LQGs to submit a contingency plan executive summary  -  termed "quick reference guide" in the final rule  -  to emergency management authorities].

Comments:  22 commenters believed that new LQGs should be required to provide an executive summary (78, 82, 85, 108, 145, 157, 159, 174, 178, 182, 185, 189, 204, 214, 219, 232/281, 248, 250, 256; 264; 289)

Response (78, 82, 85, 108, 145, 157, 159, 174, 178, 182, 185, 189, 204, 214, 219, 232/281, 248, 250, 256; 264):  EPA agrees that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions. This is requirement is set forth at 40 CFR 262.262(b).

Comment:  While supporting the requirement for a contingency plan executive summary, a commenter suggested the following changes: (1) contents of the contingency plan executive summary should be included in 40 CFR 262.261 not 262.262; (2) 40 CFR 262.262(b) should be relocated to 40 CFR 262.260 and (3) 40 CFR 262.263(a) should be revised to require that current LQGs amend their contingency plans to include the executive summary when the next amendment is triggered by 40 CFR 262.263 after [date 6 months after final rule publication]. (174)

Response (174):  EPA believes that 40 CFR 262.262(b), including the contents of the contingency plan quick reference guide at (b)(1)-(8), is appropriately located. Rather than revising 40 CFR 262.263(a), EPA has added language to 40 CFR 262.262(b) indicating that an LQG that is otherwise amending its contingency plan ("current LQG") must submit a quick reference guide at that time.

Comment:  This commenter believed that LQGs should submit the first executive summary to LEPCs whenever they significantly change their contingency plan. This commenter also believed that use of a contingency plan/executive summary submission attached as a PDF via CAMEO should be the method of transmission for these proposed regulations as this would allow LEPCs to receive contingency plans and executive summaries in the same way as they receive information required by EPCRA. (182)

Response (182):  Final regulations at 40 CFR 262.262(b) clarify that an LQG that first becomes subject to these provisions or an LQG that is otherwise amending its contingency plan must, at that time, submit a quick reference guide. Final regulations at 40 CFR 262.262 do not specify the format in which the contingency plan must be provided nor do they discuss software applications. However, as noted in the final rule preamble, EPA strongly encourages LQGs to work with first responders to determine whether electronic submission of contingency plans, including incorporating contingency plan information into existing software applications such as CAMEO, is an acceptable approach either in lieu of or in addition to a hard copy submission.

Comment:  Although agreeing that a shorter document, such as an executive summary, would be more effective for emergency response, this commenter does not agree that creating an executive summary solely for a hazardous waste contingency plan is the right approach. Over the years, multiple overlapping contingency planning requirements were established as various programs and related regulatory requirements were established. With implementation of the National Response Team (NRT) Integrated Contingency Plan Guidance ("One Plan") in 1996, a significant need was recognized across multiple agencies for an approach to consolidate these separate and somewhat disparate requirements, as a benefit to both industry, and emergency planners and responders. Establishing an executive summary specific for the hazardous waste contingency plan requirements would be repeating the same mistake as with the initial development of separate contingency plan requirements under individual programs. If an executive summary is needed for hazardous wastes contingency plans, it is likely a similar situation exists with other contingency plans. The commenter suggested that EPA take this opportunity to consider developing an executive summary contingency plan approach that would span across multiple programs, as the One Plan guidance does for the full contingency plans. (204)

Response (204):  EPA disagrees with this commenter. Existing regulations already allow development of a contingency plan that meets regulatory standards besides RCRA; moreover, EPA recommends that generators base their contingency plans on One Plan guidance, as also noted at 40 CFR 262.261(b). The Agency encourages generators to work with emergency response agencies and others to identify additional elements that could be included within a quick reference guide that satisfies the requirements of multiple programs.

Comment:  A commenter asked what changes qualify for resubmittal or updating submitted plans (214).

Response (214):  40 CFR 262.262(c) requires that all LQGs update and submit their quick reference guides, if necessary, whenever the contingency plan is amended.

Comment:  A commenter providing feedback on behalf of multiple member organizations recognized EPA's intent to streamline access to information contained within contingency plans during an emergency. However, this commenter stated that requiring new LQGs to develop a mandatory executive summary for contingency plans may prove redundant and be equally as complex as development of the full contingency plan, given that most of the information that would be required in the executive summary would also be included in the full contingency plan. This commenter also indicated that one of its members requested clarification regarding what EPA means by a "new LQG." (217)

Response (217):  EPA believes that preparing a quick reference guide will be neither redundant nor complex since each of the eight elements will be clearly identified in the regulations at 40 CFR 262.262(b)(1)-(8). For the purposes of these provisions, a "new LQG" is a facility that becomes an LQG after the effective date of this regulation.

Comment:  This commenter believed that creating an executive summary, particularly one for a highly factual document like a Contingency Plan, may cause the emergency responder who just reads the executive summary to miss important information.  The commenter also stated that, at a small plant, an executive summary would add pages of repetitive information to what is likely already a manageable contingency plan and, at a very large plant, an executive summary would have to be extensive to cover the required information, thus defeating its purpose. The commenter suggests that EPA simply require an LQG to have a table of contents or index in its contingency plan if it is beyond an easily readable length (e.g., 20 pages). This will enable an emergency responder to easily find the section of the plan relevant to whatever issue the emergency responder needs to address. (219)

Response (219):  EPA has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Comment:  This commenter believes a time period should be specified for issuance of the executive summary for existing LQGs. (248)

Response (248):  EPA has not specified a time period, however, the final rule language distinguishes between existing and new LQGs with respect to preparation and submission of quick reference guides at 40 CFR 262.262(b). EPA has also added new language at 40 CFR 262.262(c) to require that all LQGs update and submit their quick reference guides, if necessary, whenever the contingency plan is amended.

Comment:  A commenter stated that contingency plans do not contain a summary for use in an emergency situation where response time is critical and that agreements with local emergency planning committees aren't required to be written down. This commenter also noted that considerations for modern technology and alternative waste collection and clean-up/removal procedures have not yet been put into place (289).

Response (289):  EPA presumes that the commenter would support proposed revisions intended to address the issue of response time, such as requiring a contingency plan quick reference guide (for both new and existing LQGs), and to better document arrangements with local emergency responders by in terms of either confirming that such arrangements actively exist or, in cases where no arrangements exist, that attempts to make such arrangements were made. These revisions, as well as additional revisions made to address feedback from other commenters, have been incorporated into the final rule at 40 CFR 262.256 and 40 CFR 262.262(b) and (c).

Comments:  13 commenters believed that new LQGs should not be required to provide an executive summary (71, 77, 92, 107, 116, 126/188, 128, 131, 142, 168, 191, 192, 262).

Response (71, 77, 92, 107, 116, 126/188, 128, 131, 142, 168, 191, 192, 262):  EPA disagrees with these commenters and believes that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions, as set forth at 40 CFR 262.262(b).

Comment:  The commenter did not agree with the need for an executive summary of each contingency plan as this could be redundant with no added value for certain facilities and suggested that wording be added to the proposed regulation to allow for such situations. (92)

Response (92):  EPA believes that the majority of facilities, as well as local emergency responders, will benefit from creation of a quick reference guide.

Comment:  The commenter stated that EPA should not require LQGs to provide executive summaries. Mandating that LQGs submit executive summaries will compel submission of documentation that, in all likelihood, the LEPC will find redundant, which is contrary to the overall objective of improving an LEPC's effectiveness. The commenter suggests that EPA consider eliminating this requirement or at least changing it to require the LQG to consult its LEPC concerning whether an executive summary is necessary and what information it should contain. (107)

Response (107):  As noted elsewhere in this response to comments, EPA is not finalizing references to LEPCs as the primary contact identified at 40 CFR 262.256 for LQGs; rather, LQGs are directed to submit the quick reference guide to local emergency responders identified at § 262.262(a), although this document could also be submitted to LEPCs, as appropriate. EPA believes that local emergency responders and LEPCs will find the quick reference guide necessary and useful. Regarding the contents of the quick reference guide, local emergency responders and LEPCs, as well as LQGs, are free to include elements besides those specified at 40 CFR 262.262(b)(1)-(8).

