Comment: If EPA truly deems mandatory biennial re-notification by all SQGs a necessity as opposed to a meaningless exercise that continually recollects existing data, then EPA can support their stance by bearing some additional burden and establishing the same reporting deadline for SQGs as biennial reporting for LQGs - March 1st of each even-numbered year. (0152)

Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions.
Comment: We also recommend that if the SQG re-notification is retained, the filing deadline for an SQG should be set later in the year, e.g., September I rather than February 1. (0185)
Response: The Agency agrees and has finalized the rule to require SQG re-notifications no later than September 1 of the reporting year.
Comment: IME recommends that SQGs and LQGs both report on the same date of the same year. We believe it would be simpler and less confusing for most generators to do all their reporting at one time in a single year, particularly facilities that must report as both SQGs and LQGs because of their varying monthly waste production totals. It would be even more convenient for our member companies if the agency were to allow the re-notification to be done in conjunction with the biennial reporting. (0188)
Response: Based on comments received, the Agency has taken a different approach than the approach the commenter has recommended. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. EPA agreed with many other commenters who wanted SQG re-notification to occur in odd-numbered years  -  opposite biennial report submissions  -  in order to reduce or spread the burden for States, as well as corporate and/or public entities responsible for submitting re-notifications for multiple facilities/sites.
Comment: Due date for the SQG re-notification. Instead of making it at the same time as the Biennial Report, it would work much better for Florida if the date was moved to the fall of the odd years. (0214)

Response: The Agency agrees and the final rule requires SQGs to re-notify no later than September 1 of the reporting year.

Comment: There are several States that currently require SQGs to submit biennial reports which often require the same information as Form 8700-12. For those States, re-notification for SQGs should remain March 1st in even-numbered years according to their regulations. To change the submittal date to February 1 of even-numbered years would require a rule change. (0217)
Response: States can be more stringent than the federal program. The final rule requires SQGs to re-notify no later than September 1 of the reporting year. Therefore, states with earlier reporting schedules should have no problem meeting this requirement.
Comment: Another State agrees that LQGs and SQGs should be required to re-notify when certain information changes. This State also agrees that SQGs and LQGs should be required to confirm or update their information no less frequently than every two years. However, EPA should allow authorized States to determine the schedule for obtaining the information. Some States do not have the resources to collect re-notification information from all SQGs by February 1 in the same year that biennial reports are due. (0217)
Response: Based on comments received, the Agency has taken a different approach. Instead of every two years for SQG re-notifications, the Agency will require re-notification every four years beginning in 2021 in years opposite biennial report submissions. Similarly, the final rule requires SQGs to re-notify no later than September 1 of the reporting year. Therefore, states with earlier reporting schedules should have no problem meeting this requirement.
Comment: Another State recognizes the importance of maintaining current and accurate information of the universe of hazardous waste generators, and also notes the burden of entering notification data into the RCRAInfo database falls predominantly to State staff, as is recognized in the preamble of EPA's proposed rule. The rule proposes that SQG re-notification be required by February 1 of each even-numbered year. Considering the large number of SQGs in many States, this State believes the February date would likely overlap with LQG biennial report data entry which begins in January for many States due to early submittal of LQG reports. A couple of States suggest the SQG re-notification deadline occur in odd-numbered years to reduce or spread the burden for States, as well as corporate and/or public entities responsible for submitting notifications for multiple facilities/sites. (0217)

Response: The Agency agrees. Based on comments received, the Agency will require SQG re-notification every four years beginning in 2021 in years opposite biennial report submissions.

Section <IP_ADDRESS> - Rolling re-notifications

Comment: We believe that rolling notifications would impose an unnecessarily heavy burden for regulators, including our office, to keep track of. (0082)
Response: The Agency agrees and is not pursuing a rolling notification option.
Comment: One State believes the "rolling" re-notifications option may possibly work. However, this would require EPA to prepare a report in RCRAInfo that States could use for tracking purposes. (0217)
Response: Upon further analysis and evaluation of this option, the Agency believes it would be too difficult to implement nationally and is not pursuing a rolling notification option.
Comment: However, the MPCA does not support the variant suggested by EPA of `rolling' notification due dates. Such an approach was tested in Minnesota between 1983 and 1985, and found to be confusing for both generators and regulators alike, particularly for corporate entities that may have several sites. Even in a hardcopy approach, the MPCA found that a single defined due date for re-notifications was most understandable by generators and enforceable by regulators. Especially with currently available electronic submittal capabilities, processing of standardized information can be mainly automated, with direct input of received data into databases, or after at most a brief error-checking stop. (0232)
Response: The Agency agrees with the comments above and it will not pursue a "rolling average" approach to re-notifications.

Section <IP_ADDRESS> - Re-notification in the event of a change

Comment: In order to solve the potential problem cited in the preamble (generator status changing back and forth without re-notification), and because we believe that generator status is a piece of information so critical that it should be kept constantly up-to-date, we recommend adding the requirement for re-notification when generator status changes in addition to the 2-year cycle of re-notification. The following changes could also trigger required re-notification (within 30 days): change in generator status, change in address*, change in contact person or contact information, change in ownership. *Although change in address actually requires a new ID number to be assigned, we believe that listing it in the rules as a change requiring "re-notification" will assist generators in understanding that they need to submit notification immediately upon changing their operating location. Regulating agencies can then assign a new number, and deactivate the existing number if appropriate. Currently, we frequently find out that a business has moved only by inspecting a new location or attempting to inspect an old location where they are no longer operating, wasting program resources.(0082)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). In fact, the Minnesota Pollution Control Agency comments strongly cautioned EPA to not adopt this approach and to learn from Minnesota's negative experience requiring re-notification when events occur. EPA and the states also have experience regarding how to implement a census re-notification process via the Biennial Reporting process for LQGs that they can apply to the new SQG re-notification process.

Comment: It would be less burdensome to only require re-notification when there has been a significant change to facility status, address or ownership. (0099)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). In fact, the Minnesota Pollution Control Agency comments strongly cautioned EPA to not adopt this approach and to learn from Minnesota's negative experience requiring re-notification when events occur. EPA and the states also have experience regarding how to implement a census re-notification process via the Biennial Reporting process for LQGs that they can apply to the new SQG re-notification process.

Comment: EPA proposes to require all SQGs and LQGs to re-notify EPA of their site identification information, regardless of whether any information has changed. 80 Fed. Reg. at 57,947. Such a requirement will not increase environmental protection because EPA will be aware already of the information to be provided through its electronic manifest system. Instead, it just leads to increased paperwork and burden on both the generator and agency personnel.

