State Director in authorized States) checking the box for withdrawing
from 40 CFR part 262, Subpart K. Then, the eligible academic entity's
laboratories would no longer be subject to Subpart K and would be
subject to the existing applicable generator regulations. Once the
Agency receives the Site Identification Form from the eligible academic
entity indicating that it is withdrawing from the Subpart K program,
the Agency expects that the eligible academic entity will be in
compliance with the 40 CFR part 262 applicable generator requirements
(or 40 CFR 261.5 for CESQGs).
    Finally, EPA sought comment on whether the Regional Administrator
(or State Director in authorized States) should provide the eligible
academic entity with a written receipt of the one-time notice before it
could manage its unwanted materials in accordance with the Subpart K
requirements. Most commenters did not want to wait for EPA or the State
to provide a written receipt of the one-time notice before managing
their unwanted materials under these alternative generator
requirements; they argued that it would cause delay and confusion.
Other commenters pointed out that many States already respond in
writing when the Site Identification Form is received. Therefore, we
are not requiring that the Regional Administrator (or State Director in
authorized States) provide a written receipt of the one-time notice
before the eligible academic entity can manage its unwanted materials
under the Subpart K requirements. (For more information on how CESQGs
notify, see section III.C.9 and Sec.  262.203.)
2. Labeling Standards
    Because today's rule provides laboratories owned by eligible
academic entities with flexibility in where and when to make the
hazardous waste determination, labeling requirements for unwanted
materials in the laboratory are needed. For example, labeling is
critical to ensure that non-laboratory personnel, such as firefighters
can quickly ascertain the hazardous materials that are in the
laboratory in case of an emergency. In order to provide the necessary
information to laboratory personnel, EH&S staff, inspectors, emergency
responders, and others, today's rule includes performance-based
labeling requirements that are informative, yet flexible to fit the
varying situations at eligible academic entities.
    The labeling requirements in the proposed rule consisted of two
sets of performance-based labels. First, the proposal required that a
label be affixed to or physically accompany the container of unwanted
material. This label was intended to convey the most essential
information that one needs to know about the contents of the container
in an emergency situation. It also was intended to convey the notion
that ``unwanted material'' was no longer wanted in the laboratory.
Thus, the proposal required that this label include the words
``unwanted material,'' as well as sufficient information to alert
emergency response personnel to the container's hazards or contents.
    The second part of the proposed labeling requirements provided
flexibility by allowing information to be ``associated with the
container.'' We proposed that this label contain sufficient information
for the RCRA-trained professional (which has been changed to trained
professional in today's final rule) to make the hazardous waste
determination. At a minimum, the information ``associated'' with
containers of unwanted materials

was intended to ensure that a hazardous waste determination of the
contents can be made by a trained professional. Additionally, the
proposal required that the date when the unwanted materials first began
accumulating in the container be associated with the container, so that
EH&S staff or other trained professionals would know when to remove the
containers of unwanted materials from the laboratory. The preamble to
the proposed rule indicated that the accumulation start date and
information sufficient to make a hazardous waste determination could be
on the label that is affixed to or physically accompanies the
container, but must, at a minimum, be associated with the container.
    In the preamble to the proposed rule, we discussed examples of how
the required information might be ``associated'' with a container. One
example is that laboratory personnel could number containers of
unwanted material and create an accompanying spreadsheet containing
sufficient information to identify the material for each numbered
container of unwanted material that would be given to the trained
professional to make the hazardous waste determination. Another example
is that laboratories could affix a bar code to each container of
unwanted material that when scanned would provide the necessary
information to make the hazardous waste determination of the unwanted
material. Alternatively, laboratory personnel might choose to include a
printed inventory of the unwanted materials and the associated
information for each container that would provide the necessary
information for a trained professional to make the hazardous waste
determination.
    The Agency received a large number of comments from academia in
support of the performance-based labeling requirements in lieu of
prescriptive requirements. In keeping with the original intent of the
rulemaking, today's final rule maintains the performance-based two-
tiered labeling structure; however, we have revised the labeling
requirements to take into account public comments received on the
proposal.
    Specifically, we have revised the proposed labeling requirements in
today's final rule to clarify that the first part of the labeling
requirement requires the label to be ``affixed or attached to'' the
container of unwanted material rather than be ``affixed to or
physically accompany'' the container. We believe this modified language
provides clarity and ensures that, during the accumulation period in
the laboratory or during on-site transfer, the identifying information
will not be inadvertently separated from a container of unwanted
material and thus the contents of any container can be quickly
identified in an emergency situation. Examples of labels that are
``affixed or attached to'' containers of unwanted materials are
stickers that have been affixed on the container by adhesive, or labels
that are attached to a small container of unwanted material (i.e., too
small for an adhesive label) by wire or a piece of tape.
    Many commenters expressed concern about the proposed requirement to
label containers with the words ``unwanted material,'' preferring a
more flexible labeling requirement. As one commenter stated, ``The
purpose of adding an additional label [unwanted material] to a reagent
chemical container, for instance, is to differentiate it from others
that a lab still wants or needs in their work so that the pickup crew
or contractor knows which containers to take. The exact terminology is
not important to meeting this goal.'' In response to this and other
similar comments, in the final rule, we are requiring that containers
be labeled with the words ``unwanted material'' or another ``equally
effective term'' that is used consistently by the eligible academic
entity and is identified in Part I of the eligible academic entity's
LMP. Examples of an ``equally effective term'' include, but are not
limited to, ``laboratory waste'' or ``chemical lab waste.'' We believe
this approach is responsive to the comments in that it provides each
eligible academic entity with flexibility, yet conveys the basic
information that the material is no longer needed or wanted in the
laboratory. To this end, if an eligible academic entity elects to use
another equally effective term in lieu of ``unwanted materials,'' that
term must address and have the same meaning as ``unwanted material,''
and is subject to the same requirements in Subpart K for ``unwanted
material.'' Additionally, if an eligible academic entity chooses to use
an equally effective term instead of ``unwanted materials,'' the
eligible academic entity must use the term consistently in all its
laboratories that are covered by its LMP. It would not be acceptable
for each laboratory at an eligible academic entity to be free to use
its own term of choice because the use of different terms at the same
eligible academic entity would cause confusion for implementers and
enforcers.
    A number of commenters opposed the proposed requirement that the
label that is ``affixed to or physically accompany'' the container
provide sufficient information to alert emergency responders to the
contents or the hazards of the container, arguing that the requirement
is unnecessary and burdensome.\6\ EPA disagrees with these comments and
believes that maintaining this information is necessary to protect the
safety of workers, students, emergency responders, and others that may
come into contact with containers of unwanted materials. For safety
purposes, emergency responders need to have a quick way to assess the
contents of a container. However, we understand that at least part of
the concern was the use of the term ``hazards,'' in that it caused some
confusion among commenters, many of whom thought that the Agency was
proposing to require Department of Transportation (DOT) hazard classes
or National Fire Protection Agency (NFPA) chemical hazard labels to be
on the label that must be ``affixed to or attached to'' the container.
This was not the Agency's intent. To address this misunderstanding in
today's final rule, we have clarified the requirement that the label
contain sufficient information to alert emergency responders to the
contents of the container. This performance-based standard could be met
by including information, such as the name of the chemical(s) in the
container or, alternatively, a descriptive phrase, such as ``inorganic
solvents,'' ``halogenated organic solvents,'' or ``water reactive
chemicals.'' This requirement is flexible, yet provides sufficient
information to emergency responders in an easily understandable manner
that would allow them to ascertain the potential dangers associated
with the contents of containers in the laboratory, while being
protective of health and safety.
---------------------------------------------------------------------------

    \6\ As discussed previously, the requirement that the label be
``affixed to or physically accompany'' the container has been
changed in the final rule to that the label must be ``affixed or
attached to'' the container.
---------------------------------------------------------------------------

    As proposed, today's final rule requires that each container of
unwanted material must have associated with the container the date that
the unwanted material begins accumulating and information sufficient to
make a hazardous waste determination. We are allowing this information
to be ``associated with'' the container, as opposed to requiring that
it be ``affixed or attached to'' the container, in order to facilitate
the use of technology in conveying this information. This could be done
using an electronic spreadsheet, a bar code, or some other printed
inventory of containers (see previous examples of ``affixed or attached
to'' or

``associated'' labels). We also point out that this labeling
requirement maintains the flexibility of the proposed rule, such that
an eligible academic entity can use the container labeling approach
that works best for the institution. That is, while it is acceptable to
have the accumulation start date and information sufficient to make a
hazardous waste determination ``associated with'' the container, some
eligible academic entities may prefer to have all required container
labeling information in a single place. Therefore, it is also
acceptable to place the accumulation start date and the information
sufficient to make a hazardous waste determination on the label that is
``affixed or attached to'' the container. We have reworded the
container labeling regulations accordingly to reflect the intended
flexibility and to indicate that, at a minimum, the accumulation start
date and information sufficient to make a hazardous waste determination
must be ``associated with'' the container, but that it can be on the
label that is ``affixed or attached'' to the container, if that is
preferred.
    Many commenters had concerns about the burden imposed by the
requirement to associate the accumulation start date with containers of
unwanted material because it is not required in the current satellite
accumulation area regulations. We maintain that this requirement is
necessary to ensure that accumulation time limits in the laboratory are
complied with for containers of unwanted material. Some commenters
argued that alternatively, EPA should add a requirement to log regular
removals from each laboratory in lieu of the container ``dating''
requirement. We disagree with this comment because we believe that the
suggested method would not provide the information necessary to verify
that a particular container had not been accumulating unwanted material
for more than six months in the laboratory and, therefore, would not
allow EPA or an authorized State to determine whether the laboratory
was in compliance with Subpart K. Therefore, the dating requirement for
each container of unwanted material has been retained in today's final
rule.
    Finally, we have retained the requirement from the proposal that
the label associated with the container must contain information
sufficient to make a hazardous waste determination. As discussed above,
this requirement provides flexibility to eligible academic entities in
that this information can be on the label that is ``affixed or attached
to'' the container, but it must at least be on the label that is
``associated with'' the container. However, we stress that
``information sufficient'' to make a hazardous waste determination,
whether that information is ``associated with'' or ``affixed or
attached to'' containers of unwanted materials, must ensure that a
hazardous waste determination of the contents can be made. Examples of
information sufficient to make a hazardous waste determination include,
but are not limited to: the name and/or description of the chemical
contents or composition of the unwanted material, or, if known, the
product of the chemical reaction, whether the unwanted material has
been used or is unused, and a description of the manner in which the
chemical was processed, if applicable.
    In summary, today's rule finalizes the proposed performance-based
two-tiered labeling structure, but has modified it to address a number
of comments received on the proposal. The first part of the final
labeling requirement consists of information that must be ``affixed or
attached to'' the container. The information must consist of the words
``unwanted material'' or another equally effective term that is used
consistently by the eligible academic entity and is identified in Part
I of the eligible academic entity's LMP. Additionally, the label must
contain sufficient information to alert emergency responders to the
contents of the container. The second part of the final labeling
requirement consists of information that must be ``associated with''
the container in some manner, which could include affixing or attaching
it to the container. The information required includes the date that
unwanted material first begins accumulating in the container, and
information sufficient to allow trained professionals to determine
whether the unwanted material is a solid and hazardous waste, as well
as assign the proper hazardous waste code(s), pursuant to Sec.  262.11.
For more detail on specific labeling requirements for when volume
limits are exceeded in the laboratory and after hazardous waste
determinations are made, see section III.C.5, Removal Frequency of
Unwanted Materials and Section III.C.6, Making the Hazardous Waste
Determination, respectively.
3. Container Standards
    When accumulating unwanted materials in the laboratory, proper
container management is essential to protect human health and the
environment. We proposed performance-based container management
standards, requiring that the containers be stored to prevent leaks,
spills, emissions to the air, adverse chemical reactions, and to avoid
dangerous situations that may result in harm to human health and the
environment. The proposed container management standards also included
two specific standards as a means to achieve these goals: (1)
Containers must be kept in good condition and damaged containers must
be replaced; and (2) containers must be compatible with their contents.
    In the preamble to the proposed rule, we solicited comment on two
alternative approaches for container management. First, we requested
comment as to whether the rule should include more specific container
management requirements in the regulations, potentially going beyond
what was proposed. In the preamble, we included some examples of
specific requirements we were considering, such as secondary
containment and imposing a minimum safe distance for the storage of
incompatibles. Another example that was discussed in the preamble was
requiring that containers of unwanted material always be closed during
storage, except for cases of in-line collection. An in-line collection
system is a piece of laboratory equipment, such as a high performance
liquid chromatograph (HPLC) that is directly connected to a container
that collects unwanted material, including hazardous waste, typically
by tubing. The tube carries the waste from the equipment directly into
the container.
    The second alternative approach for container management that we
requested comment on was the concept of a ``working container.'' In the
preamble to the proposal, a working container was defined as a small
container (one gallon or less), managed under the control of a
laboratory worker and used at a bench or work station, whose contents
are emptied into a container of unwanted material at the end of the
procedure. Similar to the previous alternative, we indicated that if we
added ``working container'' to the final rule, we would also add a more
specific requirement that any container of unwanted material that does
not fit the definition of working container, be closed at all times,
except when necessary to add or remove unwanted materials.
    We received many comments on the proposed container management
standards. Most commenters were supportive of the performance-based
container management standards in lieu of the more prescriptive
standards. Commenters argued that performance-based container
management standards