Comment: This commenter stated that requiring new LQGs to develop an executive summary for contingency plans may prove redundant and be equally as complex as development of the full contingency plan, given that most of the information required in the executive summary would also be included in the full contingency plan. Additionally, the commenter recommended that EPA place greater emphasis on the quality of the contingency plan components and subsequent due diligence actions by the affected and involved entities. (116)

Response (116):  EPA believes that preparing a quick reference guide will be neither redundant nor complex since each of the eight elements will be clearly identified in the regulations at 40 CFR 262.262(b)(1)-(8). EPA fully agrees that contingency plan quality is important; however, we are not addressing this issue in the final rulemaking.

Comment:  This commenter did not support a mandatory requirement that contingency plans include an executive summary as the commenter believed having an abbreviated summary would encourage responders to rely on the summary rather than on the complete, critical information in the body of the plan. (126/188)

Response (126/188):  EPA believes that the full contingency plan and associated quick reference guide will complement each other, with the latter allowing first responders to quickly access key information in the event of an emergency.  Although the content of the quick reference guide is intended to capture critical information, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment:  This commenter objected to submission of an executive summary of the contingency plan because the full contingency plan is already being submitted to the agencies with whom the generator has made arrangements. The development and submission of an executive summary becomes an undue burden when the requirement already exists to submit the full plan. It was suggested that a better approach is to simply have a table of contents or index that will quickly direct the reader to all of the needed information. (131)

Response (131):  EPA agrees and has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Comment:  This commenter did not support producing an executive summary as it duplicates the information required in the contingency plan. For complex organizations, such as higher education with research, it would be extremely difficult to provide a simple summary with all of the proposed requirements. This commenter suggested that a table of contents is a simple and effective way of providing information to emergency responders. (142)

Response (142):  EPA agrees and has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Comment:  This commenter believed that, whatever the merits of requiring an executive summary for contingency plans, there is no need for such a summary in the retail sector. The commenter suggested that EPA rely on other programs to ensure that executive summaries are available to the extent they may be necessary and useful to first responders. (168)

Response (168):  EPA believes that the majority of facilities, as well as local emergency responders, will benefit from creation of a quick reference guide.

Comment:  This commenter believed an executive summary is essentially worthless to active LEPCs and saw no reason for LQGs to be required to create an executive summary when active LEPCs are likely to simply ask for the entire plan, further noting that inactive LEPCs will not be harmed by only receiving the full plan. (191)

Response (191):  EPA has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency. Also, as noted elsewhere in this response to comments, EPA is not finalizing references to LEPCs as the primary contact identified at 40 CFR 262.256 for LQGs; rather, LQGs are directed to submit the quick reference guide to local emergency responders identified at § 262.262(a), although this document could also be submitted to LEPCs, as appropriate. EPA believes that local emergency responders and LEPCs will find the quick reference guide necessary and useful.

Comment:  A commenter opposed this requirement. In the commenter's experience, emergency responders do not want to be tasked with maintaining such materials, including the need to protect confidential business information contained in such documents and the need to replace old versions with new versions. The commenter stated that most LEPCs and emergency responders are not going to read even summaries of such information unless and until they have to or in connection with a drill or other exercise. The commenter also stated that many of its members maintain their contingency plans and safety data sheets in lockboxes on site to which local responders have been given keys and are thus able to familiarize themselves with the facility. In this way, the emergency responders have access to updated, relevant information when they need it. The commenter suggests that, at a minimum, EPA should include an option to comply with information sharing requirements via a lockbox. (192)

Response (192):  The commenter raises an interesting point regarding confidential business information, which is something the Agency is not specifically addressing in the final rule, although the extent to which elements specified at 40 CFR 262.262(b)(1)-(8) for a quick reference guide (as opposed to a full contingency plan) would contain confidential business information is unknown to us. Regardless of where the quick reference guide is located (i.e., lockbox or elsewhere), EPA believes that emergency responders and LEPCs will find this document useful.

Comment:  A commenter stated that the proposed executive summary requirements further place a burden on LQGs because not only would they need to ensure that their contingency plans are compliant but also that the summaries follow the detailed requirements. The commenter recommends that executive summary requirement be voluntary so that generators who have proper contingency plans are not subject to possible enforcement action because the executive summaries may not follow the detailed requirements. Instead, LEPCs should be encouraged to review contingency plans rather than placing the added burden on generators to summarize the plan. As an alternative to the proposed regulation, the commenter recommends a table of contents or index so that emergency responders can find the information they are looking for during an emergency. (262)

Response (262):  EPA agrees and has replaced the term "executive summary" with the term "quick reference guide" in order to more closely mirror the intended purpose of this document in order to better convey the fact that the format of this document should enable first responders to quickly access key information in the event of an emergency.

Section <IP_ADDRESS> - Contingency plan executive summary

There are no comments organized to this section of the comment outline. Any relevant comments are responded to under Issue 4.7.6.
Section <IP_ADDRESS>.1 - Scope of contingency plan executive summary

Section <IP_ADDRESS>.1:  Scope of contingency plan executive summary [appropriateness of information described by the eight elements comprising the quick reference guide].

Comment:  While objecting to submission of an executive summary, the commenter believed that simplified information from the contingency plan may be beneficial to first responders, although the commenter suggested that generators and LEPCs or fire departments should have the flexibility to work together on a site-specific basis to determine what information needs to be distilled. (77)

Response (77):  Although the content of the quick reference guide is intended to capture critical information, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment:  Three commenters agreed with the eight elements proposed to be listed in the summary (85, 145; 248), while one commenter only believes elements #1, #2, #3, #4 and #6 are necessary (108).

Response (248):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident.

Commenter:  A commenter, while objecting to the requirement for new LQGs to submit an executive summary, recommended that 40 CFR 262.262(b) be modified to read, "The executive summary must include the following elements unless excluded by the responding agency (Local Emergency Planning Committee, Fire Department, local emergency responders, etc.) in the written agreement," Including recommended text would allow the responding agency to determine if there may be some information that they do not need in the executive summary. (116)

Response (116):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident. However, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment:  Three commenters similarly suggested that EPA modify the language at 40 CFR 262.262(b) regarding the eight elements to read, "The executive summary must include the following elements as required by the LEPC or responding agencies" (or comparable language) (128, 219, 225). A commenter also expressed concern about this requirement and believed EPA is being too comprehensively rigid in specifying what information must be included, suggesting that such information should be required except where the written agreement between the Local Emergency Planning Committee and other appropriate responders states that it is unwarranted. (128)

Response (128, 219, 225):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident.  However, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included.

Comment: The commenter suggested that the executive summary include a list of storage areas and a brief description about the types of wastes that may be stored there and their associated hazards (e.g., corrosivity or flammability). (159)

Response (159):  EPA believes that this information is already required under element #1 of the quick reference guide but notes that local emergency responders and LQGs are free to include additional information in this document. Moreover, authorized states can establish additional informational requirements for this (or any other) element.

Comment:  A commenter believed that the word "coordinator" in proposed §262.262(b)(8) should be changed to "coordinator(s)," since an LQG could have more than one emergency coordinator (178).

Response (178):  Regulations at 40 CFR 262.261(d), 40 CFR 262.263(e) and 40 CFR 262.264 already indicate (or allow for) more than one emergency coordinator at a facility. However, for the sake of consistency, EPA has revised 40 CFR 262.262(b)(8) as suggested and changed the word "number" to "number(s)" to reflect the fact that more than one emergency coordinator telephone number could exist  -  as mentioned in 40 CFR 262.261(d).

Comment:  The commenter agreed with the required eight elements but believes that many process units pose greater hazards to responders than waste accumulation units.  As examples, the commenter noted that fires are a frequent hazard at plating facilities that have high voltage lines and heated tanks, in addition to cyanide plating baths and excluded waste water treatment units, which have a much higher hazard potential than the accumulated Gaylord containers of treated plating sludge. (214)

Response (214):  Local emergency responders and LQGs are free to include additional information in this document and authorized states can establish additional informational requirements beyond those represented by the eight elements.