EPA offers a sensible alternative for consideration  -  requiring re-notification for specific changes  -  ownership or generator category. This option more appropriately matches the burden and benefit. See 80 Fed. Reg. at 57,948. Re-notification in the event of a change of circumstances is a prudent and reasonable requirement, and EPA should adopt the alternative in place of the proposed provision. (0107)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). Similarly, as mentioned above, E-manifest is not able to identify the category of the generator shipping its waste.
Comment: BNI-WTP suggests the best alternative would be to require MQG (SQG) or LQG to re-notify if there is a change in ownership or generator status (0123)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: In addition to the 2-year time frame for LQGs to re-notify and the proposed 4-year time frame for SQGs to re-notify, the Expert Group proposes re-notification be required at any time for any/all handlers that are required to have an EPA ID Number, if any of the following information changes:
:: Site Name
:: Ownership
:: Operator
:: Generator Status or other Regulated Activity changes, including site closure
o EPA ID Inactivation: The RCRA Subtitle C Site Identification (Site ID) form has data field requirements that potentially cannot be met when inactivating a site (e.g., current owner and/or operator may not be known). We suggest either a new form specific to requesting inactivation of an EPA ID Number be developed or perhaps a new source type be created within RCRAInfo specific to inactivation. The new source type could have a much smaller set of data requirements so the record would be easier to process.
o Closure of Accumulation Units: As stated in the LQGs Closing an Accumulation Unit section later in this document, the Expert Group would prefer that all sites required to have an EPA ID Number submit a re-notification within 30 days of when they close. (0125)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: The Expert Group suggests that if an SQG were to re-notify under the above conditions within 12 months of the four-year anniversary, they would not be required to notify again within the next four years unless they had another change in the above information before that time.

The Expert Group also recommends that any handler with an EPA ID Number re-notify when Site Contact information changes, but does not believe this should be required. (0125)
Response: The Agency has adopted the above suggestion and will allow SQGs that re-notify one year or less before the state's re-notification date to forego re-notification.
Comment: Require re-notification by rule with event-based triggers (rather than biennially). This would avoid imposing an additional burden on those generators who follow the EPA Instructions and state rule requirements, while making clear in the rule itself that re-notification is required when site conditions change. (0133)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: NextEra Energy supports EPA's alternative re-notification proposal requiring notification due to a change in ownership or a change in generator category as preferable to a bi-annual re-notification. The alternative is preferable as it avoids the unnecessary burden on the regulated community of resubmitted unchanged information and the burden on State agencies required to process unchanged information to no benefit. Also, application of the alternative would more clearly identify locations where a change has occurred. (0163)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: DC also supports the proposed modification which mandates re-notification within the suggested 30 days for change of owner or operator. DC recommends expanding re-notification to also include changes in waste streams or contact person within the same 30 days. (0248)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: USWAG strongly believes SQGs should not be required to submit periodic re-notifications unrelated to changes in ownership. Imposing this requirement would reduce the incentive for a generator to reduce waste and become a SQG. Moreover, EPA has presented no justification for requiring re-notification when SQGs change status and become LQGs, which will otherwise become obvious through the existing biennial reporting process. Therefore, requiring periodic re-notifications for SQGs is unnecessarily burdensome and does not provide any additional benefit to the Agency. As mentioned, USWAG encourages EPA to require re-notification only in the event of a change in ownership. With regard to such re-notification, USWAG strongly urges EPA to extend the notification period from 30 days to either 60 or 90 days.

SQGs and LQGs should be required to re-notify only in the event of an ownership change, (0093)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify) when a specific event occurs, such as change in ownership.
Comment: Dow does not support re-notification by SQG before February 1 of even numbered years; EPA should require SQG to re-notify EPA upon the change in ownership or operational status (to LQG or VSQG or upon cease of operation). (0131)
EPA should require SQG's to re-notify upon change in status or cease in operation instead of every two years as is proposed in section 262.18(d)(i)  (0131)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify) when a specific event occurs, such as change in ownership. Under the final rule, LQGs will need to notify EPA or their state when they close their facility.
Comment: The MPCA also does not support re-notification triggered only by information changes and strongly cautions the EPA against adopting this approach. The MPCA's experience with almost three full decades of hazardous waste notification and re-notification handling is that it is the very requirement to submit a periodic re-notification that at least reminds, and often motivates, generators to re-check the information already on file (i.e. most generators often won't know what is on file with their regulator until they check in order to submit a re-notification). Generator employee turnover and other changes (E911 address reallocation, e-mail provider switching, business ownership transfer, etc.) preclude most businesses by the MPCA's observation from maintaining an accurate awareness of what was previously submitted to regulators, thus only requiring re-notification on information changes most commonly results in a site `dropping off the radar' and comprising an information black hole unless and until it is proactively contacted by regulators in future (during scheduled inspections or upon a complaint). (0232)
Response: EPA agrees with this commenter that event-triggered re-notifications (based on change in information or on occurrence of certain events) are not effective, and is not adopting this approach. While the Agency took comment on this option, we, like this commenter, believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify) than an event-triggered re-notification process. In fact, the above commenter strongly cautioned EPA to not adopt this approach and to learn from Minnesota's negative experience requiring re-notification when events occur. EPA and the states also have experience regarding how to implement a census re-notification process via the Biennial Reporting process for LQGs that they can apply to the new SQG re-notification process.

Comment: Our stated preference would be for recertification forms only to be filled out when any major changes are made for each generating location required to fill out the form. At that time, the form would be due to the EPA within 30 days of the changes. (0142)

 Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: The stated goal of maintaining accurate information for SQGs can be achieved through notification of facility changes (ownership, contact information, etc.). (0152)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify).
Comment: Since, current regulations do not specifically require notification of a simple address change, NextEra Energy request that EPA clarify the full basis for the statement and how state request to the contrary should be handled. (0163)
Response: States can always be more stringent than the federal program and require such information.
Comment: We suggest adding "stopped operations" to the list of SQG event-drivers that trigger re-notification.. (0183)
Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.
Comment: Regarding re- notification for changes in facility ownership

Are SQGs that do not re-notify subject to enforcement action for violation of an independent requirement?
Response: Yes, SQGs that do not re-notify may be subject to an enforcement action.
.
Comment: CESQGs can be episodic SQGs - do they have to re-notify?
Response: Yes, they will have to notify EPA or their state if they want to take advantage of the episodic generation provisions in today's rule.