would allow them the flexibility to tailor the standards to laboratory-
specific operations. On the other hand, a few State commenters
preferred more prescriptive container management standards as they
found them easier to enforce than performance-based standards. However,
we decided to maintain the performance-based container standards
because we believe they are protective of human health and the
environment, while providing flexibility to eligible academic entities.
    Today's rule finalizes the proposed container management standards
with one minor change and adds a new requirement. The requirement that
eligible academic entities must properly manage containers of unwanted
material to assure safe storage of the unwanted materials, to prevent
leaks, spills, emissions to the air, adverse chemical reactions, and
dangerous situations that may result in harm to human health or the
environment has remained the same from proposal. Similarly, containers
must be compatible with their contents. A minor clarification was added
to the requirement that damaged containers be replaced. Several
commenters requested that the Agency add language clarifying that
replacing damaged or degraded containers is not the only method of
reducing their threat. We agree and have added the requirement in the
final rule that damaged or degraded containers be replaced, overpacked,
or repaired, in order to prevent releases of the container's contents
into the environment. An example of overpacking a container is taking a
damaged container of unwanted materials and placing it into a second
container in good condition and then packing the second container with
absorbent filler similar to the practice of lab-packing. An example of
repairing a damaged container would be if a small leak appears in the
cap of a container of unwanted material, and a laboratory worker
covered the broken cap with a polymer film.
    Many commenters also provided comments in support of the concept of
a ``working container,'' although a few commenters were opposed to
allowing a ``working container'' in the final rule. Opponents believed
that the approach is not protective of the environment, while
supporters felt that the prescriptive requirement that containers be
kept closed, except when adding or removing waste, which we said would
be added if a working container provision were added to the final rule,
is easier to enforce. In addition, commenters in support of adding a
working container wrote that this concept ``recognizes the fact that
many unwanted laboratory materials are actively accumulated in small
containers at a bench, work station, or fume hood.'' Academic and State
commenters supported the inclusion of a working container provision
because it allows containers that are in use for collecting unwanted
materials to be open while the experiment is running, while at the same
time it provides protection by requiring that non-working containers be
closed at all times, except when adding, removing, or consolidating
unwanted materials.
    After evaluating all of the comments, we have decided to include a
provision in the final rule allowing laboratories to use ``working
containers.'' As discussed in the definition section above (section
III.B.3), a working container is defined in the final rule as a small
container (i.e., two gallons or less) that is used at a laboratory
bench, hood, or other work station in order to collect unwanted
material from a laboratory experiment or procedure. We have added to
the container management standards a requirement that a working
container may be open until the end of the procedure or work shift, or
until it is full, whichever comes first, at which time it must either
be closed or the contents must be emptied into a container that is
closed after the contents of the working container are added.
    In reference to the other containers of unwanted materials in the
laboratory (i.e., non-working containers), several commenters opposed
the requirement that these non-working containers remain closed, except
to add or remove unwanted material. We disagree with these commenters.
We believe that the requirement that containers remain closed, except
when adding, removing, or consolidating unwanted material is
straightforward and is protective of human health and the environment.
Requiring that containers remain closed, except in certain instances,
will prevent or mitigate accidents in the laboratory that could
otherwise lead to spills or releases.
    Commenters identified two additional situations (besides working
containers) where they believed a requirement to keep containers closed
is problematic. One commenter stated, ``* * * tightly capping
containers after addition of waste is sometimes impractical and
dangerous. Capping systems should be allowed which preclude excessive
evaporation while providing for displacement of air while filling from
in-line systems such as an HPLC or allow pressure relief from wastes
which have not fully reacted.'' The comment about ``in-line''
collection of unwanted materials is consistent with what the Agency has
heard over the years through our Project XL with the three New England
colleges and universities, as well as through public meetings. In many
cases, automated laboratory equipment will shut down if air is not able
to escape from an in-line collection system because of a build-up of
pressure. Another commenter stated, ``* * * that the closed container
rule may also have a negative effect by creating a compromised
container in certain situations. Chemical reaction residues may react
slowly over several days, thus building up pressure in a container. The
semiconductor etching solution known as ``piranha solution'' is one
example. Proper management of these solutions requires that the
container be able to safely vent the excess pressure.''
    In response to the two public comments above, we have modified the
container management regulations to add these two additional situations
(besides working containers) in which containers are not required to be
completely closed, because in these two situations keeping a container
of unwanted materials closed may be problematic. Specifically, the
final rule allows containers to be vented when it is necessary (1) for
the operation of laboratory equipment, such as in-line collection, and
(2) to avoid dangerous situations, such as the build-up of extreme
pressure. Thus, as we have explained, we have determined that a
combination of both performance-based and prescriptive approaches (as
it relates to whether containers must be kept closed) is more
protective of human health and the environment than performance-based
requirements alone. The Agency believes it is preferable to maintain
the requirement that containers remain closed, except when adding,
removing or consolidating unwanted material in most instances, while
allowing for a few specific instances in which it is not appropriate,
rather than to eliminate the requirement for closed containers
altogether. This is because such an approach provides the flexibility
in specific situations where commenters have shown that requiring
closed containers is inappropriate and does not compromise protection
for all the other containers of unwanted materials that have no cause
to be open. Furthermore, this approach is simpler for an eligible
academic entity to implement and is more easily enforceable.
    In summary, today's final rule contains container management
standards that require that containers be managed to assure the safe
storage of the

unwanted material to prevent leaks, spills, emissions to the air,
adverse chemical reactions, and dangerous situations that may result in
harm to human health or the environment. Specifically, today's final
rule requires that containers be maintained and kept in good condition
and that damaged containers be replaced, overpacked, or repaired.
Additionally, containers must be compatible with their contents to
avoid reactions between the contents and the container and must be made
of, or lined with, material that is compatible with the unwanted
material so that the container's integrity is not impaired. Finally,
containers of unwanted material must be kept closed at all times, with
three exceptions: (1) When adding, removing or consolidating unwanted
material, (2) when using working containers, which may be open until
the end of the procedure or work shift, or until they are full,
whichever comes first, and (3) allowing containers to be vented if
necessary for the proper operation of laboratory equipment, such as
with in-line collection, or to prevent dangerous situations, such as
build-up of extreme pressure.
4. Training Requirements
    The Agency intends to provide flexibility in the content and method
of training for laboratory workers and students, while ensuring that
unwanted materials are properly managed and that an eligible academic
entity is in full compliance with the Subpart K requirements. Thus, EPA
has included performance-based standards in today's final rule for
training of laboratory workers and students.
    EPA proposed that under Subpart K a college or university be
required to provide training or instruction to all individuals working
in the laboratory. Specifically, the proposal required that laboratory
workers be trained commensurate with their duties so they understand
the requirements of Subpart K and can implement them to ensure the
laboratories' compliance with the requirements of the rule. In
addition, we proposed that students in a laboratory where unwanted
material is generated must receive instruction relevant to their
activities in the laboratory. We proposed that instruction may include
proper container labeling, collection procedures for unwanted material,
and emergency response procedures. Further, the proposal required that
on-site transfers of unwanted materials (which ultimately may prove to
be hazardous wastes) and the hazardous waste determination could only
be conducted by RCRA-trained individuals (called ``trained
professionals'' in the final rule). The proposal indicated that a
college or university could provide training and instruction for
laboratory workers and students in a variety of ways, including, but
not limited to, instruction by the professor or laboratory manager
before or during an experiment, formal classroom training, electronic
or written training, on-the-job training, or written or oral exams.
Finally, the proposal required that a college or university that is an
LQG must maintain training records for the laboratory workers that are
sufficient to determine whether such workers have been trained.
    Many commenters expressed general or partial support for the
proposed performance-based training and instruction requirements, in
lieu of prescriptive training requirements. However, many commenters
requested that the training requirements be made more performance-based
and include greater flexibility in training approaches (e.g., use of
postings and signs). In contrast, a few commenters expressed support
for a more prescriptive approach to training and instruction, including
a clear and concise required curriculum for RCRA training in order to
make the Subpart K requirements more meaningful.
    We maintain that performance-based training requirements are
appropriate for laboratory workers and students. Eligible academic
entities should have the flexibility to offer training to laboratory
workers and students through their choice of an effective method,
provided the information is sufficient and thorough enough to ensure
proper management of the unwanted materials by laboratory personnel in
order to avoid dangerous situations. However, EPA disagrees that merely
posting a sign would adequately instruct laboratory workers and
students on the proper and safe management of unwanted materials,
believing that some active training is necessary to ensure that all
laboratory personnel fully comprehend their duties and assignments with
respect to unwanted materials management. As stipulated in the proposal
and supported by comments, today's final rule maintains that training
methods may consist of a variety of approaches, including formal
classroom or electronic on-line training, on-the-job training, or
instruction by a professor or manager. Use of postings or signs may
supplement and serve as a reminder of the more formal training, but
does not itself constitute ``training'' for the purposes of today's
final rule. While we do not believe the use of postings or signs alone
constitute ``training,'' EPA believes that the use of signs and
postings to supplement and reinforce the knowledge gained from the
required training program would be beneficial. Training must be
sufficient to enable individual laboratory workers and students in the
laboratory to conduct their duties in an environmentally safe manner
and in accordance with all applicable regulations.
    Many commenters stated that all training and instruction should be
commensurate with the duties and activities of the personnel,
irrespective of their status as students or laboratory workers. We
concur with these commenters and thus the final rule has been modified
to reflect that principle. Therefore, as opposed to the proposed rule,
which distinguished between training for laboratory workers and
instruction for students, today's final rule requires that both
laboratory workers and students be trained commensurate with their
duties. Therefore, commensurate training constitutes training aligned
with an individual's assigned duties and the degree of involvement with
the management of the unwanted materials. EPA believes that training
commensurate with ones duties should correspond with the level of
knowledge or practical application needed by individuals to perform
their assigned functions or fulfill their job or enrollment
classification (i.e., professor, researcher, graduate student,
undergraduate student) within an eligible academic entity.
    We believe that training commensurate with the duties for students
constitutes familiarization or transference of knowledge to perform
tasks and assignments in the laboratory in a safe and environmentally
sound manner for unwanted materials handling, in accordance with the
Subpart K requirements. Specifically, students conducting experiments
will come in contact with and use a variety of chemicals which may
potentially become hazardous waste following experimentation or may
react adversely if incorrectly stored or managed. Students in a
supervised classroom setting generally would require less training than
students in a research setting. In a teaching laboratory, containers
for the unwanted materials that are generated during an experiment are
typically pre-labeled by the laboratory instructor. Therefore, students
in a supervised classroom setting should be trained to place the
products of experiments in the appropriate containers of unwanted
materials. On the other hand, students conducting research where such