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one of its members suggested adding the evacuation routes to the executive summary. Another member believed requiring a map that shows where hazardous waste is generated/accumulated in the executive summary will pose a unique burden on federal facilities and large campus-style facilities, which may have changing sources of hazardous waste generation and accumulation areas. This member suggests allowing for submittal of revised maps without having to re-submit the entire executive summary, as well as maintaining a current map at the facility to be provided immediately to emergency responders during an incident. Similar to commenters 128, 219 and 225, one member recommended that EPA modify the language at 40 CFR 262.262(b) regarding the eight elements to read, "The executive summary must include the following elements unless excluded by the responding agency (Local Emergency Planning Committee, Fire Department, local emergency responders, etc.) in the written agreement," noting that this modification allows the responding agency to determine if there may be some information that they do not need in the executive summary. (217)

Response (217):  EPA believes the eight elements identified at 40 CFR 262.262(b)(1)-(8) appropriately capture critical information and will be useful to emergency responders in the event of an incident. However, we encourage generators to work with emergency response agencies and others to identify additional elements that could be included. Additionally, authorized states can establish additional informational requirements beyond those represented by the eight elements.

Comment:  One commenter noted that, while the generator would have information on the types and maximum quantity of hazardous waste present at any time, street and site maps, descriptions of alarm systems, emergency contact information and similar items that can be transmitted to the authorities, not all elements proposed by EPA are necessarily available to the generator. For example, medical information for exposure and water supply flow rates are not necessarily known by the generator and often cannot be easily obtained. The commenter noted that, while general information that is readily available can be provided, a generator may not be in a position to obtain and communicate detailed information that is not within its possession or area of expertise. (257)

Response (257):  EPA believes it is not unreasonable to expect generators to obtain information described at 40 CFR 262.262(b)(1)-(8), although we realize that certain elements could prove more challenging. We would encourage generators to work with emergency response agencies and others to identify certain types of wastes that require unique or special treatment. EPA realizes that water supply flow rates are not necessarily known by the generator and often cannot be easily obtained and likely vary through time; however, it should be possible to make an estimate with the intent of ensuring that sufficient water pressure and water volume are available.

Response (overall):  EPA is not making any changes to the elements as far as information needed to assist emergency responders is concerned; therefore 40 CFR 262.262(b)(1)-(8). However, EPA notes that, in order to be consistent with changes made to 40 CFR 262.261(d) regarding eliminating employee personal information in LQG contingency plans, the Agency has revised language in element #8 to read "...the name of the emergency coordinator(s) and emergency telephone number(s) or, in the case of a facility where an emergency coordinator is continuously on duty, the emergency telephone number for the emergency coordinator."

Section <IP_ADDRESS>.2 - Elements of contingency plan executive summary

Section <IP_ADDRESS>.2:  Elements of Contingency Plan Executive Summary [EPA took comment on: (a) whether providing information regarding identification of hazardous waste under element #1 (i.e., name of the waste in layman's terms) is sufficient for ensuring that first responders will be able to identify the appropriate actions to take in response and (b) whether referencing material in the North American Emergency Response Guide (NAERG), where appropriate, would be useful by reducing the time it takes to get the necessary information for managing the situation) to first responders and whether generators can easily access this information to add to their contingency plans].

Comment:  A commenter supported the intent of including this information but recommended specifically requiring the United Nations/North American Identification Number (UN/NA) for each hazardous waste, rather than referencing the NAERG because the latter could include, besides the common name already proposed, several different identifiers, thus negating any beneficial effects of this element. The commenter noted that requiring the UN/NA should not be a challenge for LQGs since this information is already required for each waste when completing the Uniform Hazardous Waste Manifest; therefore, this information would already be known for any LQG manifesting its hazardous waste off-site. The commenter also added that the UN/NA could then be used to search and identify wastes in the NAERG (232/281).

Comment:  Another commenter supported EPA's intent to provide information, in a more convenient form, to emergency responders in order to assist them in the event of an incident.  The commenter agreed that providing names in layman's terms is adequate to ensure that first responders can identify the appropriate actions to take in response to an incident and that a NAERG, where appropriate, would likely reduce the time it takes for first responders to receive information needed to manage the situation. The commenter also agrees that regulations should allow for wastes to be grouped in categories associated with their hazard, as opposed to a list of individual wastes, as this list might be long and not meet the intended goal (236/287).

Response (general):  EPA thanks the commenters for their support and appreciates the suggestion of one commenter regarding use of the UN/NA. EPA is finalizing 40 CFR 262.262(b)(1) as proposed, in order to avoid being overly prescriptive, but notes that authorized states can establish additional informational requirements for this (or any other) element and that other authorities can do likewise (or at least make recommendations).

Section <IP_ADDRESS>.3 - Including NAERG reference in element 1

All comments organized to this section of the comment outline are responded to under Issue <IP_ADDRESS>.2.
Section <IP_ADDRESS>.4 - Including medical information in element 3

Section <IP_ADDRESS>.4:  Including Medical Information in Element 3 [EPA took comment on whether element #3 should also include a requirement that the generator provide information on the medical information for exposure to hazardous wastes requiring special treatment; specifically, whether this information is readily available to the generator for inclusion in the executive summary of the contingency plan and whether first responders would find this additional information useful for responses].

Comment: One commenter did not support this proposed change as it would require generators to determine the type of medical treatment that would be needed in the event of exposure to hazardous wastes.  This commenter stated that such determinations would be necessary in order for the generators to identify hazardous wastes for which exposure would require a unique or special treatment by medical or hospital staff, further noting that this information is not within the purview of the generators, and in many cases, would need to be provided by the very same first responders that would be receiving it from the generators via the executive summary (123).

Response (123):  EPA has decided not to include this additional requirement as part of element #3 but would encourage the generator, in consultation with first responders, to include medical-related information associated with exposure to certain hazardous wastes.

Comment: Two commenters requested clarification regarding the explicit identification of wastes that would require a unique or special treatment by medical or hospital staff (123, 232/281). One commenter specifically inquired as to what constitutes "unique or special treatment," who can supply instructions for such treatment and when documentation of the determination of such treatment is required. (123). Another commenter noted that any chemical harmful to the human body, which includes nearly all hazardous wastes by definition, may necessitate "unique or special" medical treatment, depending on the circumstances of the exposure, the duration and concentration of the exposure and the particular individual exposed. This commenter stated that, since there are no criteria or definitions for "unique or special treatment" to determine which hazardous wastes would be required be included as part of element #3, generators would be unable to determine if they were compliant or noncompliant with the requirement. The commenter believed that this information is best determined by medical staff based the circumstances of each particular incident, using the hazardous waste identification information already proposed for inclusion in the quick reference guide and recommended that EPA remove element #3 (232/281).

Response (123, 232/281):  EPA agrees that there exists no criteria or definition for particular hazardous wastes requiring unique or special treatment. The type of treatment required will necessarily depend on the type of hazardous waste, as well as factors mentioned by one of the commenters (i.e., circumstances of the exposure, duration/concentration of the exposure and the particular individual exposed). However, the Agency believes it is not unreasonable to expect generators, based on knowledge of the wastes generated at their facilities, to be able to identify certain types of wastes that require unique or special treatment.

Response (overall):  EPA is finalizing 40 CFR 262.262(b)(3) as proposed.

Section <IP_ADDRESS>.5 - Other

    EPA requested comment on whether regulations should mandate how frequently a generator must communicate with emergency response agencies (LEPC or local fire department, etc.) if it has not otherwise communicated with them.