Comment:  Non-notification has been considered significant noncompliance under the enforcement response policy. What is EPA's expectation regarding SQGs that do not re-notify?
Response: SQGs not re-notifying every four years as mandated by EPA or their authorized state will be out of compliance with this independent requirement and subject to possible enforcement action.
Comment: If a generator goes bankrupt and abandons waste, leaving the landlord responsible for waste disposal, does the landlord have to re-notify? Or can the landlord sign the manifest "on behalf of" the tenant that abandoned the waste?  (0214)
Response: While landlords may lease the property, it is the generator with the RCRA ID that is responsible for complying with all applicable RCRA regulations. LQGs that close their facility are subject to notification and clean closure requirements, among other RCRA requirements.
Regarding the question, can the landlord sign the manifest "on behalf of" the tenant that abandoned the waste, this question is beyond the scope of this proposed rule. Although EPA is not obligated to respond to this comment since it is beyond the scope of the proposed rule, nevertheless, EPA provides the following general response as an opportunity to explain the RCRA regulations. A landlord could potentially be a generator of hazardous waste, depending on specific facts.  If a landlord becomes a generator, he must sign a manifest for any off-site hazardous waste disposal. However, if a landlord is not a generator, a landlord would not sign a manifest "on behalf" of a tenant who is a generator.
If the landlord ends up managing the bankrupt generator's hazardous waste, the landlord becomes a co-generator of this hazardous waste and must comply with all applicable generator requirements. If the landlord arranges the off-site transportation of its tenant's hazardous waste, the landlord must comply with generator manifest requirements.  Specifically, the landlord must prepare and sign the manifest and identify itself as the generator on the manifest on behalf of both parties. In this scenario, both the landlord and the tenant are held jointly and severally liable for compliance with the generator requirements at 40 CFR Part 262, though only one party needs to meet these requirements. However, EPA reserves the right to enforce against any of the parties if the requirements of Part 262 are not adequately met.
Comment: One State believes in order to solve the potential problem cited in the preamble (generator status changing back and forth without re-notification), and because the generator status is a piece of information so critical that it should be kept constantly up-to-date, they recommend adding the requirement for re-notification when generator status changes in addition to the two-year cycle of re-notification. (0217)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Comment: 1. Re-notification for small and large quantity generators should only be required upon change of status.

EPA seeks comments regarding proposed re-notification requirements for small and large quantity generators. 80 Fed. Reg. 57,947-48. The Agency should require generators to submit notifications or re-notifications only upon a change in status. As EPA noted in the proposal, this would appropriately reduce the burden, particularly on small quantity generators, whose status changes are infrequent. Id. Requiring an update upon change of status furthers the Agency's stated goal of retaining up-to-date information on the status of generators without imposing unnecessary burdens. [Footnote 2: PCA members believe it would be inappropriate for EPA to require small quantity generators to submit re-notification more frequently unless already required by a state regulator. However, in the event EPA selects this option, which it should not, it would be less burdensome for generators to submit notification on 2 year calendar intervals at a date certain than it would be to do so on a rolling basis.] (0241)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Comment: If EPA chooses to include re-notification in a final regulation, then ACA highly recommends EPA adopt one of its proposed alternative approaches to re-notification in order to minimize burden on generators and the as well as the states. EPA's proposed alternative approach is that instead of requiring LQGs and SQGs to re-notify every two years or a determined period of time, LQG and SQG must only re-notify in the event of a change to certain information, such as a change in ownership and change in generator category. This will both satisfy EPA's interest in eliminating outdated information, and will not waste the resources of states or regulated entities subject to this requirement. (0262)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Comment: In order to assure compliance and oversight, EPA should also require generators to submit additional notices whenever there is a change in generator category or ownership, so that the information available to authorities and the public is always current and comprehensive. In light of the possible limitations in notices of changes, however, such notices should be required in addition to, but not in place of, the proposed biennial notification requirement, which provides regular reporting. (0264)

Response: While the Agency took comment on this option, we believe that having EPA and states conduct a census re-notification process every four years is a more cost effective process guaranteeing a greater response rate than requiring a self-initiation process on the part of generators (i.e., from past experience, EPA and the states have had to remind many generators they failed to re-notify). However, States can always be more stringent than the federal program and require such information.

Section 4.3.3 - Other

Comment: EPA might even consider creating a method to withdraw old/obsolete identification numbers. The need for re-notification appears to be a symptom of antiquated data management systems within the agency and internal efficiencies should be considered before placing additional burdens on the regulated community. The fact that a federal agency in the 21st century is proposing expanded use of form submittal suggests that not all technology solutions have been explored. (0099)
Response: First, EPA notes that it is the states, and not EPA, that are primarily responsible for maintaining generator information, including cleaning up or removing RCRA IDs that are no longer active. Moreover, EPA disagrees that these information gaps are solely a result of internal information management inefficiencies and a lack of technology solutions. The problem lies in the lack of updated information that is submitted by the regulated community. In any event, SQG re-notification should facilitate this information management cleanup activity.
Comment: WRPS requests the addition of text to this proposed change to specify that reporting to authorized states using state forms in lieu of EPA forms meets this requirement. (0123)
Response: States may continue to use their own forms provided the forms include federal required information.
Comment: Clarification needs to be made if re-notification is in addition to state specific reporting requirements that are already in existence. Our local EPA offices rely upon our state regulators to provide detailed information about an EPA generator We see this as a means of streamlining administrative burden for all parties. (0142)
Response: Depending upon the state, SQG re-notification may or may not be in addition to existing state reporting requirements.
Comment: If change in status notifications can be made electronically through a federal and/or state web-site, should result in a higher compliance rate. (0160)
Response: The Agency agrees with this comment. Comment: In addition, those States should be able to use their biennial report forms instead of Form 8700-12 to collect SQG information. (0217)
Response: The biennial report forms include Form 8700-12. So yes, the agency agrees with this comment.
Comment: Additionally, the use of electronic manifesting has the possibility of making all of these requirements obsolete, as it could be possible to data-mine a facility's manifests and determine their generator status, thereby eliminating the EPA's concern about having an outdated count of LQGs and SQGs. (0217)
Response: The use of e-manifest data may be able to assist generators and states in completing the biennial report but not in completing all reporting requirements, such as SQG re-notifications.
Comment: One State suggests that the regulatory language in §262.18 reference re-notification by means of "myRCRAId and/or use of the EPA Form 8700-12." By encouraging use of myRCRAId, this lessens the manual data entry burden on States, as well as users. (0217)
Response: The Agency agrees that this is a good suggestion but use of myRCRAId is voluntary and up to the state to emphasize in their reporting requirements.
Comment: Another State suggests to reduce the burden for re-notification on the State (and on generators), generators with no changes to report should re-notify by being able to search for their information online and click a `no changes' button to constitute re-notification for that year. (0217)
Response: The Agency will look into the feasibility of providing such a mechanism.
Comment: DC recommends EPA provide a pre-programed report in RCRAinfo to generate a list of facilities that are overdue so that the States can easily follow up with those facilities that have not complied.(0248)
Response: The Agency will look into the feasibility of providing such a mechanism.