containers are not provided should be trained to store unwanted
materials in containers to minimize risk and label containers with the
words ``unwanted materials,'' or another equally effective term, so
that EH&S staff know that the containers are not longer wanted, as well
as the contents of the container and the accumulation start date. There
is also the potential for dangerous or hazardous situations, such as
explosions, fires, spills, or other hazards from mishandling chemicals
of unwanted materials which would require emergency response actions by
qualified personnel. It is not necessary that students have the
capability of an emergency response coordinator or other qualified
individual to respond and perform emergency procedures and other
remedial actions. Rather, it is sufficient for students to know how to
correctly handle and manage unwanted materials to avoid dangerous or
hazardous situations and in case of an emergency, know the correct
information or procedures to follow, such as how to contact emergency
responders and when to evacuate the laboratory.
    Training commensurate with the duties for laboratory workers and
graduate students working as laboratory workers may be more formalized
or technical instruction whereby upon completion of training, personnel
are qualified to perform the functions of their job descriptions or
assigned duties. For the purpose of Subpart K, laboratory workers must
receive training or technical instruction in direct correlation to
their individual job description or assignments. Under Subpart K, the
definition of ``laboratory worker'' includes a broad array of job
classifications with different duties, such as supervisor or manager of
a laboratory, faculty, staff, researcher, post-doctoral fellows,
interns, technicians and principal investigators. Examples of training
for laboratory workers commensurate with ones duties include, but are
not limited to, training to perform their duties to comply with the
Subpart K labeling and container management standards, supervising
students in the laboratory, preparing containers for transport,
emergency response duties, and/or other duties, as appropriate.
    Several commenters expressed concern about the requirement that
personnel conducting on-site transfers of unwanted materials be RCRA-
trained. The commenters stated that this requirement is unnecessary and
does not recognize that these entities have been safely transferring
hazardous waste on-site for years and that a person can safely transfer
unwanted materials with appropriate safety training. In contrast, the
Agency heard from one commenter stating that students and non-RCRA
trained staff should not transfer hazardous wastes outside of the
laboratory. We believe that the person transferring unwanted materials
on-site must be a ``trained professional'' according to the definition
in Sec.  262.200, which requires that the individual complete the
applicable RCRA training requirements of Sec.  265.16 for LQGs, or
Sec.  262.34(d)(5)(iii) for SQGs and CESQGs. Despite the fact that
commenters stated otherwise, this requirement is consistent with the
Agency's existing interpretation for on-site transfers of hazardous
waste (see memo March 17, 2004, Springer to Regions, RCRA Online
14703). Furthermore, we believe that this level of training is
``commensurate'' with the duties of the individual transferring the
unwanted materials on-site, which are to transfer the materials safely,
to avoid spills or releases, and to respond properly to any releases,
among other things. Specifically, we believe that the on-site transfer
of unwanted materials outside of the laboratory should be conducted by
an individual who has received the full complement of RCRA training in
accordance with the eligible academic entity's generator status, to
ensure that that individual is knowledgeable about the RCRA
requirements, especially with regard to the compatibility of chemicals,
spill prevention, and emergency response. This is especially important
considering that the unwanted materials from many individual
laboratories will often be collected together during the on-site
collection and transfer of those materials.
    We also heard from two commenters who emphasized the importance of
training for personnel who make the hazardous waste determination at an
eligible academic entity. We agree with the commenters, and, as
proposed, require in today's final rule that the individual making the
hazardous waste determination, whether it is in the laboratory, at the
on-site CAA or on-site TSDF, be a trained professional who has the full
complement of RCRA training in accordance with the eligible academic
entity's generator status (SQG status for CESQGs). Individuals making
the hazardous waste determination must be aware of all applicable RCRA
requirements in order to complete their duties, which are to classify
the unwanted materials properly as solid and/or hazardous wastes and to
apply the correct hazardous waste code(s). Thus, we are continuing to
require that the person making the hazardous waste determination be a
``trained professional'' according to the definition set out in Sec.
262.200.
    Therefore, today's final rule maintains the requirement that
trained professionals make the hazardous waste determination and
transfer unwanted materials (or hazardous wastes, if the hazardous
waste determination is made in the laboratory) outside the laboratory
and that the trained professionals must meet the existing RCRA
generator training requirements applicable to the eligible academic
entity's generator status. In addition, today's final rule has added
the requirement that trained professionals at CESQGs must receive RCRA
training in accordance with the training requirements for SQGs, at a
minimum (see definition of ``trained professional'' in Section III.B.2
of today's preamble, as well as Sec.  262.200).
    Several commenters described other regulatory bodies (e.g., DOT;
U.S. Nuclear Regulatory Commission (NRC); Occupational Safety and
Health Administration (OSHA)) that require training on hazardous
chemicals, emphasizing that Subpart K's training requirements should
avoid redundancy with other required training. Some of these commenters
stated that they would use OSHA training to satisfy the proposed
Subpart K training requirements. In contrast, we heard from one
commenter expressing concern that there are no other appropriate
regulatory requirements for training specific enough to be appropriate
for RCRA because they do not effectively cover the RCRA hazardous waste
determination. The Agency believes that neither the ``traditional''
RCRA generator regulations nor Subpart K prohibits the use of other
training programs to satisfy the training requirements of Subpart K,
provided the other training program(s) address the relevant RCRA
requirements for trained professionals, and the relevant Subpart K
requirements to train laboratory workers and students commensurate with
their duties.
    Several commenters argued that eligible academic entities should be
able to provide evidence of training, in lieu of training records,
which they believe are too burdensome to keep. Furthermore, a few
commenters advocated eliminating the proposed recordkeeping
requirements for LQGs, arguing that such requirements would be more
burdensome than the existing requirements for satellite accumulation
areas, which do not require documented training for personnel. The
Agency recognizes that the satellite

accumulation area regulations do not require documented training for
personnel and is not requiring that records be retained for training of
students in the laboratory. However, we believe it is appropriate that
eligible academic entities that are LQGs retain the records for
training of laboratory workers in order to demonstrate that the
laboratory worker received the necessary training. The records that are
required for laboratory workers at LQGs are the same that are required
for trained professionals at eligible academic entities that are LQGs
(and which they are subject to today), both of which reference the
current LQG training regulations in Sec.  265.16.
    Finally, we heard from a few commenters who stated that the
maintenance of training records for trained professionals or laboratory
workers at SQGs is unnecessary. We did not propose to require such
recordkeeping for training of laboratory workers or trained
professionals at SQGs, nor has the Agency included such a requirement
in today's final rulemaking.
    In summary, under today's final rule, eligible academic entities
managing their laboratory hazardous wastes under Subpart K must provide
training for laboratory workers and students, and the training must
provide sufficient information so that laboratory workers and students
can understand and implement the requirements of Subpart K,
commensurate with their duties. An eligible academic entity can provide
training and instruction for laboratory workers and students in a
variety of ways, including, but not limited to, instruction by the
professor/manager before or during an experiment, formal classroom
training, electronic/written training, on-the-job training, or written
or oral exams. LQGs managing their laboratory waste under Subpart K
must maintain documentation demonstrating that the training has been
provided to laboratory workers and trained professionals. Documentation
demonstrating training can include, but is not limited to, sign-in or
attendance sheet(s) for training session(s), syllabi for training
session(s), certificate(s) of completion, or test results. Finally, the
training requirements in today's final rule restrict who may conduct
certain activities under Subpart K. Specifically, only ``trained
professionals,'' as defined in Sec.  262.200, may transfer unwanted
materials on-site and make the hazardous waste determination, pursuant
to Sec.  262.11, for unwanted material.
5. Removal Frequency of Unwanted Materials
    Currently, most laboratories operate under what is commonly
referred to as the satellite accumulation area (SAA) regulations (see
40 CFR 262.34(c)). At SAAs, removal of hazardous waste is dependent on
the volume of hazardous waste that is accumulated in each SAA. That is,
once more than 55 gallons of hazardous waste (or more than 1 quart of
acutely hazardous waste) is accumulated in an SAA, a generator has
three days to remove the excess of 55 gallons (or excess of 1 quart of
acutely hazardous waste) from the SAA and transfer it to an on-site CAA
or TSDF, or transport it off-site.
    In large part because colleges and universities explained to us
that they rarely accumulate 55 gallons of hazardous waste in a
laboratory, except during a laboratory clean-out, in Subpart K we
proposed to require the removal of unwanted materials from laboratories
based primarily on time, and secondarily by the volume of unwanted
materials. Specifically, we proposed that all unwanted materials,
including reactive acutely hazardous unwanted materials (as defined in
the proposal), generated in laboratories must be removed from the
laboratory at a regular interval that is specified in the entity's LMP,
and that such interval for routine removals must not exceed six months.
College and university representatives had told EPA that tying the
removal of laboratory wastes with the academic calendar would
facilitate removal of laboratory wastes that accumulate during the
course of the semester with a minimum of disruption. Therefore, the
Agency believed that six months was an appropriate length of time to
allow colleges and universities to schedule routine removals of
unwanted materials at the end of each semester.
    We also proposed that if a laboratory accumulates more than 55
gallons of unwanted materials (including reactive acutely hazardous
unwanted materials) prior to the regularly scheduled removal specified
in the entity's LMP, then all of the unwanted materials, including the
reactive acutely hazardous unwanted materials, must be removed from the
laboratory within ten calendar days of exceeding 55 gallons, or at the
next regularly scheduled removal, whichever occurs first. For reactive
acutely hazardous unwanted materials, we proposed that if a laboratory
accumulates more than 1 quart prior to the regularly scheduled removal,
then the reactive acutely hazardous unwanted materials would have to be
removed from the laboratory within ten calendar days of exceeding 1
quart, or at the next regularly scheduled removal, whichever occurs
first. The Agency proposed that the reactive acutely hazardous unwanted
materials be subject to the 1-quart volume limit for accumulation in
the laboratory, instead of the 55-gallon limit, because when these
reactive chemicals are stored for long periods, they can become
unstable, posing an extreme danger because these reactive chemicals
have the potential to cause significant harm to laboratory personnel
and property.
    Many commenters generally supported the shift to the time-driven
removal of unwanted materials from laboratories. However, they also
requested that the maximum time between regularly scheduled removals be
lengthened from six months to a year, or an ``academic year,'' which
commenters defined as ``the 11-13 month period that corresponds to a
college or university's annual teaching and research activities.'' Some
commenters argued that six months was too frequent because some
laboratories generate very small quantities of unwanted material in
that time period. While some laboratories may generate small quantities
of unwanted material, we have determined, based on all the available
information, to keep six months as the maximum time between regularly
scheduled removals.
    We have retained six months as the maximum time between regularly
scheduled removals of unwanted materials from the laboratory for
several reasons. First, we believe that implementing regular removals
on the basis of an ``academic year'' could be confusing. Second, as we
indicated in the preamble to the proposed rule, our goal is to have
unwanted materials removed from laboratories at least once each
semester. One commenter indicated that a schedule that allows removals
on a semester basis is preferred by stating, ``colleges and
universities generally use the semester's end to encourage laboratory
workers and students to have unwanted materials removed from their
laboratories before leaving campus. This practice reduces the risk that
unknown materials will be left behind by a student or laboratory worker
who does not return the following semester. Also it limits the amount
of waste material stored in laboratories during the break, when fewer
people are around to monitor or be aware of the conditions in the
laboratory.'' Finally, as discussed in the proposal, we do not believe
that allowing unwanted materials to accumulate for longer than six
months