 Comments:  One commenter believed communication could be addressed by submitting updated executive summaries to the LEPC and/or other agencies whenever information included in such executive summaries was revised or when the LEPC and/or other agencies requested additional information (78). One commenter believed the regulations should not mandate how frequently a generator should communicate with its emergency response agency (85). Another commenter stated that the final rule does not need to specify a frequency for facilities to update LEPCs and added that, if EPA concludes the rule must provide direction on updates, that the Agency identify events that would prompt an update, as opposed to an arbitrary frequency (107). Two commenters believed SQGs and LQGs should only be required to communicate with their LEPC/emergency responders in the event that the facility has a major change in its operations (182, 217). One commenter suggested that a requirement to update arrangements with local emergency responders or LEPCs should be annually, at a minimum, and more frequently if modification is needed based on changes such as the type and amount of waste generated (257/288), while another commenter expressed support for EPA's proposed requirement that "...generators document arrangements with Local Emergency Planning Committees (LEPCs) annually..." (116).

 Response (general):  EPA agrees with the majority of commenters and continues to believe that it is unnecessary to mandate how frequently a generator should communicate with its emergency response agency. Therefore, the Agency is not making any changes to what was proposed at § 262.16(b)(8)(vi) and § 262.256 for SQGs and LQGs, respectively. Additionally, in response to commenter 116, EPA wishes to note that the Agency did not specify a communication frequency in the proposed rule preamble.  Rather, the Agency noted that, since some SQGs and LQGs may already coordinate with their LEPCs annually as part of their EPCRA requirements, it would not be necessary to include time frames as part of this rule. The Agency, nevertheless, requested comments on whether the regulations should mandate how frequently a generator must communicate with its LEPC or local fire department if it has not otherwise communicated with them.

    EPA requested comment on whether an existing LQG that has already provided its full contingency plan should also be required to submit an executive summary to the LEPC or, if appropriate, the fire department or other emergency responders.

Comments: 19 commenters indicated that they would support a requirement for existing LQGs to provide an executive summary (78, 82, 108, 145, 157, 159, 178, 182, 185, 189, 204, 217, 219, 232/281, 248, 250, 256; 264; 289).

Response (78, 82, 108, 145, 157, 159, 178, 182, 185, 189, 204, 217, 219, 232/281, 248, 250, 256; 264):  EPA agrees that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions. This requirement is set forth at 40 CFR 262.262(b).

Comment:  A commenter providing feedback on behalf of multiple member organizations noted that EPA is not proposing to require an LQG that has already developed/submitted a contingency plan to local emergency responders to prepare an executive summary because of the additional burden that would be imposed. It was suggested that, if the proposal for an executive summary is finalized, regulations should be written to give the generators a choice of an executive summary or a comprehensive contingency plan. Another member believed that LQGs should submit the first executive summary to LEPCs whenever they significantly change their contingency plan. (217)

Response (217):  Based on comments received, final regulations require LQGs that have already developed/submitted a contingency plan to submit a quick reference guide when amending their contingency plan, as described at 40 CFR 262.262(b).

Comment:  The commenter stated that, in addition to requiring an executive summary immediately for new LQGs, it finds value in eventually requiring it for all LQGs and suggested a delayed requirement date of five years from the effective date of this regulation for these LQGs to update their contingency plan to include an executive summary. (256)

Response (256):  Final rule language distinguishes between existing and new LQGs with respect to preparation and submission of quick reference guides at 40 CFR 262.262(b). EPA has also added new language at 40 CFR 262.262(c) to require that all LQGs update and submit their quick reference guides, if necessary, whenever the contingency plan is amended.

Comments:  12 commenters indicated that they would not support a requirement for existing LQGs to provide an executive summary (71, 77, 92, 107, 126/188, 128, 131, 142, 168, 191, 192; 262).

Response (71, 77, 92, 107, 126/188, 128, 131, 142, 168, 191, 192; 262):  EPA disagrees with these commenters and believes that new LQGs should be required to submit a quick reference guide, which has replaced the term "executive summary," when they first become subject to these provisions, as set forth at 40 CFR 262.262(b).

    EPA requested comment on whether an SQG should be required to develop an executive summary [now termed "quick reference guide" in the final rule] of a contingency plan.

Comment:  Ten commenters believed SQGs should not be mandated to develop an executive summary (85, 107, 126/188, 128, 131, 168, 182, 189, 219; 248). Two commenters stated that existing RCRA regulations do not require SQGs to have a contingency plan, so it makes little sense to require them to have an executive summary of a plan that is not required (168, 189). One commenter suggested that EPA specify what information is needed and make a template/form to fulfill this requirement (189, 248). One commenter stated that SQGs are usually small businesses with limited waste streams and have already made arrangements with and are inspected by local fire departments; therefore, individual states should decide if their SQGs warrant this requirement (85). One commenter believed this could overwhelm LEPCs with an influx of SQG documentation that in many cases will duplicate information already in place (107).

Comment:  Four commenters believed SQGs should develop and submit an executive summary (71, 78, 232/281; 264). One commenter indicated that submittal of an executive summary might be better suited for many generators, including SQGs (78) and another commenter suggested that all hazardous waste sites subject to contingency plan requirements, including existing LQGs, SQGs and TSDFs, prepare and submit an executive summary (264).  Yet another commenter believed that, since SQGs are already required to (attempt to) make arrangements with local authorities for emergency response, it is reasonable to also require a provision of the executive summary to the LEPC or local authorities as part of these arrangements. This commenter further noted that information inherently necessary to make such emergency response arrangements or enter into such an agreement is essentially that proposed to be included in the executive summary and would not be a burden to SQGs but would actually clarify what information they need to provide to LEPCs or local authorities to make the arrangements already required (232/281).

Comment:  A commenter providing feedback on behalf of multiple member organizations indicated that one member would support SQG development and submission of an executive summary, while the other member would not (217).

Response (general):  EPA is not making any changes to existing regulations. However, given the prevalence of SQGs and the associated potential for adverse impacts to human health and the environment, the Agency strongly encourages these facilities, as a best management practice, to develop a quick reference guide (i.e., new term for the document referred to as an "executive summary" in the proposed rule) and share this information with local emergency responders.

Section <IP_ADDRESS> - Eliminating personal information from contingency plans

Comment:  22 commenters largely supported listing only a name or, if 24 hour continuously staffed, the position along with the emergency telephone number  -  thereby eliminating unnecessary employee personal information, such as home/work telephone numbers and home addresses  -  in the contingency plan (77, 78, 82, 85, 87, 92, 93, 98, 106, 123, 126/188, 128, 131, 168, 196, 214, 217, 219, 224, 232/281, 260; 286).  One commenter stated that the existing requirement presents significant privacy concerns to its members and, given the existence of cell phones and other communication technologies, is entirely unnecessary (77). Another commenter noted that, although the proposal is somewhat ambiguous, if it means that a facility could simply list relevant employee titles, rather than names, it could be helpful (126/188). One commenter noted that the ability to only provide a staffed position, as opposed to name, be extended to LQGs that do not operate 24/7/365  -  and SGQs (168). One commenter, although agreeing with elimination of an emergency coordinator's local address, noted that addresses are used by inspectors to verify that a responder is based within a reasonable distance from the facility; therefore, if the address is removed, then a substitute mechanism must be provided to the inspector (214). One commenter believed this approach better protects emergency coordinators' privacy and security so their home address and telephone numbers are not made public in a Contingency Plan (219). One commenter recommended the preamble state the use of "telephone numbers" is inclusive of cellular phone numbers (224). One commenter recommended clarifying that the "emergency number" must be a direct contact line to either the emergency coordinator themselves or to an on-site operation center staffed continuously (232/281). Two commenters stated that, since emergency coordinators frequently change positions/contact information, it makes more sense to keep positions and titles updated rather than names and phone numbers (219, 286).

Comment:  Three commenters suggested EPA to extend this modification to SQGs as well (93, 98; 168).

Comment:  One commenter does not support the removal of the home address of the emergency personnel from the contingency plan because phone service may be interrupted during large scale events, so relevant personnel must be able to be reached at their home address. However, this same commenter supports regulations allowing for the provision of a position title and 24 hour emergency number for generators that have emergency staff onsite 24/7/365 (248).