Section 4.4 - Determining generator category using 262.13

(a) Comment: Some commenters supported adding § 262.13 to the regulations to clarify how to count hazardous waste to determine generator category. (0082, 0085, 0093, 0134, 0178, 0248) Commenters stated that the proposed section would provide generators with greater clarity. (0134, 0178) One commenter stated that this requirement would make enforcement of requirements to make a generator category determination more straightforward. (0178)
One commenter supported the revision to make clear that generators have only one category in a calendar month. (0217)
(a) Response: EPA agrees with the commenters and is finalizing the addition of § 262.13 to describe how to count hazardous waste when making a generator category determination and to demonstrate what category a generator is in when it generates various types of hazardous waste.
(b) Comment: Several commenters stated that the wording of proposed §262.13 should be changed to put the emphasis on knowing your generator category rather on performing the steps in the regulation every month. (0082, 0131, 0178, 0224) One commenter stated that this requirement is not necessary for LQGs to meet as there is no maximum threshold. (0262) Commenters suggested language stating that § 262.13(a) should read "a generator must determine what category it falls into monthly" Instead of "a generator's category is determined monthly" or other language conveying that the generator category be calculated every month. (0082, 0224) One commenter stated that most generators will generate fairly constant levels of hazardous waste and will not need to perform calculations very often to ensure that they are in the correct generator category and that calculation is only needed when a generator expects that its generation in a particular month will be close to the limit of its generator category. The commenter suggested that this rule should be rewritten to make clear that when a calculation is conducted, it should account for wastes as specified in this rule, but that a monthly calculation is not required and that EPA should not be prescriptive in the method a generator uses to determine the quantity of hazardous waste generated in a month. The commenter recommend the following proposed regulatory text: "§ 262.13 (b) Generators of both acute and nonacute hazardous wastes. A generator who generates both acute hazardous waste and non-acute hazardous waste in the same calendar month shall determine its generator category for that month by doing the following:" (0131) One commenter stated that the language should be revised to read: "Determination required. A generator of hazardous waste must determine their generator category. A generator's category is defined based on the amount of hazardous waste generated each month, and may change from month to month. For the purposes of notification as required by §262.18 of this chapter and compliance with the generator requirements of §§262.14, 262.16, and 262.17 of this chapter, a generator's category would be the category associated with the greatest amount of waste generated in any calendar month throughout the year, except as provided for by §262 Subpart L. This section sets forth..." (0178)
(b) Response: EPA agreed with the commenters that the important requirement in § 262.13 is that the generator determine its category every month, not that it follow the exact procedures in the section to do so. EPA has revised the language from the proposal to state that "A generator must determine its generator category. A generator's category is based on the amount of hazardous waste generated in each month and may change from month to month."
(c) Comment: One commenter stated that the proposed § 262.13 does not discuss how generators generating either just acute or just non-acute hazardous waste should count their wastes. (0217)
(c) Response: EPA agreed with the commenter that this section should include clear procedures for generators generating either just acute or just non-acute hazardous waste and has added these procedures as § 262.13(a).
(d) Comment: One commenter noted that the proposed rule does not address whether or how to count hazardous waste at an LQG when it has come in from a VSQG in the same company under the new consolidation provision. The commenter suggested that the waste not be counted toward the monthly generation amounts at the generator but that it should be counted toward accumulation limits for generators. (0103)
(d) Response: EPA agrees with the commenter that waste generated at a VSQG and then consolidated at an LQG is not counted as waste generated at that LQG. Under federal regulations, there are no accumulation limits for LQGs.
(e) Comment: One commenter strongly supported the inclusion of Table 1 to explicitly describe the generator categories in the regulations. (0232) The commenter stated that including this information explicitly in the regulations is useful both for generators and for the courts in enforcement actions. (0232)
One commenter noted that there is no reference in the regulations in § 262.13 to the Table 1 for that section that was proposed and recommended that EPA include a reference in the final rulemaking. (0217)
One commenter suggested modifying Table 1 in the counting regulations to include the accumulation limits for VSQGs and SQGs. (0214)
(e) Response: EPA is finalizing Table 1 as part of the new §262.13 and has added an explicit reference to it in the regulatory text, as suggested by the commenter. EPA has not added the hazardous waste accumulation limits for VSQGs and SQGs to Table 1 because the accumulation limits are not part of the definition of the generator and do not have a role in category determination. When accumulation limits are violated, those wastes must be managed under the standards for the higher generator, but the generator does not change categories.
(f) Comment: One commenter asked how Table 1 for counting in § 262.13 works for states that have no adopted the 2008 or 2015 DSW rule. For example, on-site treatment or reclamation vs. counting rules. (0214)
(f) Response: The Definition of Solid Waste (DSW) rules regulate whether or not a waste is a solid waste. If a hazardous secondary material is managed under the new DSW exclusions, that material never becomes a solid waste and therefore cannot be a hazardous waste. The counting rules in § 262.13 would not apply to those materials.
(g) Comment: One commenter stated that EPA should clarify that generators, or at least retail generators, may "reasonably" utilize their business' knowledge to determine their yearly generator status and that EPA should provide generators guidance on what type and amount of information it would need to have to meet the "reasonableness" standard. The commenter also stated that EPA could use the Final Rule to specify to retail generators that they may use hazardous waste generation data gathered from past generation to establish generator status for current and future operations. by establishing an average for each retail store on an annual basis, such as taking the total annual volume and dividing it by twelve months to derive an average monthly volume. The commenter provided an example that as long as the average monthly volume is below 220 lbs., then the store would be CESQG. The commenter argued that there is no legal constraint on the EPA providing guidance on what is an acceptable methodology for a generator to establish its monthly waste generation totals [Footnote 15: Retail Associations' Comments to Proposed Rule, December 23, 2015, page 38.] and stated that the law requires a generator to determine its generator status on a monthly basis but does not state how to do so with any specificity. The commenter continued by stating that EPA need to use the final rule to acknowledge that Walmart has clearly done enough to determine its status through detailed data gathering and to set forth acceptable parameters for retailers to use business knowledge and waste data to determine generation status on a forward-looking basis. The commenter argued that EPA should be willing to allow averaging because practically, "averaging" would solve a huge issue for retailers: counting waste. The commenter also stated that if EPA does not deal with the "look back" issue, retailers must continue to always operate an SQG or LQG compliant program based on the chance that one or two months of the year a facility might cross the thresholds. The commenter argued that the "look back" problem means that even a hot dog stand vendor with a cart on the corner, would never be able to claim CESQG status based on his knowledge that his business obviously never generates more than a few aerosol cans or cleaning products a month because he would be forced to track and maintain his actual waste generation numbers and not dispose of his wastes until the end of the month when he can prove his generator status. (0233)

Response: The RCRA statute states that a small quantity generator regulations apply to "hazardous waste generated by a generator in a total quantity of hazardous waste greater than one hundred kilograms but less than one thousand kilograms during a calendar month." EPA interprets the language of the RCRA statute to mean that a generator's category is based on the amount of waste it generates in a calendar month and does not allow for a regulatory structure in which the category is based on a monthly average or a prediction of monthly generation rates, such as those the commenter suggests. In addition, EPA believes that the implementation and enforcement implications of such a regulatory structure would make it very difficult to implement by EPA and the states. In evaluating the comment, EPA also determined that the commenter's suggestion of examining waste per month over a year or longer to determine and average waste amount, would require more "looking back" at waste generation numbers than is currently required, since such an average would have to be updated on a regular basis. Finally, EPA recommends that if a generator is generating hazardous wastes in inconsistent amounts and is often near the threshold for being a small quantity generator or a large quantity generator, operating regularly at that higher level would be a responsible approach and would remove any uncertainty about regulatory requirements. That said, EPA is examining other areas of the regulations and generator program where it can address the concerns of the retail sector in complying with the RCRA regulations.