would reduce risk to laboratory personnel and provide the benefits to
human health and the environment to the same extent and therefore the
anticipated benefits from moving to a time-driven rather than a volume-
driven approach would be diminished.
    We realize that some laboratories will not generate any unwanted
materials during a six month period and we do not intend for EH&S
personnel or other staff or contractors to make a trip to the
laboratory if they know that the laboratory does not have any unwanted
materials. The eligible academic entity must describe in Part II of its
LMP how it will determine whether a removal of unwanted material is
necessary at each individual laboratory. For example, a form or an e-
mail could be sent to each laboratory asking whether the laboratory has
any unwanted material accumulating and the EH&S could respond
accordingly. Eligible academic entities have flexibility with respect
to how they intend to comply with the requirements for regular removals
of unwanted materials. However, each eligible academic entity is
responsible for ensuring that it meets the time-driven requirement
(i.e., every six months) for the method it has selected for removing
unwanted materials from the laboratory. The accumulation start date
associated with each container (or affixed or attached to each
container, if that is preferred) of unwanted material is intended to be
used as the mechanism for determining compliance with regularly
scheduled removals. Of course, unwanted materials may always be picked
up with greater frequency than specified in either the regulations or
the eligible academic entity's LMP.
    A number of commenters expressed concern over the requirement to
remove ``all'' containers of unwanted materials from the laboratory
either during a regularly scheduled removal or when the volumes have
been exceeded, because this would require partially-filled containers
to be removed from the laboratory, which could require the use of more
containers. Many of these commenters requested that EPA modify the
requirement to remove ``all'' unwanted material from the laboratory to
require that only full containers of unwanted material have to be
removed from the laboratory.
    We recognize the commenters' concerns regarding the requirement to
remove ``all'' unwanted materials from the laboratory during regularly
scheduled removals or when volumes have been exceeded. However, we do
not consider the alternative suggested by commenters--to require that
only full containers of unwanted material have to be removed from the
laboratory--to be practical. It would be easy to circumvent the intent
of the regulations for regular systematic removals of unwanted
materials from the laboratory by simply not completely filling
containers of unwanted materials. In this scenario, the removal of
unwanted materials from the laboratory would be based primarily on
volume, rather than based on EPA's preferred approach of time. We
prefer the time-driven approach, with the maximum volumes as a backup
because, for most laboratories, it is rare to accumulate 55 gallons of
unwanted material. Without a time limit, unwanted materials could
remain in the laboratory for extended periods of time. As for the
concern about using too many containers, consolidation of compatible
materials is allowed within in a laboratory, as well as at an on-site
CAA or on-site TSDF, which could then return some or most of the
reusable containers for use in collecting unwanted material.
    One commenter suggested adopting a system that mirrors the
Universal Waste system for tracking the amount of time that unwanted
materials remain in the laboratory. This commenter suggested that a
laboratory should be allowed to demonstrate the length of time that
each container has been accumulating unwanted material and that EPA
should base the removal on how long each container is in the
laboratory. We also heard from many commenters that we should be more
flexible in the removal provisions.
    In response to these comments, there are now two alternative
approaches allowed for regular removals of unwanted materials. The
first approach is the one that was proposed. That is, all containers of
unwanted material must be removed from the laboratory on a regular
basis, not to exceed six months. Under this approach, however, it is
possible that a container that began accumulating unwanted materials
the day before the regularly scheduled removal would be required to be
removed. This approach is easy to implement, as all containers of
unwanted material would be removed from the laboratory, regardless of
when they began accumulating unwanted materials.
    The second alternative being added today allows the removal of
containers of unwanted material using a ``rolling'' six months
approach. That is, no individual container of unwanted material could
remain in the laboratory for more than six months. We believe this
alternative approach provides additional flexibility that many
commenters sought by adding a choice of implementation methods for the
removal of unwanted materials, while maintaining the intent of the
regulations by requiring regular, systematic, time-driven removals of
unwanted materials. Since there is already a requirement that all
containers have an accumulation start date associated with them, this
approach would rely on checking the dates associated with each
container in order to determine which containers would have to be
removed from the laboratory. Individual containers could potentially
remain in the laboratory longer than under the other alternative
approach and therefore, would be more likely to be full or nearly full.
On the other hand, this approach would likely require more frequent
removals from the laboratory to ensure that no container accumulating
unwanted materials remains in the laboratory longer than six months.
    Each eligible academic entity choosing to be subject to Subpart K
must select and identify in Part I of its LMP, the approach it chooses
for complying with regular removals of unwanted materials from the
laboratory. In Part II of its LMP, the eligible academic entity must
describe how it plans to comply with the approach it has chosen for
regular removal of unwanted materials from the laboratory.
    Under the SAA regulations of Sec.  262.34(c), if the maximum
volumes are exceeded, the excess of 55 gallons of hazardous waste (or 1
quart of acutely hazardous waste) must be removed from the area within
three days. We have frequently heard that the three-day time limit was
problematic, especially during long weekends and holidays. Under
Subpart K, we proposed to extend from three days to ten calendar days
the removal of unwanted materials from the laboratory when the maximum
volumes are exceeded. Many commenters supported this change, although a
few commenters believed that three days was sufficient. One State
commenter suggested that laboratories should remove their unwanted
materials before the maximum volumes are reached, which would remove
the need for providing additional time for the removal of unwanted
materials from the laboratory. We have decided to retain ten calendar
days for removing unwanted materials from the laboratory when the
maximum volumes are exceeded. We believe that ten calendar days will
provide sufficient flexibility to respond to the occasions when 55
gallons of unwanted material (or 1 quart of reactive acutely hazardous
unwanted material) is exceeded, while maintaining protection to human
health and the environment.

    With regard to which unwanted materials must be removed from the
laboratory when maximum volumes are exceeded, we proposed that when a
laboratory exceeds 55 gallons of unwanted material, it must remove all
unwanted materials--including the reactive acutely hazardous materials.
This is because all reactive acutely hazardous materials are unwanted
materials and should be considered in calculating whether the 55
gallons has been exceeded. On the other hand, we proposed that when a
laboratory exceeds 1 quart of acutely reactive unwanted material, it
must remove only the reactive acutely hazardous unwanted material, not
all containers of unwanted material, because not all unwanted materials
are reactive acutely hazardous unwanted materials, and therefore should
not be subject to the lower accumulation limits in the laboratory. We
have retained these requirements in today's final rule, with some minor
rewording to clarify our intent. Of course, in the case where a
laboratory exceeds 1 quart of reactive acutely hazardous unwanted
material, an eligible academic entity may choose to remove all unwanted
materials from the laboratory. If a trained professional has to make a
trip to the laboratory to remove reactive acutely hazardous unwanted
materials in excess of 1 quart, it may be more efficient to remove all
unwanted materials at the same time, even if they are not required to
be removed at that time.
    We proposed that if a laboratory accumulates more than 55 gallons
of unwanted material, then all containers of unwanted materials
(including reactive acutely hazardous unwanted materials) must be dated
with the date the 55 gallons is exceeded. We also proposed that if a
laboratory accumulates more than 1 quart of reactive acutely hazardous
unwanted material, then all containers of reactive acutely hazardous
unwanted materials must be dated with the date the 1 quart is exceeded.
This date is necessary to determine whether the ten calendar days had
elapsed and, therefore, when the containers must be removed from the
laboratory. In the proposed regulations, we did not specify which label
this date must go on--the label that is ``affixed to or physically
accompanies'' (which has been changed to ``affixed or attached to'' in
the final rule) the container, or the label that is ``associated with''
the container. However, in the preamble to the proposed rule, we did
indicate that, as with the requirement to date containers with their
accumulation start date, this date may be included on either label--the
label that is ``affixed or physically accompanies'' the container, or
the label that is ``associated with'' the container (see 71 FR 29730).
In today's final rule, we have revised the regulatory text to be
consistent with the preamble discussion from the proposed rule.
Therefore, when 55 gallons of unwanted material (or 1 quart of reactive
acutely hazardous unwanted material) is exceeded in a laboratory, the
date that the maximum volume is exceeded may be added to either type of
label. That is, it may be added to the label that is ``affixed or
attached to'' the container, but at a minimum it must be added to the
label that is ``associated with'' the container.
    One commenter pointed out that if an eligible academic entity does
not have an on-site CAA and one of its laboratories exceeds the
specified volume limits, the generator must be prepared to have a
vendor ship the unwanted materials from the laboratory to an off-site
TSDF within 10 calendar days. We agree with the commenter's assessment
and point out that this is an increase in the time allowed under the
current SAA regulations, under which the same generator would have only
three days in which to ship the hazardous waste off-site (or come into
compliance with the requirements for 90/180/270-day generator
accumulation areas).
    One commenter suggested that in order to be consistent with the SAA
regulations, the 55-gallon limit should be on a ``per wastestream''
basis, rather than a ``total volume'' basis. We disagree with the
commenter and find the commenter's interpretation of the SAA
regulations to be incorrect. To the contrary, EPA has consistently
interpreted the SAA regulations such that 55 gallons is based on a
total volume of all wastestreams combined (see memo from Robert
Springer, Director, OSW to EPA Regional Directors, March 17, 2004, RCRA
Online 14703). Thus, Subpart K is consistent with the SAA
regulations with respect to this provision.
a. Reactive Acutely Hazardous Unwanted Materials
    Under the SAA regulations of Sec.  262.34(c), if more than 1 quart
of an acutely hazardous waste listed in Sec.  261.33(e) is accumulated,
the excess of 1 quart must be removed from the SAA within three days
and taken either to an on-site CAA or TSDF, or transported off-site.
Section 261.33(e), which is commonly referred to as the ``P list'' of
hazardous wastes, currently comprises 124 chemicals. The P-list is a
list of commercial chemical products that are considered acutely
hazardous waste when discarded because they are considered hazardous
even when managed in small quantities. Under Subpart K, the Agency is
reducing the number of chemicals that are subject to removal from the
laboratory at the 1-quart threshold from all 124 chemicals on the P-
list to the six chemicals that are on the P-list because they are
reactive. We focused on the reactive chemicals on the P-list because,
as reactive chemicals, they have the potential to cause significant and
immediate harm to individuals and property. We are finalizing this
provision as proposed, along with the change to the definition of
reactive acutely hazardous unwanted material that was previously
discussed in section III.B.2 of today's preamble (also see Sec.
262.200).
    We also would like to clarify that this regulatory revision--that
is, the number of P-listed chemicals that are subject to removal from
the laboratory if they exceed the 1-quart threshold--does not impact
other aspects of the hazardous waste regulations. That is, we have not
changed the regulations with respect to which chemicals are identified
as acutely hazardous wastes or the 1 kg/month threshold for becoming an
LQG. Therefore, the entire P-list must be considered when a trained
professional makes the hazardous waste determination for unwanted
materials. If an eligible academic entity generates more than 1 kg/
month of acutely hazardous waste, it is an LQG for that calendar month,
except if the acutely hazardous waste is from a laboratory clean-out
conducted in accordance with Sec.  262.213 of today's rule, in which
case it need not be counted toward the eligible academic entity's
generator status. See section III.C.7 of today's preamble for a
discussion of the laboratory clean-out provisions, as well as Sec.
262.213.
b. Transferring Unwanted Materials or Hazardous Wastes From the
Laboratory to an On-site CAA or On-site TSDF
    To ensure that unwanted materials removed from the laboratory are
brought promptly to their next destination, such as an on-site CAA or
TSDF, the Agency proposed to require that when unwanted materials (or
hazardous wastes, if the hazardous waste determination was made in the
laboratory) are removed from a laboratory, they must be brought
``directly'' from the laboratory(ies) to an on-site CAA or TSDF. We
sought comment on whether it was necessary to define ``directly'' or to
replace it with a more specific time-frame, such as a same day
requirement.