Comment:  Three commenters opposed listing only a name or, if 24 hour continuously staffed, the position along with the emergency telephone number in the contingency plan (71, 108; 207). One commenter noted that individual names are preferable, as opposed to staffed positions which could change, so as to ensure that the appropriate staff have the necessary training and that the plans are always kept up to date (108).

Response (general):  EPA is finalizing § 262.261(d) as proposed, which includes:  (1) retaining the name of persons qualified to act as emergency coordinators, while removing references to addresses and changing the reference from home and office telephone numbers to an "emergency telephone number" and (2) adding language stating that, in situations where the generator has an emergency coordinator continuously on duty (24/7/365 facility operations), the plan may list the staffed position (e.g., operations manager, shift coordinator, shift operations supervisor, or some other similar position) as well as an emergency telephone number that can be guaranteed to be answered at all times. We believe this strikes the best balance in terms of ensuring that someone can be contacted in the event of an emergency situation while also, in the case of generators with emergency coordinators continuously on duty, offering more regulatory relief compared to existing regulations. EPA has decided it is appropriate at this time to focus on changes for LQGs only because they pose the greatest concern in matters of emergency preparedness.  Although EPA is not extending these requirements to other generator categories or to TSDFs, the Agency would encourage facilities to adopt these changes as a best management practice.

Section <IP_ADDRESS> - Alternate evacuation routes in contingency plans

Section <IP_ADDRESS>:    Request for comment to include alternative evacuation routes in contingency plans [or whether a different approach would be more effective]. EPA sought comment on whether: (1) the posting of evacuation routes and holding annual evacuation training and drills would be an effective substitute to maintaining alternative evacuation routes in the contingency plan and (2) this paragraph of the regulations should discuss shelter-in-place as part of contingency plans.

Comments:  Six commenters agreed with the requirement to include alternative evacuation routes in contingency plans (77, 92, 126/188, 185, 217; 219). One commenter stated that, if alternative evacuation routes are considered and no reasonable alternative exists, this can be identified in the plan (77). One commenter agreed with the proposal to revise language regarding alternative evacuation routes, noting established evacuation and alternative routes exist, but may not be practical in some cases  -  noting that a release of radioactive wastes (mixed wastes) may require evacuation in a direction away from prevailing winds at that time or may require sheltering in place (92). This commenter also stated that the evacuation route or sheltering action in such instances will have to be communicated by area or site-wide announcements over the public address system and that regulations need to be written to allow for allow such circumstances (92). Another commenter suggested incorporating a shelter-in-place provision for generators who have chemicals that could produce a toxic gas plume creating unsafe conditions for an immediate evacuation (185). One commenter feels as though a requirement to identify all potential evacuation routes is excessive (217). Another commenter believed it unnecessary to identify every alternative in the Contingency Plan; rather, the plan need only confirm that alternatives have been considered and identify those that are viewed as the most appropriate under certain circumstances, including potential shelter-in-place (219).

Comment: Eight commenters disagreed with requiring alternative evacuation routes in contingency plans (85, 182, 217, 225, 229, 232/281, 248; 262). One commenter believed posting evacuation routes and holding drills is sufficient in case of an emergency and that emergency responders are likely to use evacuation routes that are readily observed (217). One commenter believes the decision to require alternate routes should rest with LEPCs who know what is necessary (225). One commenter recommended replacing this requirement with a requirement to identify shelter-in-place locations in the contingency plan (232/281). Two commenters recommended a requirement to identify employee muster locations in the plan (232/281, 248). One commenter suggested requiring a map with possible exits marked (248). One commenter discouraged EPA from making these practices mandatory in the regulations in order to be consistent with the Agency's goal of providing necessary flexibility for hazardous waste generators. (262)

Comment: One commenter believed that having evacuation routes only in the contingency plan, instead of posted throughout the facility, would not be useful in an emergency (Commenter 189). This commenter also questioned the relationship between an emergency responder's determination of the most efficient and timely approach to reach the facility and potential evacuation routes, adding that, unless the emergency response crews are responding from on-site, evacuation routes should have little to no impact on the responder's choice of routes to get to the facility (189).

Response (general):  EPA understands that it may not always be possible to identify alternate evaluation routes and likewise realizes that immediate evacuation may not always be advisable due to the nature of the emergency. Nevertheless, the Agency believes that, in the majority of instances, evacuation will be the selected course of action and that it will be possible to identify an alternate evacuation route. EPA also believes that, when developing or amending contingency plans, consideration should be given to posting evacuation routes, as well as muster and shelter-in-place locations, within the facility (and/or making such information available on cell phones) and conducting periodic training/drills. These efforts would be undertaken, as necessary, in consultation with local emergency responders. Due to the varying types/varieties of wastes handled by facilities and differing physical settings in which facilities are located, however, the regulations should allow flexibility on the part of the LQG. Therefore, EPA is finalizing § 262.261(f) as proposed. With respect to commenter 189, EPA agrees with both of the points made. The Agency encourages evacuation routes to be posted or otherwise made available by various means. Although routes used by arriving emergency responders and evacuating employees may be identical in many cases, as noted by certain other commenters, this may not always be the case. The Agency did not intend to imply that these routes are always the same.

Section <IP_ADDRESS> - Electronic RCRA contingency plan app

Section <IP_ADDRESS>:   Request for comment on the usefulness of a potential electronic RCRA contingency planning application

Comment: 14 commenters largely supported an electronic RCRA contingency plan application (71, 78, 82, 85, 126/188, 159, 174, 182, 189, 217, 232/281, 248, 251; 264). One commenter thinks this system should not be required since it may not be feasible in some rural areas (85). One commenter cautioned against EPA mandating use of a specific electronic database and instead recommends requiring that LQGs contact their LEPC or local emergency response agencies and submit their contingency plan information in the format required or requested by the recipient (232/281). Another commenter requested submissions be searchable electronic documents in a central system maintained by EPA (248).

Comment: Five commenters suggested incorporating submissions of contingency plan information into the CAMEO or Tier II reporting system (71, 82, 182, 189; 217). Two commenters preferred this method rather than submitting to the LEPC directly as this how LEPCs receive information required by EPCRA (189, 217).

Comment: Three commenters opposed an electronic RCRA contingency plan application (123, 131; 219). One commenter believed EPA should not devote its resources to this effort since there already exist commercial efforts to provide contingency response information and noted that, during an emergency, power and communications may be lost or disrupted during an emergency (219).

Comment: Three commenters believed electronic submittal of contingency plans to emergency responders should be encouraged but not required (77, 217; 262). One commenter believed that, while the electronic submittal of contingency plans may be useful in some instances, it is neither necessary nor the best use of resources to develop a standardized electronic application, noting that commercial response planning guidelines and applications are currently available as are processes to convert hard copy documents to electronic formats (77). Another commenter indicated that having an electronic copy of a contingency plan could be useful for some emergency responders and a hindrance for others, noting that some counties or cities may not have the means to accept or work with an electronic copy based on funding, internet access, etc. (217).

Comment:  One commenter suggested that, in cases where electronic submissions are used, hard copy versions of contingency plans should be made available if accessibility of the electronic version could not be guaranteed during an emergency event due to the need to evacuate, the loss of power or other circumstances (77).

Comment: One commenter supported electronically submitting portions of the contingency plan, specifically the information that would be contained in the executive summary, to emergency responders and LEPCs but opposes submitting the entire contingency plan electronically as flexibility when constructing the plan may be lost if standardized and, therefore, potentially result in a less effective contingency plan (256).

Response (general):  Proposed regulations did not specify the format in which the contingency plan must be provided nor did they discuss software applications. EPA strongly encourages LQGs to work with first responders to determine whether electronic submission of contingency plans, including incorporating contingency plan information into existing software applications, is an acceptable approach either in lieu of or in addition to a hard copy submission. However, EPA believes regulations must be sufficiently flexible to allow these decisions to be made on a facility-by-facility basis; therefore, the Agency is not making any changes to proposed regulations at 262.262(a) regarding transmission of the contingency plan.