Section 4.5 - Documentation of waste accumulation unit inspections

Documentation of Inspections of Waste Accumulation Units (Sections 4.5 to 4.5.4)

Introduction
As part of the of the proposed Hazardous Waste Generator Improvements rule, the Agency at 80 FR 57952-53 requested comment on requiring generators to document the results of their container, tank and drip pad inspections. More specifically, the Agency requested comment on whether to require the following: (1) both SQGs and LQGs document the results of their required "at least weekly" container inspections; (2) SQGs accumulating hazardous waste in tank systems document the results of their tank inspections; and (3)both SQGs and LQGs accumulating hazardous waste on drip pads document the results of their drip pad inspections.
For purposes of this document, we have combined the response comments of (1)-(3) above because the reasons for and against inspection documentation did not vary across the different types of waste accumulation units.
Commenters were mixed on the need to require SQGs and LQGs to document the results of their inspections associated with containers, tanks and drip pads. Commenters in favor of requiring documentation of waste accumulation unit inspections (0060, 0082, 0085, 0092, 0108, 0116, 0126, 0134, 0164, 0178, 0181, 0182, 0185, 0188, 0189, 0195, 0206, 0217, 0223, 0229, 0248) provided one or more reasons to support documentation of inspections, including: the documentation process acts as a reminder to ensure there are no problems; the requirement is not unduly burdensome; companies are already in the habit of preparing and maintaining these types of records; the records are useful in tracking containers within the accumulation areas and corrective actions needed and taken; allowing a site's management/executive staff to review whether frontline employees are performing such inspections and ensuring they are happening; documenting that no releases occurred within the unit; and documentation of inspections will result in greater protection against hazardous waste releases into the environment.
Response: The Agency agrees with these comments but believes further analysis and evaluation is required before a final decision can be made to document the results of waste accumulation unit inspections. However, the Agency believes documentation of unit inspections is a best management practice that serves to protect generators from possible releases and cleanup and which also bolsters the preventive aspects of the RCRA program. EPA encourages generators to examine the feasibility of adopting this practice as part of their standard operating procedures.

Comment: One State supporting the requirement for documentation of weekly inspections by generators suggested adding documentation of test/inspect/maintaining emergency equipment, so that compliance may be monitored by regulators. (0217).
Response: The Agency believes this comment is beyond the scope of what was proposed.

Comment: One commenter suggested that it would also be very useful to both facility personnel and inspectors if, in addition to documentation of the inspections, generators are also required to document any corrective actions taken to correct issues identified during the inspections. (0223)
Response: The Agency believes that while further analysis and evaluation is required before a final decision can be made to document the results of waste accumulation unit inspections, certain best management practices can still be applied by generators. For example, documenting any corrective actions taken to correct issues identified during the inspections is a best management practice that serves to bolster the preventive aspects of the RCRA program (i.e., don't let releases occur). EPA encourages generators to examine the feasibility of adopting this practice as part of their standard operating procedures.

Commenters not in favor of requiring documentation of waste accumulation unit inspections (0077, 0093, 0107, 0160, 0212, 0219, 0220, 0240, 0241, 0253) stated that adding additional recordkeeping requirements shifts the focus away from actual storage practices to secondary recordkeeping practices; there wasn't sufficient justification for imposing this requirement; there was no added benefit because accumulation units in poor condition have obviously not been regularly inspected and could most likely be cited for failing to inspect at least weekly; many generators already document their inspections as part of its best management practices, and the Agency would be better served by increasing outreach to small generators to increase awareness of the inspection requirement.
Response: The Agency believes that while further analysis and evaluation is required before a final decision can be made to document the results of waste accumulation unit inspections.

Comment: One commenter stated that EPA should clarify that these requirements only apply to units in central accumulation areas and do not apply to all satellite accumulation areas ("SAAs"). In SAAs, generators manage a wide variety of wastes in many locations throughout a facility and these containers may not even be present in a given location for a full week. Moreover, these containers always remain under the control of the generator. (0093)

Response: SQGs and LQGs accumulating hazardous wastes in satellite accumulation areas are not required to inspect their containers under today's final rule (as with the previous rule as well) so EPA does not think additional clarification is necessary. To the extent these containers remain under the control of the operator, ensuring releases do not occur should be a best management practice easily implemented.

Comment: One commenter mentioned that many states already have this is a requirement and many generators already record inspections. For these reasons, this proposed requirement should not be overly burdensome to industry. I would also encourage EPA and states to allow facilities to use technology (e.g., tablets) to document (record) inspections. (0160)
Response: Because of such comments, the Agency has held off in making a final decision to document the results of waste accumulation inspections until further analysis and evaluation occurs.
Comment: One commenter did not think additional recordkeeping was necessary because such records are already maintained and because recordkeeping is the most typical kind of enforcement violation that inspectors find. This commenter went on to say if this requirement is retained EPA should make compliance more flexible. Electronic pads are frequently used on-site to maintain such records instead of paper logs at the location of equipment. These records are more accessible to managers and should be an acceptable alternative. (0240)
Response: The Agency agrees that if generators voluntarily conduct waste accumulation unit inspections, use of electronic tablets may prove a cost-effective investment since it easily can maintain a history of inspections and associated findings.

Other Comments
Comment: One commenter (0160) stated that generators should be allowed to use tablets or similar devices to perform required container and tank inspections. As long as the inspection data cannot be tampered with or modified by the company (e.g., date and time of the inspection, the person performing the inspection, inspection findings, etc.).
Response: The Agency agrees that if generators do voluntarily conduct waste accumulation unit inspections, use of electronic tablets may prove a cost-effective investment since it easily can maintain a history of inspections and associated findings.
Comment: One commenter (0217) suggested that if EPA were to require documentation of weekly inspections, then they should be accurate. Inspections performed by State officials often reveal a facility's weekly inspections indicate everything is fine, yet the inspection reveals the facility has been failing to correctly document inspections as evidenced by the labeling, dating, and condition of containers. This commenter also stated that they believe inspections should be documented regardless of the amount of waste generated or accumulated.
Response: The Agency agrees with the above comments as best management practices that should be voluntarily adopted.