    We received several comments in support of defining the term
``directly.'' Other commenters, however, stated that it was not
necessary to define the term, especially given our preamble discussion
in the proposed rule. In reviewing the comments, we have decided not to
add a regulatory definition of ``directly'' and will simply reiterate
and expand upon the preamble discussion from the proposed rule.
    In general, if the unwanted material is sent from the laboratory or
laboratories to the on-site CAA or TSDF within the same work day, this
would meet the intent of the regulation. We realize that many eligible
academic entities will collect unwanted materials from many
laboratories at a time, in series, and will deliver all the unwanted
materials to an on-site CAA or TSDF at the end of the collection
process. This would be an acceptable practice under today's
regulations, provided the unwanted materials are in continuous custody
of the trained professional that is collecting and transferring the
unwanted materials and they are delivered to the on-site CAA or TSDF at
the end of the work shift. It is not necessary to bring the unwanted
material from each individual laboratory directly to the on-site CAA or
TSDF and then in a separate trip bring the unwanted materials from the
next laboratory. Such an arrangement would only increase the amount of
time that trained professionals would spend in removing unwanted
materials from laboratories and that unwanted materials would spend in
transport, with no benefit. On the other hand, if unwanted materials
were left on a cart in the hallway overnight, this would not be an
acceptable practice and would not meet the intent of the regulation.
c. On-site Consolidation Areas
    Under the existing regulations, generators may accumulate hazardous
waste in two types of areas without having a permit or interim status:
(1) An SAA or (2) an on-site generator accumulation area (<=90, <=180
or <=270 day areas).\7\ Under Subpart K, eligible academic entities
also may accumulate unwanted materials and hazardous wastes in two
types of areas without having a permit or interim status: (1)
Laboratories (in lieu of SAAs) and (2) an on-site CAA (``CAA'' is a
term that has been defined under Subpart K, but is the same as what has
sometimes been called ``generator accumulation areas'' or ``90/180/270-
day areas'').
---------------------------------------------------------------------------

    \7\ LQGs may accumulate hazardous waste for 90 days or less on-
site without a permit or interim status, provided the provisions of
Sec.  262.34(a) (or Sec.  262.34(g)-(i) for F006 recyclers; or Sec.
262.34(j)-(k) for Performance Track members) are met. SQGs may
accumulate hazardous waste for 180 days or less on-site without a
permit or interim status, provided the provisions of Sec.  262.34(d)
and (f) are met. SQGs that must send their hazardous waste more than
200 miles for off-site treatment, storage, or disposal are allowed
to accumulate hazardous waste for 270 days or less on-site without a
permit or interim status, provided the provisions of Sec.  262.34(d)
and (f) are met (see Sec.  262.34(e)).
---------------------------------------------------------------------------

    At proposal, we solicited comment on whether an additional
accumulation area beyond what is already allowed in the rules should be
created to allow for the consolidation of unwanted materials after they
have been removed from the laboratory. We received many comments in
favor of establishing a consolidation area as a new type of area for
the accumulation of unwanted materials after such material has been
removed from the laboratory. Some commenters even included suggested
regulatory text for how these new consolidation areas would be
regulated, including specific requirements for labeling/dating,
container management, training, removal frequency, hazardous waste
determinations, inspections, spill response, signage, and documentation
in the LMP. A few commenters, however, opposed the creation of another
type of accumulation area, primarily because they were concerned that
the addition of another accumulation area would cause confusion.
    After analyzing the comments and considering the flexibility that
is already provided in the regulations, we have decided not to
establish a ``consolidation area'' as another type of accumulation area
for unwanted materials. We agree with the commenters that argued that
adding another type of accumulation area with another set of standards
would be confusing for implementers and enforcers with little, if any,
benefit. We believe that the flexibility that is already in Subpart K
can provide the benefits of a consolidation area, without establishing
a new regulatory category for them.
    It has been EPA's regulatory interpretation that hazardous wastes
can not be moved from one SAA to another (see memo from Robert
Springer, Director, OSW, to EPA Regional Directors; March 17, 2004,
RCRA Online 14703). One reason for this prohibition is that it
would be easy to circumvent the 55-gallon limit in an SAA by moving
hazardous wastes from one SAA to another SAA and thus remain below the
volume limits, allowing hazardous wastes to remain in the SAA
indefinitely.
    In today's rule, however, the removal of unwanted materials is
based on time primarily, and volume secondarily. Containers must be
marked with the date that unwanted materials first begin to accumulate.
This requirement is necessary in order to verify that unwanted
materials are being removed from the laboratory on a regular basis. The
requirement for a date to be associated with each container provides
laboratories with additional flexibility that does not exist in SAAs.
That is, under Subpart K, unwanted materials can be safely consolidated
within an on-site laboratory, such as in a chemical stockroom. As with
all on-site transfers of unwanted material outside of a laboratory, the
transfer of unwanted materials between laboratories must be accompanied
by a trained professional. Further, any laboratory in which unwanted
materials are consolidated from other laboratories is subject to the
time and volume limits for all laboratories that are subject to Subpart
K (i.e., if the laboratory accumulates more than 55 gallons of unwanted
material (or 1 quart of reactive acutely hazardous unwanted material),
the unwanted material must be removed from the laboratory within 10
calendar days). In addition, the date that an unwanted material first
begins to accumulate in a container would remain the same, regardless
of where the container is moved. In other words, no re-dating of a
container would be permitted if it were moved to another laboratory or
chemical stockroom. If the contents of two or more containers with
compatible materials are combined into one container; however, the
earliest date associated with the original containers must be used. The
date that is associated with each container will allow inspectors to
verify that containers are being removed from the laboratory on a
routine basis not to exceed six months, as required. The 55-gallon
volume limit will ensure that large quantities of unwanted materials
are not consolidated without the additional protections required at
CAAs.
    We envision this flexibility to be particularly useful for eligible
academic entities that do not have on-site CAAs. Commenters have
indicated that by consolidating their unwanted materials in a
laboratory or chemical stockroom themselves prior to a vendor's
arrival, they can save money because the vendor will be able to collect
unwanted materials from fewer laboratories, thus spending less time on-
site. In such a situation, if an eligible academic entity (or the
vendor) makes the hazardous waste determination in the laboratory, the
eligible academic entity does not have to make the hazardous waste

determination when the unwanted material is removed from the first
laboratory. Rather, the hazardous waste determination may be made when
the unwanted material is removed from the final laboratory where the
unwanted materials are consolidated, before it is sent off-site.
Consolidating unwanted materials from multiple laboratories will
provide another opportunity to consolidate unwanted materials that are
compatible with one another, thereby allowing containers to be reused.
We emphasize that trained professionals must transfer unwanted
materials between laboratories and that any laboratory where unwanted
materials are consolidated also is subject to the Subpart K
requirements, including the time and volume limits.
6. Making the Hazardous Waste Determination
    One of the primary benefits that Subpart K provides over the
existing generator regulations is flexibility in where and when to make
the hazardous waste determination. The Agency has consistently
interpreted the existing generator regulations to require that the
hazardous waste determination be made at the point of generation. We
now recognize that making the hazardous waste determination at the
point of generation is difficult and impractical in teaching and
research laboratories, because of the high number of individual wastes,
the variability in such wastes, and the transient nature of those
generating many of the wastes, namely students. Therefore, in Subpart
K, we proposed to allow the hazardous waste determination to be made in
the laboratory before the unwanted materials are removed from the
laboratory, or within four calendar days of arriving at an on-site CAA
or interim status or permitted TSDF. We proposed that when the
hazardous waste determination is made in the laboratory, it does not
have to be made at the initial time that the hazardous waste is
generated, as is required under the existing generator regulations,
only that it must be made before the unwanted materials are removed
from the laboratory. This alternative approach ensures that the
hazardous waste determination is made by a trained professional, rather
than by students, who would likely lack the necessary training, and
allows much greater flexibility in where and when to make the hazardous
waste determination.
    In general, we received favorable comments about the flexibility
provided by Subpart K with regard to making the hazardous waste
determination. Today, we are finalizing the regulations pertaining to
where and when the hazardous waste determination must be made with some
minor changes to address the expansion of the applicability of the
final rule to include eligible academic entities that are CESQGs.
Eligible academic entities that are LQGs or SQGs will continue to have
the choice of making the hazardous waste determination in the
laboratory before the unwanted material is removed from the laboratory,
or within four calendar days of arriving at an on-site CAA or interim
status or permitted TSDF. Because CESQGs would not have an on-site CAA
or TSDF, CESQGs are required to make the hazardous waste determination
in the laboratory before the unwanted material is removed from the
laboratory. See section III.C.9 of today's preamble for further
discussion of how Subpart K is implemented at CESQGs.
    At the time of the proposal, the Agency was aware that many smaller
eligible academic entities contract with outside vendors to make the
hazardous waste determination on their behalf. We expected that the
smaller eligible academic entities, which do not have on-site CAAs or
on-site TSDFs, would be relying on vendors to make the hazardous waste
determination in the laboratory(ies) prior to the hazardous waste being
brought off-site. As proposed, the regulations of Subpart K,
specifically Sec.  262.210, allowed for this scenario.
    From comments, we learned that even eligible academic entities with
on-site CAAs contract with vendors to make and/or confirm their
hazardous waste determinations. Thus, we received many comments arguing
against the requirement that the hazardous waste code(s) be placed on
the container within four days of arriving at the on-site CAA because
this essentially would preclude these entities from using vendors to
make the hazardous waste determinations for them. These commenters
believe that placing the words ``hazardous waste'' on the container is
sufficient to indicate that a hazardous waste determination has been
made and that they should be allowed to delay putting the hazardous
waste code(s) on the container until the vendor comes to ship the
hazardous wastes off-site.
    We agree with these commenters that the practice of using vendors
to make the hazardous waste determination should not be limited to
those eligible academic entities that make the hazardous waste
determination in the laboratory. Eligible academic entities that make
the hazardous waste determination in an on-site CAA or interim status
or permitted TSDF also should be able to use vendors to assist them
with their hazardous waste determination. In today's final rule,
therefore, the hazardous waste determination must still be made within
four calendar days of arriving at an on-site CAA or TSDF, and for those
unwanted materials that are hazardous waste, the words ``hazardous
waste'' still must be added to the label that is affixed or attached to
the container within those four calendar days. However, the Agency is
amending the final rule so that eligible academic entities may delay
assigning the hazardous waste code(s) until immediately prior to
shipping the hazardous waste(s) off-site. When containers of unwanted
materials arrive at an on-site CAA, they are subject to the CAA
regulations appropriate to the site's generator status, including
dating of the containers to calculate the 90/180/270 days that the
containers may be accumulated on-site, and the container management
standards. Likewise, when containers of unwanted materials arrive at an
on-site TSDF, the unwanted material becomes subject to the terms of the
facility's hazardous waste permit or interim status, as soon as it
arrives. Therefore, since the containers must be managed as hazardous
waste upon arriving at an on-site CAA or TSDF, we believe there is no
decrease in protection of human health and the environment by delaying
the addition of the hazardous waste code(s). The hazardous waste
code(s) are necessary for determining the LDR regulations that apply to
the hazardous wastes, but do not provide additional protection while
the hazardous wastes are being accumulated on-site. We emphasize that,
in all cases, regardless of generator status, or where the eligible
academic entity chooses to make the hazardous waste determination, the
hazardous waste determination must be made on-site before the unwanted
material can be treated at an on-site CAA, or treated or disposed at an
on-site TSDF, or sent off-site.
    Many commenters stated that four calendar days was not sufficient
to make the hazardous waste determination in an on-site CAA or TSDF.
However, given that (1) the hazardous waste determination is usually
required to be made at the point of generation and that the Agency is
providing considerable flexibility in Subpart K for where and when to
make the hazardous waste determination and (2) the initial hazardous
waste determination should be more straightforward without the addition
of the hazardous waste code(s),