Section 4.7.7 - Safe location of emergency equipment

Section 4.7.7:  Safe locations of emergency equipment [technical changes to introductory paragraph on required equipment  -  generator flexibility to determine the most appropriate locations within the facility to locate equipment necessary to prepare for and respond to emergencies]

Comment: Eight commenters supported the proposed clarifications regarding the allowable locations for required equipment (77, 83, 85, 159, 219, 248, 260; 262). The commenters agree with the additional flexibility to determine the most appropriate locations to locate emergency response equipment. One commenter noted that examples of areas where space or exposure conditions may limit the ability to store response equipment in the immediate area where waste is generated include certain laboratories, store rooms or production areas (77). Another commenter noted that emergency response equipment and supplies do not need to be located everywhere hazardous waste is managed and that one or more centralized locations can result in better response (83).

Response:  EPA agrees with these commenters as reflected in the final rule preamble and regulatory text.

Comment: One commenter, though otherwise supportive of the proposal, believes that the proposed regulatory text omits a critical qualification discussed by EPA in the proposal (e.g., preamble language regarding location of equipment "where it can be immediately accessed without jeopardizing a timely and effective response to any emergency." The commenter expressed concern that absence of specificity in the regulations may lead to placement of emergency equipment at locations that delay or hinder its use and strongly recommended that EPA explicitly include the "immediately access" in the final regulatory text (232/281).

Response (232/281):  EPA believes discussion in the final rule preamble is sufficient to convey the Agency's intent and notes that, regardless of qualifiers used in regulatory text, generators will be responsible for determining appropriate locations of required emergency equipment and that inspectors will be able to ask generators to justify selection of these locations. EPA adds that authorized states may elect to include clarifying regulatory text that addresses the commenter's concern.

Comment:  One commenter believed the proposed rule is written such that the requirements set forth in 40 CFR 262.252(a) through (d) potentially apply to all points of generation. The commenter asserted that this is extremely problematic for facilities with multiple points of generation, such as a research laboratory, and suggested a minor change in this regard within the introductory paragraph. The commenter noted that, despite EPA's stated intention to limit application of these regulations to activities that generate hazardous waste, the proposed rule continues to refer to "site personnel" in 40 CFR 262.252(a), therefore effectively making the requirement applicable to the entire "generator site." The commenter believed this requirement is more suitable only to CAAs and acknowledged that this is the current requirement but questioned if this requirement is necessary for all CAAs, noting that this requirement appears more suitable for application to CAAs that collect waste from all of a generator's SAAs  -  described by the commenter as more resembling a "mini-TSDF" in scope. The commenter also noted that the proposal to allow an LQG to determine the most appropriate locations for emergency equipment seems to conflict somewhat with the requirement in 40 CFR 262.252(b) that a telephone be "immediately available at the scene of operations" and requested that EPA clarify this communications requirement.  Along a similar line, the commenter noted that reference to a two-way radio is somewhat archaic and asked whether a cell phone would fulfill this requirement. The commenter added that, if a cell phone can be used for this purpose whenever the area is occupied, they would have no problem applying this requirement to any 90-day accumulation area. The commenter felt that compliance with the appropriate occupancy category in the International Fire Code is likely to provide equivalent protection to the requirement in 40 CFR 262.252(d).  To this end, the commenter indicated that regulators are not generally able to determine what constitutes "adequate volume and pressure" for generator waste accumulation locations as this is generally determined by: (1) connection to a municipal water supply or other significant source of water and/or (2) conformance to local fire codes. The commenter encouraged EPA to consider how best to articulate the requirement for engineered fire suppression and control systems in accumulation areas (78).

Response (78):  Besides the introductory paragraph, EPA did not propose or finalize any changes to the remainder of 262.252  -  or to parallel language for SQGs at 40 CFR 262.16(b)(8)(ii)  -  except that the Agency has decided not to replace "facility" with "site" in the regulations; rather, the Agency is retaining use of "facility" as explained elsewhere in the responses to comments. The Agency's intent in modifying existing regulations was to clearly identify that the requirement in question applies to areas where hazardous wastes are generated and accumulated under RCRA, as opposed to storage of chemicals and substances other than hazardous wastes that are regulated under different statutes. Having said this, the preparedness and emergency procedures in question do apply to hazardous waste at CAAs, SAAs and associated points of generation. Moreover, EPA believes it is not appropriate to make a distinction between CAAs such as those that receive hazardous wastes from many SAAs versus only a few SAAs (or a single SAA) because regulations must be sufficiently flexible to accommodate various types of facilities and hazardous waste management scenarios. As for the seeming contradiction between allowing generator flexibility in determining the appropriate locations of emergency response equipment in the introductory paragraph of 40 CFR 262.252 and 40 CFR 262.252(b), insofar as a telephone needing to be "immediately available at the scene of operations," EPA believes that discussions in the final rule preamble, along with the Agency's responses to other commenters included within this document, satisfactorily clarify this communications requirement, as well as address the commenter's question regarding use of cell phones. With respect to 40 CFR 262.252(d), EPA does not doubt the potential effectiveness of International Fire Code requirements or the commenter's statement regarding how "adequate volume and pressure" are determined for water supply. However, the Agency believes a more detailed discussion of engineered fire suppression and control systems is best left to authorized states, which may establish specific requirements beyond those set forth in federal regulations.

Comment:  In order to provide greater clarity in distinguishing between a generator site and an area where hazardous waste is being managed, the commenter suggested a minor change to the introductory paragraph of 40 CFR 262.252. The commenter also requested that the proposed text regarding the generator's determining appropriate equipment locations be revised to agree with proposed text in 40 CFR 262.252(b), which would require some of this equipment (e.g., telephone) to be immediately available at the scene of operations, as opposed to any site location that the generator deems appropriate (123).

Response (123):  Based on other feedback from this commenter on the proposed rule, EPA presumes that the commenter's desire to distinguish between a "generator site" and an area where hazardous waste is being "managed" is to ensure that requirements apply only to areas where hazardous wastes are accumulated (i.e., CAAs) under RCRA, as opposed to areas where chemicals and substances other than hazardous wastes are stored. Preparedness and emergency procedures in question apply to hazardous waste at CAAs, SAAs and associated points of generation but not to storage of chemicals and substances other than hazardous wastes, which are regulated under different statutes. As for the need to revise proposed regulatory text (e.g., introductory paragraph of 40 CFR 262.252) to agree with proposed text in 40 CFR 262.252(b), EPA believes that discussions in the final rule preamble, along with the Agency's responses to other commenters included within this document, adequately address the commenter's concern.

Comment:  This commenter believed proposed §262.16(b)(8)(ii) was not clearly written, particularly as regards inclusion of language clarifying where required equipment must be kept, and noted that the parenthetical in this section appears to unintentionally exempt SQGs from having the required equipment if a storage area "does not lend itself for safety reasons to have a particular kind of equipment specified below." The commenter provided suggested new wording for this section (178).

Response (178):  Notwithstanding use of the parenthetical in proposed 40 CFR 262.16(b)(8)(ii) and the commenter's suggested revised wording, EPA believes the language, as proposed, is sufficiently clear regarding when and where emergency equipment must be kept.

Comment:  With respect to proposed §262.252 (introductory paragraph), which relates to LQGs, this commenter had a similar concern regarding the new language clarifying where required emergency equipment must be kept (178).

Response (178):  Notwithstanding use of the parenthetical in the introductory paragraph of proposed 40 CFR 262.252, EPA believes the language, as proposed, is sufficiently clear regarding when and where emergency equipment must be kept.

Comment:  One commenter stated that having equipment where waste is generated is an additional requirement and believed any changes should indicate only that the facility have emergency equipment available at or near the area of operations and available to address fires, spills or other emergency situations.  However, EPA notes that this commenter also seemed to support EPA's proposed revisions regarding emergency equipment at 40 CFR 262.16(b)(8) (214).

Response (214):  Although EPA recognizes that the Agency is now including SAAs and associated points of generation within the scope of preparedness and emergency procedures regulations, we believe such changes are necessary to further ensure protection of human health and the environment.