Comment: This commenter (0217) also stated that EPA should clarify the definition of "weekly" to mean within seven (7) days. The lack of clarity regarding the definition of weekly has been a significant source of confusion for generators and has resulted in violations on multiple occasions.
Response: This comment is addressed below with several others.
Comment: One commenter (0219) stated that they do not think a signature should be required on the inspection forms. However, if required, the rule should allow the "signatures" to be any form of employee identification. Many plant inspection forms are completed by personnel electronically and they sign by entering employee identification numbers. EPA's rule should accommodate this common practice.
Response: As stated above, the Agency is not moving forward with requiring generators to document the results of their waste accumulation unit inspections. However, we defer to any states that already require documentation of waste accumulation units in determining whether inspection forms may be signed electronically.
Comment: Four commenters (0078, 0096, 0217 and 0256) requested that EPA clarify the term "at least weekly" as the term "weekly" is not defined in the regulations. One commenter (0078) understood the term to mean "once each calendar week". This same commenter (0078) referenced one piece of EPA guidance from 1983 that states "this term is taken to mean that "there must not be more than 6 calendar days between inspection dates [Footnote 8: EPA, "Permit Applicants' Guidance Manual for the General Facility Standards of 40 CFR 264", SW-968, October 1983, p. 5-81.]." Note that this guidance is for applicants for final status permits and hence is unlikely to be consulted by generators. This inflexible interpretation is being understood as the requirement by some authorized states. Other states have modified the language to specifically allow inspection once each calendar week. Please clarify that "weekly" means "once each calendar week" or provide justification for not allowing more than 6 calendar days to elapse between inspections."
Another commenter (0096) requested EPA "consider clarifying what is meant by "weekly" inspections. Is an inspection done on Monday of one week and Friday of the next week with eleven days in between acceptable? If the intention is that inspections be done at least every seven days, defining "weekly" or replacing it with "every seven days" would be clearer."
Another commenter (0217) stated that EPA should clarify the definition of "weekly" to mean within seven (7) days. They stated, "The lack of clarity regarding the definition of weekly has been a significant source of confusion for generators and has resulted in violations on multiple occasions."
Still another commenter (0256) requested that EPA clarify the meaning of "at least weekly", i.e., whether it means at least once per calendar week or if it means no further apart than seven days to the hour. They stated they believe the latter would be unreasonable as an inspection made Monday morning one week and Monday afternoon the following week would be longer than seven days to the hour.
Response: The Agency believes the term "at least weekly" to mean "at least once each calendar week." Under this interpretation, while the calendar day an inspection could occur may change from week to week, one inspection would be required to occur within the calendar week as identified by the generator. Thus one generator could define their calendar week as Monday through Sunday while another generator could define their calendar week as Wednesday to Tuesday of the following week. Whatever the prescribed calendar week would dictate the days an inspection would be required to occur.

Section 4.5.1 - Container inspections (SQGs & LQGs)

All comments organized to this section of the comment outline are responded to under Issue 4.5.

Section 4.5.2 - Tank inspections (SQGs)

All comments organized to this section of the comment outline are responded to under Issue 4.5.

Section 4.5.3 - Drip pad inspections (SQGs)

All comments organized to this section of the comment outline are responded to under Issue 4.5.

Section 4.5.4 - Other

All comments organized to this section of the comment outline are responded to under Issue 4.5.

Section 4.6 - Closure requirements

Comment: Part 262.17(a)(8)

Although NMED agrees with including closure for LQGs, the following questions arise;

1. Does this section apply to a facility that changed their generator status to LQG, one or twice during their operations?

2. Is this requirement retroactive or going forward?

3. How will the new episodic generator rule apply to this section?

4. How will regulators enforce this rule on facilities that go out of business? (0060)
Response:

 Does this section apply to a facility that changed their generator status to LQG, one or twice during their operations?

As has always been the case, implementation of when the LQG closure requirements apply in the case when the generator changes generator status up from VSQG and SQG to LQG and from LQG down to SQG and VSQG, is a site-specific determination. If a facility has been an LQG during its lifetime, technically the LQG closure provisions apply. But, EPA recommends that a generator work with its state especially if the facility has only been an LQG for a short time during its lifetime.  EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure.. But, EPA recommends that a generator work with its state especially if the facility has only been an LQG for a short time during its lifetime.

 Is this requirement retroactive or going forward?
   Answer: There are only 2 new provisions under the reorganized LQG closure section at 262.18(a)(8).  These are (1) the provision to notify prior to closure and upon closure and (2) the provision that container central accumulation areas must either be cleaned closed or closed as a landfill like other HW accumulation units (i.e., tanks, containment buildings, and drip pads).  Both of these new provisions are not retroactive and only apply going forward once the final rule is in effect. The other closure provisions for LQGs are simply being moved into 262 to make it easier for the regulated community. The rest of these closure provisions have applied to LQGs before this final rule and will continue to apply going forward.
 How will the new episodic generator rule apply to this section?
   Answer: A VSQG or a SQG generator who has an episodic event under 40 CFR 262 Subpart L and would normally become an LQG, will now be able to maintain their normal generator category provided they comply with all of the conditions. Thus, they won't become an LQG and trigger the closure requirements.
 How will regulators enforce this rule on facilities that go out of business?
   Answer: LQGs will be required to notify EPA or their state using form 8700-12 no later than 30 days prior to closing the facility and also notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). If the facility cannot meet the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv), then it must notify EPA using form 8700-12 that it will close as a landfill under § 265.310 of this chapter in the case of a container, tank or containment building unit(s), or for a facility with drip pads, notify using form 8700-12 that it will close under the standards of § 265.445(b).
Comment: As an initial matter, we suggest that closure requirements should only apply to LQGs that regularly operate at this category. Facilities that are only regulated as LQGs less than half of the year should not be subject to these standards. These requirements would otherwise penalize facilities that were only episodically triggering this classification and impose significant costs and burdens on these facilities when they do not regularly manage these volumes of waste. (0093)

Response: EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements. Similarly, closure requirements will not apply to wastes accumulated in satellite accumulation areas or situations where either a VSQG or SQG has an episodic event resulting in a generator generating 1,000 kilograms or more in a calendar month that choose to take advantage of the episodic generation provisions in this rule.
Comment: USWAG adamantly opposes the extension of closure standards to containers used to accumulate hazardous waste at LQGs. These units differ significantly from tanks, drip pads and containment buildings in that they are portable (meaning they can move from place to place within a facility and can even permanently leave a facility). Requiring closure for these units will require generators to (1) determine every place at which a container was present for central accumulation, and (2) ensure clean closure, or (3) treat the area as if it was a landfill. This would be nearly impossible for some facilities to perform retrospectively, and would be incredibly burdensome even if it was only a prospective requirement. Furthermore, this requirement is wholly unnecessary since central accumulation areas are already subject to weekly inspection requirements and secondary containment and spill remediation requirements. If EPA insists on adopting this approach, it should ensure the regulatory text clearly delineates that this requirement does not apply to satellite accumulation areas or remediation projects where roll offs are used to accumulate waste. (0093)
Response: The Agency disagrees with the above commenter. Just because an LQG accumulates hazardous wastes in containers doesn't exclude the facility from the same closure requirements as an LQG accumulating hazardous wastes in tanks, drip pads and containment buildings. Considering many LQGs accumulate hazardous wastes in containers makes this an even more important reason to require closure.

LQGs will be able to close a waste accumulation area and reopen it if it so chooses. All it must do is document where the waste accumulation area was and clean close when the facility closes or clean close when the unit closes.  For facilities in business for many years, this may or may not be a challenge in identifying waste accumulation areas they may no longer use. Similarly, as the commenter points out, this should not be a difficult provision to implement and comply with if they conducted their weekly inspection requirements, included secondary containment and spill remediation requirements.