we are not providing additional time. Thus, under today's final rule,
the hazardous waste determination must be made within four calendar
days of arriving at an on-site CAA or TSDF. Commenters also gave
various suggestions for changing ``calendar'' days to ``working'' or
``business'' days. We believe that this would be confusing because not
everyone shares the same ``working'' or ``business'' days. By relying
on ``calendar'' days, we are providing consistency and clarity in
calculating the timeframes within the rule.
    The Agency solicited comment on whether the four calendar days
should be included within the 90/180/270 day timeframe allowed for
accumulation in an on-site CAA or whether it should be separate from
these timeframes. Most commenters preferred the proposed option of
including the four calendar days for making the hazardous waste
determination as part of the 90/180/270 days allowed for the on-site
accumulation of hazardous wastes. They expressed this preference, in
large part, to avoid additional dating of containers that would be
necessary if the four days were separate from, and additional to, the
90/180/270 days of accumulation time. Therefore, under today's final
rule, a container's date of arrival at an on-site CAA will be used for
two purposes: (1) Calculating the four calendar days allotted for
making the hazardous waste determination and (2) calculating the
maximum accumulation time in the CAA.
    Many commenters objected to the proposed requirement that the
hazardous waste code(s) be placed on the label that is affixed to or
physically accompanies the container (as previously discussed, today's
final rule changes this requirement so that the label must be ``affixed
or attached'' to the container). They pointed out that the majority of
hazardous wastes generated in a laboratory are lab-packed when they are
transported off-site and that putting the hazardous waste code(s) on
the label that is affixed to the container, then placing the container
inside of a lab pack is of no value because the hazardous waste code(s)
would not be able to be seen. The commenters suggested allowing the
hazardous waste code(s) to be placed on the label that is ``associated
with the container'' rather than the label that is ``affixed or
physically accompanies the container.'' We had proposed that, as part
of the hazardous waste determination, the hazardous waste code(s) must
be placed on the containers within four days of arriving at an on-site
CAA or interim status or permitted TSDF. In this instance, the
hazardous waste code(s) on the container label would have been visible
during accumulation in an on-site CAA or storage in an on-site TSDF.
However, since the final regulations have been revised so that the
hazardous waste code(s) do not need to be added until just before the
hazardous waste is transported off-site and since most containers will
be lab-packed, we agree that placing the hazardous waste code(s) on the
container label that is affixed or attached to the container provides
no value. Therefore, we have revised the regulatory language in
Sec. Sec.  262.210(b)(2), 262.211(e)(2), and 262.212(e)(2) to allow the
appropriate hazardous waste code(s) to be placed on the container label
that is associated with the container. This will allow the practice of
putting hazardous waste code(s) on a packing slip or inventory list for
a lab pack to continue.
    One commenter expressed concern about the statement in the preamble
to the proposed rule (see 71 FR 29735) that, ``* * * regardless of
whether an employee or non-employee makes the hazardous waste
determination, the college or university could (emphasis added) still
be responsible if the hazardous waste determination is not made
correctly and for any mismanagement of hazardous waste.'' The commenter
was concerned ``that such wording could be used to contradict current
RCRA requirements that the generator is always responsible for the
proper waste determination regardless of who does the actual
designation.'' We did not intend this language to suggest the potential
interpretation for which the commenter expressed concern. Indeed, we
agree with the commenter that making the proper hazardous waste
determination is, and always has been, the responsibility of the
generator (as described in 40 CFR 262.11), which in this case, would be
the eligible academic entity, and did not intend to suggest otherwise.
    Another commenter requested that the Agency clarify that the
hazardous waste determination can be made in ``any'' of the three
areas, rather than in ``one'' of the three areas identified in Sec.
262.209(a). We agree with the commenter and have changed the regulatory
language to reflect the comment. For LQGs and SQGs, it is not necessary
for the eligible academic entity to limit itself to making the
hazardous waste determination in the same place all the time. We
realize that this could change depending upon circumstances. For
instance, during typical operations, an eligible academic entity may
choose to make the hazardous waste determination in its on-site CAA.
However, during a laboratory clean-out, the hazardous waste
determination might be made in the laboratory. Eligible academic
entities that are CESQGs, however, are limited by regulation to making
the hazardous waste determination in the laboratory before the unwanted
materials are removed from the laboratory and sent off-site.
    Several commenters requested that the Agency clarify the status of
chemicals or unwanted materials that can be redistributed to other
laboratories. It has always been the case under existing RCRA
regulations, and continues to be the case under Subpart K, that
chemicals that are fit for continued use are not solid or hazardous
wastes (see Sec.  261.2(e)(1)) and can be transferred between SAAs,
laboratories, and chemical stockrooms. Under Subpart K, we realize that
some chemicals that are initially identified as unwanted materials will
turn out not to be solid or hazardous wastes. If, for example, an
unwanted material is brought to an on-site CAA or TSDF for a hazardous
waste determination, and it is determined that such unwanted material
can be reused, then it is not a solid or hazardous waste and is not
subject to Subpart K or the Subtitle C hazardous waste regulations,
once the determination is made. That is, if a chemical is initially
labeled as an unwanted material and then it is subsequently discovered
that it can continue to be used, the chemical can be returned to a
laboratory or chemical stockroom for redistribution. EPA selected the
term ``unwanted material'' over ``laboratory waste,'' in part to
indicate that the material may still be useable.
    Sometimes laboratories end up discarding chemicals for which little
or no identifying information is available. We recognize that, in some
cases, chemicals will be managed in the laboratory and that when those
chemicals are eventually disposed, it may not be possible to identify
the chemicals. This sometimes happens when a researcher retires and
leaves unlabeled chemicals behind. In addition, some laboratories
synthesize new compounds as part of their research. When these
``unknowns'' are disposed of, it may not be possible to make a
hazardous waste determination without analysis. A few commenters
requested that the Agency address more specifically how to handle the
hazardous waste determination for such unknown chemicals. As a result,
we have added a requirement that an eligible academic entity must
develop,

in Part II of its LMP, procedures for the timely and reliable
characterization of unknown chemicals. See section III.C.8, of today's
preamble for more detail, as well as Sec.  262.214.
7. Laboratory Clean-outs
a. Summary of the Proposed Laboratory Clean-out Provisions
    EPA inspections and enforcement cases have revealed that used and
unused chemicals that are clearly no longer useable, have in some cases
remained in laboratories at academic institutions for years and even
decades. Sometimes these chemicals have not been discarded because the
eligible academic entity did not want to change its RCRA generator
status. In fact, one of EPA's goals in promulgating Subpart K has been
to provide incentives for eligible academic entities to remove such
``legacy'' chemicals from their laboratories. We proposed to provide
two incentives for conducting voluntary laboratory clean-outs. First,
we proposed that a college or university would have 30 days to conduct
a laboratory clean-out. It is during a laboratory clean-out that a
laboratory is most likely to accumulate more than 55 gallons of
unwanted material (or 1 quart of reactive acutely hazardous unwanted
material). If a laboratory accumulates more than 55 gallons, the
current SAA regulations require that the excess of 55 gallons of
hazardous waste (or 1 quart of acutely hazardous waste) be removed
within three days. Under Subpart K, we proposed that if a laboratory
accumulates more than 55 gallons of unwanted material, all unwanted
material, including reactive acutely hazardous unwanted material, must
be removed within ten calendar days, and if a laboratory accumulates
more than 1 quart of reactive acutely hazardous unwanted material then
all reactive acutely hazardous unwanted material must be removed from
the laboratory within ten calendar days. In a laboratory clean-out
conducted under Subpart K, however, a laboratory has 30 days from the
starting date of the laboratory clean-out to complete the laboratory
clean-out without being required to remove the assembled unwanted
materials from the laboratory, even if the laboratory exceeds 55
gallons of unwanted material (or 1 quart of reactive acutely hazardous
unwanted material). This incentive provides flexibility by giving an
extension in the time allowed for removal of the unwanted material over
the three days allowed in the satellite accumulation area regulations,
as well as the ten days allowed in Subpart K for unwanted materials
that are routinely generated.
    Second, we proposed that unwanted materials that are generated
during the 30 days of a laboratory clean-out and that are hazardous
wastes do not need to be counted toward the facility's generator
status. However, with this ``no counting'' incentive, we were and
remain concerned about inadvertently encouraging eligible academic
entities to retain unwanted materials that are generated in the
laboratory on a routine basis and to remove them only during a
laboratory clean-out, thereby improperly manipulating their generator
status. Two provisions in the proposal were intended to safeguard
against this. First was the proposed requirement for the college or
university to identify the start date of the laboratory clean-out in
its records. This, in combination with the proposed labeling
requirement for each container to have an accumulation start date
associated with it, provides a method of verification to ensure that
any container of unwanted material that has a date that pre-dates the
onset of the laboratory clean-out would not be considered to be from
the laboratory clean-out and the unwanted material would have to be
counted toward calculating the facility's generator status, assuming it
is determined to be hazardous waste. The second safeguard that was
proposed was that each laboratory at an eligible academic entity could
take advantage of the laboratory clean-out incentives only once per 12
month period. Given that each laboratory is required to have a
regularly scheduled removal of unwanted material at least every six
months, this was intended to ensure that each laboratory would have at
least one regularly scheduled removal during a calendar year between
laboratory clean-outs.
    We received a large number of comments, covering all aspects of the
laboratory clean-out provisions. In general, there was overwhelming
support for the concept of the laboratory clean-out incentives,
although there was opposition expressed by some commenters, as well.
Based on these comments, in today's final rule, we have made some
revisions to the proposed laboratory clean-out provisions. Below, we
discuss the revisions to the proposed laboratory clean-out provisions,
as well as the aspects of the laboratory clean-out provisions that are
being finalized as proposed, and we provide clarifications regarding
the laboratory clean-out provisions.
b. Changes Made to the Laboratory Clean-Out Provisions
    Many commenters expressed support for the laboratory clean-out
incentive that allowed them not to count their laboratory clean-out
hazardous wastes toward their generator status. On the other hand,
several commenters expressed concern that the Agency was creating a
system that would encourage laboratories to hold onto their routinely
generated unwanted materials until a laboratory clean-out, in order to
manipulate their generator status. We share the commenters' concerns
and have changed the provision of the laboratory clean-out incentive so
that only laboratory clean-out hazardous wastes that are unused
commercial chemical products are not counted toward the eligible
academic entity's generator status. Unused commercial chemical products
include chemicals that are discarded P- or U-listed commercial chemical
products, and unused discarded chemicals that are hazardous waste
because they exhibit one or more characteristics. Any unwanted material
that has been used and is a hazardous waste must be counted toward the
eligible academic entities generator status, even if it is removed
during the 30-day period of a laboratory clean-out. We intend for
routinely generated unwanted materials to be removed from the
laboratory during regularly scheduled removals, and we expect that the
bulk of these routinely generated unwanted materials will be used
chemicals. We do not consider these used, routinely generated unwanted
materials to be laboratory clean-out wastes and thus, they must be
counted toward the eligible academic entity's generator status.
Therefore, we have revised the regulatory language to be consistent
with our intent and to safeguard against the potential for abuse of the
laboratory clean-out incentive. This change will also emphasize that
the purpose of the laboratory clean-out is to remove unneeded or
unusable chemicals from the laboratory's inventory in order to increase
safety within the laboratory.
    We will rely on existing regulations and guidance for defining what
is considered a used or unused commercial chemical product. For
example, the P- or U-listings of Sec.  261.33(e) and (f) apply only to
unused commercial chemical products. Therefore, a P- or U-listed
hazardous waste generated during a laboratory clean-out would not have
to be counted toward the eligible academic entity's generator status,
because, by definition, it would be unused. An unused