Comment:  Two commenters disagreed with EPA's proposed changes to regulatory text regarding location of required emergency equipment (217, 263). One commenter providing feedback on behalf of multiple member organizations indicated that one of its members does not believe it is necessary to provide generators the flexibility to determine the most appropriate locations within the facility to locate equipment necessary to prepare for and respond to emergencies (217). Another commenter stated that, while existing regulations require specific emergency equipment to be at the facility, proposed changes require that this equipment be located in all areas where hazardous waste is being generated or accumulated unless there exists justification for not having equipment in each of these areas. This commenter noted an added cost of paperwork associated with documenting justifications for the range of emergency equipment without demonstrable environmental benefit. This commenter also added that certain facilities have robust fire-protection systems, modern communication systems, spill kits at strategic locations where spills are likely (not everywhere wastes are generated) and internal procedures for emergency response in addition to the existing requirements for LQGs and SQGs (263).

Response (217, 263):  Based on comments received on the proposed rule, EPA has decided not to replace "facility" with "site" in the regulations; rather, the Agency is retaining use of "facility" as explained elsewhere in the responses to comments. The Agency's intent in modifying existing regulations was to clearly identify that the requirement in question applies to areas where hazardous wastes are generated and accumulated and to accord generators sufficient flexibility in locating equipment when satisfying this requirement. Notwithstanding other minor changes in regulatory text, we believe that the need for justification on behalf of the generator currently exists and note that it would be within the purview of inspectors to make inquiries regarding how location of equipment was determined. EPA realizes previous Agency guidance (i.e., RO 14758) indicated that preparedness and emergency procedures regulations, including development of contingency plans by LQGs, would only apply to 90-day accumulation units, otherwise known as CAAs. Irrespective of this guidance, EPA believes there are benefits to addressing areas besides CAAs, such as SAAs and associated points of generation. Throughout a facility, there may be many points of generation and associated SAAs from which hazardous wastes are routinely moved to CAAs; therefore, the potential for spills (as also noted by this commenter) exists during the accumulation and management process. Consequently, we believe that our final regulations at 40 CFR 262.252 for LQGs, as well as parallel language at 40 CFR 262.16(b)(8)(ii) for SQGs, which address these additional areas, will be beneficial in terms further ensuring protection of human health and the environment.

Comment:  One commenter indicated that language in the preamble to the proposed rule suggested the provision regarding required equipment applied not only to CAAs but also waste generation areas. The commenter noted that existing EPA guidance (i.e., RO 14758) makes it clear that this provision applies only to CAAs at LQGs and, by extension, SQGs (272).

Response (272):  EPA realizes previous Agency guidance indicated that this provision, as well as other preparedness and emergency procedures, would only apply to CAAs. As stated elsewhere in EPA's responses to other commenters included within this document, the Agency has decided that these and other provisions should apply to CAAs, as well as SAAs and associated points of generation, at both LQGs and SQGs.

Comment:  One commenter suggested adding "mobile phone" as an acceptable communication device at 40 CFR 262.252(b) as long as reception in the area is reliable and where a land line is not feasible (280).

Response (280):  EPA believes that discussions in the final rule preamble, along with the Agency's responses to other commenters included within this document, satisfactorily address the commenter's question regarding use of a "mobile phone."

Response (overall):  EPA believes the final rule preamble and regulatory text, as well as the Agency's responses to other commenters included within this document, satisfactorily addresses all comments regarding 40 CFR 262.16(b)(8)(ii) and 40 CFR 262.252 for SQGs and LQGs, respectively.

Section 4.7.8 - Meaning of "immediate access"

Section 4.7.8:  Meaning of "immediate access" to communications or alarm systems [whether it's clearly understood or whether additional clarity is necessary]  -  Agency requested comment on the usefulness of modifying this language.

Comment:  Six commenters supported EPA's clarification of the meaning of "immediate access" to communications or alarm systems (77, 85, 123, 232/281, 248; 262). Comment:  One commenter noted that the parenthetical associated with the term "immediate access" should probably read "i.e." rather than "e.g.," as is currently written (85). Another commenter, while supporting the intent of the proposed revision in the context of internal communication for employees directly handling hazardous waste, is unsure whether the additional words "direct or unimpeded access" provide sufficient clarification of this issue. The commenter noted that generators have asserted that communication devices open to all employees in a facility would meet this standard.  The commenter suggests that EPA consider additional explanatory wording, such as "...direct or unimpeded access from the workstation where the hazardous waste activity is being performed..." (232/281).

Response (85, 232/281):  EPA believes the intent of regulatory text is clear despite the suggested editorial change. EPA also believes discussion in the final rule preamble is sufficient to convey the Agency's intent and notes that generators will be responsible for ensuring that they have immediate access to an internal alarm or emergency communication device; moreover, inspectors will be able to ask generators to provide clarification in this regard. EPA adds that authorized states may elect to include clarifying regulatory text that addresses the commenter's concern.

Comment:  One commenter stated that, under current RCRA regulations, some regulatory agencies have indicated that a land-line telephone must be located in the Central Accumulation Area (CAA) and that a cell phone is not an acceptable alternative. This commenter suggested that the list of devices should specifically include a cell phone and other wireless devices as being acceptable alternatives along with a telephone and two-way radio as this will prevent the unnecessary installation of land-line telephones in hazardous waste storage areas (187). Another commenter requested clarification whether a cell phone satisfies the requirement for immediate access to an alarm or communication device and also seemed to pose a question regarding cell phone use in an atmosphere where mixtures of flammable hazardous substances and air exceed the lower explosive limit (214). One commenter suggested adding "mobile phone" as an acceptable communication device at 40 CFR 262.254(b) as long as reception in the area is reliable and where a land line is not feasible (280).

Response (187, 214; 280):  EPA realizes that cell phones are a useful and widespread means of communication, however, as noted by another commenter, there may be situations, such as a widespread emergency, where cell phone use is compromised (e.g., no service available). EPA also takes note of the above commenter's statement regarding cell phone use and, as we presume, the potential for ignition of flammable vapors. The Agency adds that there may instances during an emergency where reliance upon a land-line phone, which would be considered an example of required equipment, may not be advisable at a CAA or any other area where hazardous waste is managed (i.e., hazards present at the location of a land-line phone). The Agency believes that cell phones should not be relied upon solely to satisfy this requirement but could work well in combination with other communication devices such as, for example, a two-way hand-held radio.

Comment:  One commenter stated that the practice in certain parts of industry is to maintain emergency equipment immediately outside of "permanently enclosed areas" designed to maintain a negative pressure for the collection of volatile organic compounds (to ensure compliance with the Clean Air Act). For this reason, the commenter had concerns regarding the proposal to define "immediate access" as "direct and unimpeded access" because inspectors might determine that such equipment is not "direct and unimpeded," even when it is "immediately accessible."  This commenter suggested that EPA affirm in the final rulemaking that an unlocked door or other entrance to a room does not "impede access" to emergency equipment (240).

Response (240):  Under the scenario described by this commenter (i.e., presence of "permanently enclosed areas"), which represents but one example of the types of facilities and hazardous waste management scenarios encountered at facilities, it would be advisable for emergency equipment to be located outside such areas. Indeed, final regulations at 40 CFR 262.16(b)(8)(ii) and 40 CFR 262.252 for SQGs and LQGs, respectively, allow a generator flexibility to determine the most appropriate locations within the facility to locate equipment necessary to prepare for and respond to emergencies. EPA also notes that requirements associated with ensuring immediate access to communications or alarm systems at 40 CFR 262.16(b)(8)(ii) for SQGs and 40 CFR 262.252 for LQGs would also apply.