Comment: Closure: The proposed rule also includes several changes to generator closure regulations. [Footnote 18: 80 Fed. Reg. at 57953-57956.] EPA's proposal would strengthen closure regulations for LQGs accumulating hazardous waste in containers in central accumulation areas that plan to stop hazardous waste accumulation in those containers. LQGs in this circumstance would be required to meet the same type of closure regulations that apply for tanks, drip pads, and containment buildings, including in those situations where a generator is not able to demonstrate that its contaminated soils can be practicably removed or decontaminated. TDEC is generally supportive of this requirement. (0116)

Additionally, the proposal would require closure as a landfill in instances in which LQGs accumulating in containers where clean closure is not achieved. As proposed, LQGs would be required to notify EPA or the state no later than 30 days prior to closing an accumulation area and within 90 days after closure of unit or facility. TDEC is supportive of this proposed change, but also recommends that EPA consider inclusion of the proposed closure requirements for all generator classifications, not just LQGs. If similar problems exist with either a CESQG or SQG container storage area, then a similar requirement would be considered applicable based on consideration of the potential effect on human health and the environment. TDEC also recommends that EPA's final rule clarify that closure procedures are applicable to container accumulation areas, not individual containers, e.g. drums. (0116)
Response: With respect to EPA considering the inclusion of closure requirements for all generator classifications, not just LQGs, we are not prepared at this time to expand closure requirements to those generator categories. However, situations may exist where a generator fluctuated between VSQG and LQG, or SQG and LQG numerous times over the life of the facility. In such situations, EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements.
Comment: CIANJ does not agree with applying closure standards to containers such as roll-offs and vacuum boxes used to accumulate hazardous waste during site remediation activities. These units differ significantly from tanks, drip pads and containment buildings as they are portable temporary storage units and will permanently leave a facility prior to the completion of the remediation. Sometimes these units are temporarily staged outside of a Corrective Action Management Unit (CAMU) or Area of Concern (AOC) while awaiting transport and the way the generator closure requirements are currently written, these staging areas could be subject to closure requirements simply because a truck was parked overnight in a parking lot.

CIANJ requests that the rule be clarified to state that closure requirements do not apply to satellite accumulation areas or remediation projects where roll offs or other temporary storage containers are used to accumulate remediation wastes. (0120)
Response: Closure requirements will not apply to wastes accumulated in satellite accumulation areas or situations where either a VSQG or SQG has an episodic event resulting in a generator generating 1,000 kilograms or more in a calendar month that chooses to take advantage of the episodic generation provisions in this rule. For example, a VSQG or SQG with a remediation project may be able to take advantage of the episodic generation provisions in this rule.
Comment: Existing RCRA regulations do not include stringent closure requirements for generators that cease handling hazardous waste in accumulation units. One exception is the closure performance standards for CAAs operated by LQGs.

EPA is proposing to impose substantial new requirements for LQGs that close CAAs. Specifically, the LQG would have to notify EPA at least thirty days prior to a planned closure. Second, if the CAA was used for container storage, the closure requirements would be akin to those applicable to tanks, drip pads, and containment buildings, i.e., the LQG would have to remove all wastes and residues, decontaminate or properly remove or dispose of all contaminated equipment, structures and soils. If the CAA cannot be cleaned to these standards, it would have to be closed and managed as a landfill (including post-closure management and financial assurance). Lastly, the LQG would have to notify EPA within ninety days of the closure and report whether the unit was clean-closed or closed as a landfill.

The agency is requesting further comment on whether LQGs should be required to certify that a CAA was closed in accordance with the above. EPA also requests comment on whether SQGs should be required to notify EPA after closing a CAA. It is unclear from the NPRM whether EPA also intends the proposals to apply to SAAs.

IME supports most of the proposed closure requirements. Proper management during the life of the CAA should ensure that no extensive cleanup measures will be required at closure. IME does not believe, however, that a post-closure notification is necessary. EPA would have notice that closure is planned and can follow-up if the agency feels it is necessary. (0126)
Response: We thank you for your support. As for the comment that post-closure notification is not necessary, we disagree. We believe it is necessary because both EPA and the states need to know, or have the ability to verify, that the facility clean closed effectively and have included this requirement in the final rule. In addition, we note that closure requirements will not apply to hazardous wastes accumulated in SAAs.
Comment: However, EPA does not limit the reporting to units justified by the damage cases cited; rather, EPA proposes to extend the notification requirements to hazardous waste tanks, drip pads, and containment buildings as well. In the case of hazardous waste tanks, existing regulations require secondary containment and reporting of environmental releases from tank systems of quantities greater than 1 pound. This allows a problem with an environmental release to be addressed immediately and not allowed to wait until closure. This is the appropriate way to address releases from 90 day areas rather than waiting until closure. As such, current regulations regarding hazardous waste tank systems already address the concerns expressed in the preamble and should not be subject to the notification requirements.

The preamble clearly appears to be referring to drum or other small container storage.
However, EPA is overlooking other container storage for which justification is also not provided. Many facilities load hazardous waste from tanks or process units directly into tank trucks using loading/unloading facilities designed and used for products and raw materials and secondarily for waste. These facilities by necessity are built on concrete or other non-earthen surfaces and include secondary containment and/or drainage to collection facilities or directly to onsite waste water treatment facilities.

Trailer loading stations may occasionally be used as a 90 day accumulation area with some frequency (every 60 days for example), but wastes are not stored on the pad for over a couple of days as the facilities are used for multiple purposes. In addition, temporary 90 day accumulation areas are sometimes established at such locations and then closed. For example, a large industrial complex may have a scheduled shut down for maintenance and set a roll-off or tank truck on a trailer pad for a couple of weeks to receive tank clean-out or solids removal. The concrete trailer pad with containment and drainage to NPDES permitted wastewater treatment facilities is used for a couple of weeks as a temporary unit. Personnel are RCRA trained, a unit contingency plan is established and inspections are conducted during this period of time. The shutdown is complete and the trailer pad is put back into service for raw material or product loading and unloading for which the unit was designed. This is a routine practice in many manufacturing facilities. Or, a facility can have a loss of power or other condition that results in the generation of hazardous waste in excess of what established areas can manage. A new unit for small containers may be established, used for a short period of time and returned to design use after the event. In such cases, a 30 day notification prior to closure is not possible. Such units do not represent the potential for environmental harm as documented in the preamble. It would be of no value to make a 30 day notification of closure on a unit that has never been opened and will only be used for a period of time less than 90 days.