chemical that is a hazardous waste because it exhibits one or more
characteristics also would not have to be counted toward the eligible
academic entity's generator status if it were generated during a
laboratory clean-out. In a memo dated June 14, 1990, (Bussard to
Wilson, RCRA Online 11523), the Agency answered a series of
specific questions relating to the definition of ``used.'' In summary,
the memo states that dissolving or diluting P- or U-listed chemicals in
water, acids, bases, preservatives, or solvents to make laboratory
standards (in lieu of buying such solutions) does not constitute use of
these chemicals. In addition, any unused, leftover chemical (either P-
or U-listed, or characteristic) in an original container, either
unopened or opened, or that has been transferred to another container,
such as a squirt bottle, for use would also be considered unused.
    Some commenters were concerned about the possibility that as a
result of the laboratory clean-out provision that allows some hazardous
waste not to count toward the eligible academic entity's generator
status, some eligible academic entities that are typically CESQGs but
would become either SQGs or LQGs as a result of a laboratory clean-out
(absent Subpart K), would be able to maintain their CESQG status. If
this were the case, the commenter was concerned that hazardous wastes
that should normally be managed as hazardous waste would be eligible to
be disposed of in a municipal solid waste landfill, which is allowed
under the CESQG regulations of Sec.  261.5. The Agency shares the
commenter's concern. In fact, in the preamble to the proposed rule we
stated, ``any hazardous waste that is not counted toward generator
status during a laboratory clean-out is still a hazardous waste and is
subject to all applicable regulations, including the land disposal
regulations, and the regulations for on-site and off-site management,
transportation, and treatment and disposal of hazardous waste. The
incentive that the Agency is proposing to provide for hazardous wastes
generated during a laboratory clean-out affects only the length of time
that hazardous wastes are stored on-site and other associated
regulations of 40 CFR 262.34 pertaining to generator status, such as
biennial reporting and contingency plans'' (see 71 FR 29739).
    Nevertheless, we believe that for clarity it is appropriate to
revise the regulatory language of Sec.  262.213 to reflect the intent
of the rule as stated in the preamble to the proposed rule. This is
made all the more necessary by the expansion of the final rule to
include eligible academic entities that are CESQGs. If an SQG avoided
LQG status as the result of a laboratory clean-out incentive, the
hazardous waste would still be regulated as hazardous waste once it is
taken off-site, since both SQGs and LQGs must comply with the same
transportation and disposal regulations. With the inclusion of CESQGs
into the final rule, however, if a CESQG avoided becoming an SQG or LQG
as the result of a laboratory clean-out incentive, then potentially
regulated hazardous waste would be allowed to be disposed of at a
municipal solid waste landfill. Therefore, we are modifying the
language of Sec.  262.213(a)(2) to indicate that the effect of not
counting hazardous wastes that are unused commercial chemical products
toward the eligible academic entity's generator status is limited to
the on-site accumulation of the hazardous waste. In tandem, we also are
including a new paragraph, Sec.  262.213(a)(3), to indicate that for
the purposes of off-site management, if an eligible academic entity
generates more than the monthly CESQG limits (i.e., >1 kg of acutely
hazardous waste, or >100 kg of hazardous waste), then the eligible
academic entity must manage its hazardous waste according to all
applicable hazardous waste regulations for SQGs and LQGs. When
determining whether these monthly limits have been exceeded, the
eligible academic entity must count all of its hazardous wastes,
including those generated during laboratory clean-outs. In other words,
even when hazardous wastes are not counted toward the site's generator
status, if they are generated in excess of the CESQG monthly limits,
they are regulated as hazardous waste when they are transported,
treated, stored or disposed of off-site. EPA intended to create an
incentive to conduct laboratory clean-outs by relieving the generator
of some of the additional burden that would be incurred by changing
generator status. However, we did not intend to allow regulated
hazardous waste in excess of the CESQG monthly limits to be disposed of
in municipal solid waste landfills.
    We illustrate how this would work by providing an example of a
likely scenario. An eligible academic entity that is normally a CESQG
conducts a laboratory clean-out. As a result of the laboratory clean-
out, the eligible academic entity generates 5 kg of P-listed hazardous
waste. Because P-listed hazardous wastes are all acute hazardous
wastes, the eligible academic entity generates more than 1 kg of acute
hazardous waste that month. Normally, this would mean that the eligible
academic entity would become subject to the LQG regulations for that
month. However, because the laboratory clean-out provisions allow the
eligible academic entity not to count the 5-kg of P-listed hazardous
waste from the laboratory clean-out toward its generator status, the
eligible academic entity will remain a CESQG under Sec.  261.5 for the
purposes of on-site accumulation of its hazardous waste, including the
acute hazardous waste. However, once the hazardous waste is sent off-
site, the eligible academic entity would not be allowed to send its
hazardous waste to a non-hazardous waste facility, such as a municipal
solid waste landfill, as allowed by the CESQG regulations of Sec.
261.5. Instead, because the eligible academic entity generated acute
hazardous waste in excess of the CESQG monthly limits (i.e., >1 kg
acute hazardous waste), the hazardous waste would have to be managed as
hazardous wastes when sent off-site. This means, for example, that the
hazardous waste would have to be manifested, comply with the LDRs, and
be either recyled or treated and disposed of at a hazardous waste TSDF.
    A number of commenters expressed support for extending the
laboratory clean-out incentives to ancillary spaces, such as stockrooms
and laboratory preparatory rooms. As discussed in the preceding section
on the definition of laboratory (see Section III.B.2 and Sec.
262.200), these ancillary spaces would be considered laboratories,
whether they support individual laboratories or the laboratories of a
department, and thus would be eligible to take advantage of the
laboratory clean-out provisions. In fact, since these ancillary areas
typically store chemicals for use by nearby or surrounding
laboratories, we believe the clean-out provisions are especially
important for these ancillary areas.
    Two commenters pointed out an inconsistency between the preamble
and the regulatory text with respect to how long records of laboratory
clean-outs must be kept. The preamble to the proposed rule stated that
records must be kept ``for as long as the college or university
operates under this new subpart'' (see 71 FR 29739), while the proposed
regulatory text stated that records pertaining to laboratory clean-outs
must be kept ``for a period of three years from the date the clean-out
ends.'' The proposed regulatory text reflects what we intended for
record retention pertaining to laboratory clean-outs. Thus, the final
rule makes clear that records for laboratory clean-outs must be kept
for three years from the date the clean-out ends.

c. Changes Not Made to the Laboratory Clean-Out Provisions
    Many commenters expressed support for the 30-day timeframe for
conducting laboratory clean-outs, believing that 30 days is sufficient
time to conduct a laboratory clean-out. About the same number of
commenters, however, requested a longer timeframe for conducting
laboratory clean-outs. Suggestions ranged from 60 days to 180 days. One
commenter indicated that ``60 days is a more reasonable length of time
to arrange for and mobilize a hazardous waste contractor for on-site
lab-packing services, especially if the clean-out was unexpected or the
institution is in a remote location.'' We anticipate that in most
instances, laboratory clean-outs will be planned events. Therefore, we
continue to believe that 30 days is sufficient time to conduct a
thorough laboratory clean-out and we are finalizing the time limit for
laboratory clean-outs, as proposed.
    Commenters asked the Agency when the 30 days of a laboratory clean-
out would begin--while the inventory of laboratory chemicals is being
sorted or when they are discarded? The definition of ``laboratory
clean-out'' in today's final rule is:

an evaluation of the inventory of chemicals and other materials in a
laboratory that are no longer needed or that have expired and the
subsequent removal of those chemicals or other unwanted materials
from the laboratory. A clean-out may occur for several reasons. It
may be on a routine basis (e.g., at the end of a semester or
academic year) or as a result of a renovation, relocation, or change
in laboratory supervisor/occupant. A regularly scheduled removal of
unwanted material as required by Sec.  262.208 does not qualify as a
laboratory clean-out.

Therefore, the 30 days of a laboratory clean-out starts when a trained
professional or laboratory personnel begins sorting through and
evaluating the inventory of laboratory chemicals, making decisions
about whether they are unwanted materials or not. Once it has been
determined that a chemical is, indeed, an unwanted material, as opposed
to a chemical or other material that can be kept in the laboratory for
further use, then the unwanted material becomes subject to the
requirements of Subpart K. We realize that a laboratory clean-out can
involve considerable planning before the laboratory clean-out begins.
Advanced planning for a laboratory clean-out prior to sorting and
evaluating a laboratory's chemical inventory is not considered the
start of the 30 days allowed for a laboratory clean-out.
    At the conclusion of the laboratory clean-out, all unwanted
materials (or hazardous waste, if the hazardous waste determination is
made in the laboratory) must be removed from the laboratory. Note that,
as with routinely generated unwanted materials, unwanted materials from
a laboratory clean-out can be taken to an on-site CAA or TSDF to make
the hazardous waste determination. Eligible academic entities without
an on-site CAA, or on-site interim status or permitted TSDF will have
to make the hazardous waste determination for unwanted materials
generated during a laboratory clean-out in the laboratory before they
are removed from the laboratory and will have to be prepared to send
the hazardous wastes off-site at the conclusion of the 30-day clean-
out.
    Finally, although a few commenters suggested that the Agency
require that eligible academic entities conduct laboratory clean-outs,
the Agency has decided not to do so. Rather, we believe that the
laboratory clean-out provisions are attractive enough to eligible
academic entities such that they will avail themselves of the clean-out
provisions without EPA forcing them to do so through a mandate.
d. Clarifications About the Laboratory Clean-Out Provisions
    The Agency wants to reiterate the point that we view laboratory
clean-outs to be distinct from routine, regularly scheduled removals of
unwanted materials. In the course of normal laboratory operations, many
chemicals are used and will become unwanted materials and ultimately
may be determined to be hazardous wastes. This can occur as a result of
teaching or research activities or, in the case of teaching hospitals,
as a result of clinical or diagnostic activities. We expect that these
routinely generated wastestreams will comprise the bulk of the unwanted
materials that are removed from the laboratory during regularly
scheduled removals. On the other hand, a laboratory often can accrue a
large number of unused chemicals in its inventory, some of which can
become dangerous over time, developing the potential to cause
significant harm. It has been our observation that it is unusual for
laboratories to remove unused chemicals from their inventories on any
regular basis. We have developed the laboratory clean-out provisions to
provide incentives for laboratories to assess their inventory and
remove chemicals from the laboratory that are either dangerous or have
the potential to become dangerous, or are unlikely to be used in the
future, regardless of the reason. We anticipate that many eligible
academic entities will take advantage of the laboratory clean-out
provisions when a researcher or faculty member retires or moves, or
when a building is renovated. However, we are not limiting the use of
the laboratory clean-out provisions to these events because we would
like to encourage laboratories to develop the practice of more frequent
reviews and removals of their unneeded or unusable chemicals. However,
the laboratory clean-out incentives (i.e., having 30 days to conduct a
laboratory clean-out and not counting toward the eligible academic
entity's generator status the hazardous waste that consists of unused
commercial chemical products) is still limited to once per laboratory
per 12 month period.
    Two commenters asked for clarification about the labeling and
container management standards that apply to laboratory clean-out
wastes. During the course of a laboratory clean-out, some chemicals
will be considered unwanted materials and ultimately hazardous wastes,
while others will not. Those laboratory clean-out chemicals that become
unwanted materials are subject to all the same labeling and container
management standards--as well as all other applicable requirements of
Subpart K--as any other unwanted material in the laboratory, with the
exceptions noted in Sec.  262.213(a)(1)-(4). On the other hand, those
chemicals that can continue to be used in the same laboratory would be
considered products, not unwanted materials, and would not be subject
to the labeling and container management standards of Subpart K. If a
clean-out chemical from one laboratory can be used in a different
laboratory, we can envision two probable scenarios. If the
determination is made in the laboratory that a chemical can be used in
another laboratory, it would not be considered an unwanted material;
rather, it would be considered a product and thus not regulated under
RCRA. If, on the other hand, the determination that the chemical can be
used in another laboratory is made after it is removed from the
laboratory, in an on-site CAA or TSDF, the clean-out chemical would be
regulated as an unwanted material until it is redistributed from the
CAA to another laboratory for further use.
    Several commenters were concerned that if hazardous wastes
generated as a result of a laboratory clean-out do not have to be
counted toward the eligible academic entity's generator status, fewer
generators will have to submit a BR and the result would be under-
reporting of hazardous wastes from those eligible academic entities
that choose to be subject to the Subpart K requirements.