Response (overall):  EPA believes the final rule preamble and regulatory text, as well as the Agency's responses to other commenters included within this document, satisfactorily address all comments regarding 40 CFR 262.16(b)(8)(iv) and 40 CFR 262.254 for SQGs and LQGs, respectively.
Section 4.7.9 - Posting information by telephone (SQGs)

Section 4.7.9:  Require certain information be posted "next to the telephone" [or in areas directly involved in the generation and accumulation of hazardous waste]

Comment: Six commenters agreed with the proposed changes to the phone posting requirements (85, 182, 217, 220, 232/281; 248). One commenter believed the posting of emergency contact information at hazardous waste generation/storage points and in public areas such as break rooms is the most logical choice for the proposed changes, also noting that most facilities allow their employees to have a personal device on their person and that, for this reason, personnel may not look for a landline to contact authorities in the event of an emergency (182). A commenter providing feedback on behalf of multiple member organizations indicated that one member believes emergency contact information should be posted at other areas in the facility, not just the generation and accumulation areas, but otherwise supports this proposed change for SQGs. Another member also believed the posting of emergency contact information at hazardous waste generation/storage points and in public areas such as break rooms is the most logical choice for the proposed changes  -  also noting that most facilities allow their employees to have a personal device on their person and that personnel may not look for a landline to contact authorities in the event of an emergency (217). One commenter supported EPA's proposed clarification of the location of emergency telephone information in proximity to hazardous waste handling activities. This commenter that, although "911" service is prevalent, some facilities still use telephone systems that require first dialing a digit (most commonly "9") to access an outside line prior to dialing "911" and that this procedure may not always be followed during an emergency.  The commenter also noted that many hazardous waste incidents at SQGs may fall into an "in-between" category needing quick involvement by trained facility staff but not requiring outside intervention in the form of public emergency response agencies. For this reason the commenter believed telephone posting of the emergency coordinator contact information is still appropriate and needed to avoid unnecessary activation of the public emergency response system for hazardous waste-related incidents that may be safely and fully handled by an SQG itself (232/281). Another commenter agreed that the proposed revision will clarify the requirements and address modern telecommunications equipment but believed that it is important to post information near where hazardous waste is generated and stored because: (1) dialing 911 will not connect the caller to emergency services at many facilities because a prefix digit must be dialed first; (2) several facilities have emergency response staff onsite and such emergency response staff are reached by dialing a non-911 number and (3) dialing 911 in an emergency may not be second nature to certain facility employees (248).

Response (182, 217, 232/281; 248):  EPA agrees with the points raised by these commenters and understands that generators would take into account factors such as facility-specific dialing procedures when complying with this provision. The Agency believes that proposed revisions offer additional flexibility and notes that nothing in the regulations precludes this information from being posted at other locations throughout a facility.

Comment: Three commenters believed EPA should reconsider the requirement to post emergency information "where hazardous waste is generated and accumulated" (99, 189; 242). Two commenters noted that the first step facility staff will take in the event of an emergency is evacuation, which would render such postings ineffective (99, 242). One commenter believed that it would be unsafe to require this information only be posted where hazardous waste is generated and accumulated and that the facility should be allowed to determine additional appropriate location(s) for posting the required information (189).

Response (99, 189; 242):  EPA notes that posting information where hazardous waste is generated and accumulated is an additional location option accorded by this proposed revision and adds that nothing in the regulations precludes this information from being posted at other locations throughout a facility.

Comment:  One commenter seemed to question the requirement to post information "next to the telephone" and next to the "areas where waste is generated." (214)

Response (214):  Proposed revisions state that information must be posted next to telephones or in areas directly involved in the generation and accumulation of hazardous waste; moreover, nothing preclude a facility for posting this information at other locations within a facility.

Comment:  Two commenters, noting that cell phones have become ubiquitous, requested the option of keeping emergency information on personal devices such as cell phones. (99, 242)

Response (99, 242):  EPA believes that nothing in the regulations precludes storing this information on cell phones; in fact, this practice would further ensure that information is available in the event an emergency.

Comment: One commenter noted that, during a widespread emergency (September 11, 2001 attacks cited as an example), cell phone reliability could be severely hampered by heavy call volume. (273)

Response (273):  EPA agrees that this possibility exists, which why cell phones should not be relied upon solely to satisfy the requirement for posting of information.

Comment: One commenter noted that, if an SQG already has an emergency plan that has this information readily available, then posting it next to the phone should not be required. This commenter further noted that, in the event of an emergency, the emergency responders will be contacted regardless of whether the emergency coordinator is present and the coordinator information is in the emergency response plan. The commenter discouraged EPA from making these practices mandatory in the regulations in order to be consistent with the Agency's goal of providing necessary flexibility for hazardous waste generators. (262)

Response (262):  EPA notes that existing regulations already mandated that information be posted next to the telephone and that proposed revisions offer additional flexibility to the generator. Nothing in the regulations precludes this information from being posted at other locations throughout a facility or otherwise made available.

Response (overall):  EPA is finalizing 40 CFR 262.16(b)(9)(ii) as proposed.
Section 4.7.10 - Cleanup by a contractor (SQGs)

Section 4.7.10:  Allow containment and cleanup to be conducted by a contractor

Comment: 12 commenters largely agreed with the proposed changes to allow SQGs to hire a contractor to perform any cleanup of a hazardous waste spill at their facility (85, 116, 131, 152, 174, 214, 220, 232/281, 240, 248, 262; 289). A commenter suggested adding language to clarify that contractors may assume liabilities typically assigned to generators if included in the terms of their contract (116). Two commenters stated that the generator is ultimately responsible for ensuring a proper response and cleanup (174, 214). Two commenters believed the existing regulatory language already allows for contractors to perform clean-up at SQGs (214, 232/281). A commenter added that the generator should provide the contractor with adequate information on the nature of the waste to allow the contractor to determine the correct worker protection, waste handling and containment measures (214). One commenter noted that the clarification allowing contractors to clean up waste releases particularly assists small communities that might not have the resources or infrastructure to otherwise do so  -  adding that this may prevent health hazards by allowing expedient removal of mishandled or spilled waste (289).

Response (85, 116, 131, 152, 174, 214, 220, 232/281, 240, 248, 262; 289):  EPA appreciates the statements and recommendations provided by certain commenters (116, 174, 214, 232/281; 289) regarding contractor liability, generator responsibility, the need to provide adequate waste-related information to ensure worker protection and resultant benefits to small communities, as well as the belief that existing regulations already allow contractors to perform cleanup.

Comment:  One commenter indicated that the proposed language appears to allow SQGs to solely rely on an outside contractor for the management of spills and that doing so (i.e., SQG waits for contractor to address as opposed to immediately undertaking response activities themselves) could delay spill response and be detrimental to the facility, environment and public health (207).

Response (207):  While EPA understands the commenter's concern, the Agency believes that proposed language simply offers an SQG that opportunity to use contactors and does not in any way preclude the SGQ from responding fully or in part. The decision whether not to use a contractor rests with the facility, which has the choice to immediately address a situation if it so chooses.

Comment:  A commenter provided feedback for more than one its member organizations that indicated varying opinions regarding EPA's proposed change to existing regulations. There was support for EPA's proposed clarification that contractors can be used for site cleanups, although it was recommended that EPA consider adding language clarifying that contractors may assume liabilities typically assigned to generators, if included in the terms of their contract with a generator, such as waste characterization, management and transportation. It was also recommended that EPA clarify how contractors and LEPCs are expected to interact with one another within the context of emergency preparedness and planning. However, concern was expressed that the existing (original) language required the SQG to physically clean up the spill but that a regulatory agency (EPA or the states) would not take enforcement action if a contractor cleaned up the spill rather than the SQG. EPA's proposed change was not deemed necessary. A cautionary example was cited in terms of allowing all potential containment of hazardous waste to be contracted out, which involved a situation where a drum tips and leaks, with the leak heading towards a storm drain. In this case, it was implied that immediate action is preferable to stop/contain the release rather than calling a contractor and waiting for the contractor to arrive, which may not happen soon enough if the facility is located in a remote area (217).

Response (217):  EPA notes that the final rule is intended to convey that the facility has an option of whether or not to procure the services of a contractor to respond to spills. This decision rests with the SQG.

Comment:  One commenter suggested that EPA should officially allow both SQGs and LQGs to contract spill cleanup services with third parties instead of maintaining trained in-house personnel (152).