We acknowledge that there may be fewer generators reporting hazardous
waste generation as a result of the laboratory clean-out provisions not
to count hazardous waste that consists of unused commercial chemical
products toward the eligible academic entity's generator status because
under the Federal regulations, only LQGs have to submit the BR.
Nevertheless, we anticipate that even after subtracting laboratory
clean-out wastes when calculating their generator status, many eligible
academic entities will still generate enough hazardous waste to be
LQGs, based on their routinely generated laboratory waste, as well as
their non-laboratory hazardous wastes, in which case they will still be
required to submit the BR. Moreover, some States require SQGs to submit
a BR. For information on how to submit the BR with respect to hazardous
wastes generated during laboratory clean-outs, see Section III.D.1.
8. Laboratory Management Plan
    Today's final rule requires that eligible academic entities
choosing to be subject to the Subpart K requirements must develop an
LMP. As EPA explained in the preamble to the proposed rule, the goal of
the LMP is for a college or university to plan carefully how it is
going to implement Subpart K's performance-based requirements for
safely managing the unwanted materials generated in laboratories. We
believe that the LMP provides a necessary supplement to the flexibility
provided in this rule and will ultimately work to increase
environmental performance and protection. EPA received positive
feedback from commenters about requiring the LMP. Many commenters
explained that requiring an LMP along with a performance-based approach
will help make it possible for eligible academic entities to achieve
their environmental goals, such as regulatory compliance, pollution
prevention and laboratory safety.
    Some commenters misinterpreted EPA's intent for the LMP. One
commenter believed that each laboratory within a college or university
had to develop an LMP. That is not the case at all. Rather, EPA
intended that the eligible academic entity--a college or university, or
non-profit research institute or teaching hospital that is owned by or
has a formal written affiliation agreement with a college or
university--would create one LMP for all its laboratories that are
operating under Subpart K. In addition, if an eligible academic entity
has multiple EPA Identification Numbers or sites, then it can develop
one LMP to cover operations for all laboratories at all sites operating
under the Subpart K requirements. Also, a number of commenters
suggested that an eligible academic entity should list in its LMP which
laboratories would be covered under Subpart K and its LMP. The
commenters go on to state that each eligible academic entity should be
allowed to determine which of its laboratories will operate under
Subpart K and document this in its LMP. In response, and as described
earlier in the preamble, if multiple sites with separate EPA
Identification Numbers operate under one LMP, the LMP must identify
which sites are covered by the LMP. However, there is no requirement to
identify each laboratory within each site, as all laboratories at a
participating eligible academic entity within that site or covered by
an EPA Identification Number must operate under Subpart K (see section
III.C.1, Notification and Sec.  262.203). Nevertheless, should an
eligible academic entity choose to list all its laboratories that are
participating in Subpart K, it could be a valuable tool to manage
removals of unwanted material, as well as assist EPA and State
inspectors in determining compliance with the Subpart K requirements.
    Another commenter argued that requiring an LMP would be redundant
documentation since laboratories are required to have a Chemical
Hygiene Plan under OSHA's Laboratory Standard. We disagree. As the
proposal clearly explained, a college or university (and now eligible
academic entities) can take an existing plan, such as the Chemical
Hygiene Plan and revise it to include the additional necessary
information or procedures required by today's rule.
    Two requirements for the LMP are remaining the same in today's
final rule. First, an eligible academic entity must make its LMP
``available'' to laboratory workers, students, and anyone requesting
the LMP at the eligible academic entity. Examples may include, but are
not limited to, posting the LMP on the Web site of the participating
eligible academic entity or keeping a copy of the LMP at each
individual site of the eligible academic entity that is participating
in Subpart K. Second, since the LMP is a document to plan how an
eligible academic entity will meet the performance-based standards of
Subpart K, EPA requires the LMP to be reviewed and updated, as needed,
so that it is current with the waste management practices at the
eligible academic entity's laboratories.
    Most of the comments received about the LMP centered on the two
options EPA co-proposed regarding the enforceability of the contents of
the LMP. Both proposed options required development of an LMP that
addressed how the college or university would achieve the performance-
based standards of the rule. The difference between the two options was
in the enforceability of the contents of the LMP. Under one proposed
option, compliance with the performance-based regulations was
enforceable, but the contents of the LMP were not enforceable. In the
other proposed option, the contents of the LMP were enforceable, as
well as compliance with the performance-based regulations.
    EPA received comments supporting both options. There was a strong
belief from some commenters that if the EPA did not make the LMP's
contents enforceable, then the LMP would not be a meaningful document
and would not be followed. On the other side, commenters argued that
the LMP should not be enforceable; these commenters believed that an
enforceable LMP would compel colleges or universities to develop vague,
minimum procedures and that an enforceable LMP would be contrary to the
goals of a performance-based regulation.
    Reviewing the Agency's reasons for proposing the requirement for an
LMP, EPA wanted colleges and universities to give careful thought
regarding the management of unwanted materials and hazardous waste
generated in their laboratories. Moreover, we wanted to encourage
colleges or universities to go above and beyond the regulations and to
think holistically about waste management on campus by planning and
developing best management practices (BMPs) in the LMP. We continue to
believe strongly that the LMP is necessary in order to provide the
planning component for implementing the provisions of this rule. Based
on our views regarding the purpose of the LMP and the comments we
received, we have decided to split the LMP into two parts--with the
contents of one part enforceable and the contents of the other part not
enforceable, although in order to be in compliance with Subpart K, an
eligible academic entity must address all nine elements in its LMP.
    Thus, under the final rule, the LMP must be comprised of two parts
with a total of nine elements as specified in 40 CFR 262.214. The
specific contents in Part I of the LMP are enforceable, while the
specific contents in Part II of the LMP are not enforceable. Below is a
discussion of the required elements in the two Parts of the LMP. If an
element has remained the same as proposed, it is simply enumerated
without discussion.

a. Part I of the LMP
    As a way to incorporate more flexibility into the regulations,
while maintaining the accountability in this Subpart, the contents of
Part I of the LMP are enforceable. This part of the LMP contains
necessary information for inspectors and other officials about what
options within Subpart K the eligible academic entity is exercising.
The two elements of Part I of the LMP are explained here:

    1. Describe procedures for container labeling in accordance with
Sec.  262.206(a), including
    i. Identifying whether the eligible academic entity will use the
term ``unwanted material'' on the containers in the laboratory. If
not, identify the equally effective term that will be used in lieu
of ``unwanted material'' and consistently by the eligible academic
entity. The equally effective term, if used, has the same meaning
and is subject to the same requirements as ``unwanted material.''
    ii. Identifying the manner in which information that is
``associated with the container'' will be imparted.

    The first sub-element allows flexibility in using different
terminology other than ``unwanted materials.'' Many commenters wrote
that they disliked the term ``unwanted materials'' because it was
overbroad and would cause confusion. While we do not necessarily agree
with these commenters, EPA does not object to including additional
flexibility concerning the terminology that can be used in the
laboratory instead of ``unwanted materials.'' \8\ However, in order for
an eligible academic entity to take advantage of this option, it must
identify another equally effective term (e.g., laboratory waste) in the
first element of Part I of its LMP. This equally effective term must be
used consistently in all of its laboratories operating under Subpart K
(see Section III.C.2 and Sec.  262.206(a)(1)(i)).
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    \8\ If an eligible academic entity elects to use another equally
effective term in lieu of ``unwanted material,'' in compliance with
Sec.  262.206(a)(1)(i), the equally effective term will have the
same meaning as ``unwanted material.'' In addition, the equally
effective term shall be subject to all of the same requirements in
this rule that apply to unwanted materials.
---------------------------------------------------------------------------

    The second sub-element of the first element of Part I of the LMP in
today's final rule requires eligible academic entities to describe the
manner in which information associated with the container will be
provided. For example, if an eligible academic entity chooses to use
barcodes and a computer tracking system to meet the requirement to have
information associated with a container, it must describe this in the
enforceable Part I of the LMP, so that inspectors know where the
associated container information resides.
    2. Identify whether the eligible academic entity will comply with
Sec.  262.208(a)(1) or Sec.  262.208(a)(2) for regularly scheduled
removals of unwanted material from the laboratory.
    In the second element of Part I of the LMP, an eligible academic
entity must describe which method it will exercise for the removal of
unwanted materials. Today's final rule adds another option for the
removal of unwanted materials, as described in Section III.C.5 of
today's preamble, in order to increase the flexibility for eligible
academic entities. However, with the added flexibility, we require that
the eligible academic entity documents which removal method it chooses
to use. For example, if an eligible academic entity elects to comply
with 40 CFR 262.208(a)(2), where it must remove containers of unwanted
material from each laboratory within six months of each container's
accumulation start date, then the eligible academic entity must record
this choice in Part I of the LMP. If the eligible academic entity
elects to comply with the other approach, that must be documented in
Part I of the LMP.
b. Part II of the LMP
    As with Part I of the LMP, Part II of the LMP is required and must
reasonably address the seven required elements. EPA envisions that
eligible academic entities will use this section to capture BMPs for
holistic waste management within laboratories. In order to encourage
the development of BMPs, the specific contents of Part II of the LMP
are not enforceable. For example, should an eligible academic entity
explain that it will train students commensurate with their duties by
showing a video, but instead provides classroom instruction because the
video is broken, then the eligible academic entity is not in violation
of its LMP. The following are the seven elements that an eligible
academic entity must address in Part II of its LMP; discussed in the
order in which they appear in the regulations.
     The first three elements of Part II of the LMP are
essentially the same as proposed.
    The second element includes a minor change that was necessary
because of the change in the training and instruction requirements for
laboratory workers and students. Under the proposed rule, training was
required for laboratory workers, while instruction was required for
students. Today's final rule requires that for both laboratory workers
and students, training be commensurate with their duties. Elements one,
two, and three of Part II of the LMP are below:

    1. Describe its intended best practices for container labeling
and management standards, including how the eligible academic entity
will manage containers used for in-line collection of unwanted
materials, such as with high performance liquid chromatographs and
other laboratory equipment (see the required standards at Sec.
262.206).
    2. Describe its intended best practices for providing training
for laboratory workers and students commensurate with their duties
(see the required standard at Sec.  262.207(a)).
    3. Describe its intended best practices for providing training
to ensure safe on-site transfers of unwanted material by trained
professionals (see the required standard at Sec.  262.207(d)(1)).

     The fourth element of Part II of the LMP has changed since
proposal.
    The fourth element of Part II of the LMP concerns the procedures of
regularly removing unwanted materials from the laboratory. While EPA is
not adding anything to this element, the regulatory language has been
modified to clarify what the Agency intends as part of this element.
That is, we have included two different types of removals of unwanted
materials from laboratories--regularly scheduled removals, and removals
when maximum volumes are exceeded--because they require different
procedures. This clarification will ensure that an eligible academic
entity develops a method to communicate with EH&S personnel or vendors
when laboratories exceed the maximum volume and a pickup of the
unwanted materials is needed. See the fourth element below:

    4. Describe its intended best practices for removing unwanted
material from the laboratory, including:
    a. For regularly scheduled removals--Develop a regular schedule
for identifying and removing unwanted materials from its
laboratories (see the required standards at Sec.  262.208(a)(1) and
Sec.  262.208(a)(2)).
    b. For removals when maximum volumes are exceeded
    A. Describe its intended best practices for removing unwanted
materials from the laboratory within 10 calendar days when unwanted
materials have exceeded their maximum volumes (see the required
standards at Sec.  262.208(d)).
    B. Describe its intended best practices for communicating that
unwanted materials have exceeded their maximum volumes.

     The fifth and sixth elements of Part II of the LMP have
remained essentially the same as proposed. The second part of element
six reflects one minor change. In the preamble to the proposed rule and
as finalized today, one of the requirements for a laboratory clean-out
is that an eligible academic entity must document its clean-out
activities (see section III.D.2 or Sec.  261.213(a)(4)). Because we are
not mandating that an

eligible academic entity document its laboratory clean-out in a
particular format or media, we are requiring that an eligible academic
entity develop procedures for documenting it as part of element six of
Part II of the LMP. See elements five and six below:

    5. Describe its intended best practices for making hazardous
waste determinations, including specifying the duties of the
individuals involved in the process (see the required standards at
Sec.  262.11 and Sec. Sec.  262.209-262.212).
    6. Describe its intended best practices for laboratory clean-
outs if the eligible academic entity plans to use the incentives for
laboratory clean-outs provided in Sec.  262.213, including:
    a. Procedures for conducting laboratory clean-outs (see the
required standards at Sec.  262.213(a)(1)-(3)) and
    b. Procedures for documenting laboratory clean-outs (see the
required standards at Sec.  262.213(a)(4)).

     The seventh element of Part II of the LMP has changed
since proposal.
    The seventh element has been expanded in the final rule based on
several comments about the characterization of unknown chemicals and
chemicals that degrade over time. The proposed rule required colleges