To address the issues presented in the preamble and to not simply use the improperly managed small container cases to substantially extend the reach of the current regulations without justification, Eastman proposes that 90 day units that have secondary containment or 90 day container areas (this includes not only drums, but tank trucks, roll-offs, etc.), that have secondary containment or are located on surfaces such as asphalt/concrete that drain to wastewater treatment systems or that manage only solids with no free liquids should be excluded from all reporting requirements. For example, the objectives of the notification requirements for closure could be satisfied with the following requirement at 262.17(a)(8)(i):

"Notification. (A) Notify EPA no later than 30 days prior to closing the site or closing a unit that accumulates hazardous waste at that site for units located on the ground or in an area (concrete or asphalt) that drains to the ground. For temporary units in operation less than 30 days, the notification shall be made 5 days prior to closure."

(B) For units identified in 262.12(a)(8)(i)(A), notify EPA . . . .

Eastman is also confused by EPA's statement at 80 FR 57955 which states that "Form 8700-12 would be used for the final notification." This form does not include a listing of each and every 90 day area at a facility. To modify that form to include specific 90 day areas and the wastes each area contains is NOT the function of the form and would create unnecessary burden. EPA should simply require a letter describing the closure and its compliance with the performance standards. In no case should the post closure notification require a certification as there can be many interpretations of the listed performance standards.

Finally, these notification requirements should never apply to satellite accumulation areas without some evidence that they pose a risk. In fact, most satellite units are located inside buildings such as laboratories or in maintenance shops and do not include free liquids such as empty aerosol cans or wipes. Without question, closure notification requirements applicable to satellite accumulation areas would be an overreach. (0128)
Response:  We respond to the comments of this commenter as follows.
 SAAs are not affected by these provisions.
 Regarding, temporary 90 day accumulation areas that are sometimes established at locations and then closed, the Agency has modified the rule to account for such situations. In such cases, the generator can place a note in their operating record stating they have opened a closed a temporary 90 day waste accumulation area and address and closure requirements when the facility closes.
 The commenter suggested that 90 day units that have secondary containment or 90 day container areas (this includes not only drums, but tank trucks, roll-offs, etc.), that have secondary containment or are located on surfaces such as asphalt/concrete that drain to wastewater treatment systems or that manage only solids with no free liquids be excluded from all reporting requirements. The Agency disagrees with the suggestion because while such practices will help prevent releases, there is still no guarantee they cannot occur. Hence the need for verification on the part of the generator.
 Regarding notification using Form 8700-12, the commenter offers a good suggestion, but upon analysis, we cannot totally agree. As the commenter states, this form does not include a listing of each and every 90 day area at a facility. To modify that form to include specific 90 day areas and the wastes each area contains is NOT the function of the form and would create unnecessary burden. In lieu of this, EPA should simply require a letter describing the closure and its compliance with the performance standards. In no case should the post closure notification require a certification as there can be many interpretations of the listed performance standards.

In such situations, the Agency suggests that the LQG simply mention on Form 8700-12 that a letter is attached identifying the location of their waste accumulation areas and that they have either successfully or unsuccessfully closed each unit. Without knowing where the waste accumulation areas have been, how can a state or EPA ever verify the generator's letter?

Similarly, certification is not required in the closure regulations as much as an acknowledgement that the LQG has met the applicable closure requirements.

Comment: Eastman is concerned about the requirement to notify before and after closure of 90 day accumulation areas. At large facilities, there are many such 90-day areas. In most cases, these areas include tanks with mandatory secondary containment and large container areas such as concrete trailer loading and unloading areas. Although poorly managed containers stored on the ground may be an issue at some sites, the inclusion of ALL 90 day areas at every site across the country in these expanded notification requirements is unjustified and not required for the protection of human health and the environment. Eastman particularly objects to any requirement to "certify" closure without reasonable, definable objectives. (0128)

Response: In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.

Comment: 6. Closure Notifications and Standards §262.17(a)(8)

Agency records might also be improved by using Form 8700-12 for re-notification when an entire generator ID site will no longer be used for waste generation. This would be far preferable to the proposed notifications at §262.17(a)(8)(i). This proposal would require 30 day advance closure notification for individual hazardous waste accumulation areas within a still-active generator ID site. Comments submitted by the Regulatory Environmental Group for Missouri (REGFORM) describe in detail the potential to generate large numbers of such notifications, due to short-term <90 day storage areas being established for temporary construction or process modification work within an established generator ID site. Likewise, because of the gallon limits on satellite accumulation, certain large portable solids containers and liquid totes are managed as <90 day storage. These large portable containers are relocated as needed, either temporarily to transfer waste to a larger container/transporter, or for a longer time, to service waste generation that is moving to a new area. This routine movement of <90 day storage units within generator ID sites makes the proposed 30 day advance and 90 day post-closure notices an unworkable additional requirement that will impose a new workload on generators and authorized states or EPA.

The proposed closure standards at §262.17(a)(8)(ii) are less objectionable than the notifications, because they reflect what LQG generators already do, to avoid leaving areas of their plant unusable for production due to potential for employee exposure.

Proposed Change:

Omit that the entire proposed §262.17(a)(8) from the final rule, as imposing unnecessary paperwork on generators and agencies alike. (0133)

Response: In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.

Comment: NDEQ generally supports the proposal to update the closure conditions for the LQG permitting exemption in §262.34(a)(1)(iv)(B).

NDEQ supports the second closure proposal which would require that hazardous wastes accumulated in containers meet the same type of closure regulations as those applicable for tanks, drip pads, and containment buildings. As a large percentage of hazardous waste is accumulated in containers, NDEQ agrees with EPA that equivalent regulatory treatment is needed for containers in order to prevent adverse impacts to human health and the environment. (0145)

Response: The Agency appreciates the above comments.

Comment: EPA's proposed notification requirement whenever a LQG closes a "unit accumulating hazardous waste" is unduly burdensome and unneccessary, especially if the facility has not closed entirely. Would EPA require a facility to submit closure notification for a tank accumulating a waste that is no longer classified as a hazardous waste? For what size/type "containers and container units" would EPA require closure notification? Requiring a LQG (or possibly a SQG) that ceases all operations to submit a post-closure notification is reasonable. However, an additional pre-closure notification appears redundant. (0152)

Response: In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.

Comment: If EPA desires post-closure notification, TWC suggests that EPA revise the proposed provision to state the following:

"(B) Notify EPA within 90 days of completion of closure activities of a unit that accumulates hazardous waste at the site or of the site that it has either clean closed (e.g., complied with the applicable closure performance standards of § 262.17(a)(8)(ii)) or, if it cannot clean close, notify as a landfill under § 265.310 of this chapter."

Revising the notification provisions in the manner provided above will clarify precisely when generators should provide notification to EPA.

In sum, TWC believes that EPA should not include pre-closure notification in the final rule, and that if the final rule contains any closure notification provisions, it should only be the revised post-closure provision above (0164).

Response: The Agency has addressed this comment as follows. In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area.

Comment: Comment E discusses concerns with proposed closure provisions and suggests revisions to these provisions.
      E. Generator Closure Regulations

TWC seeks clarification from EPA on statements in the preamble regarding closure regulations applying to SQGs. TWC also has concerns regarding the consolidation of LQG closure provisions and the proposed addition of closure notification obligations for LQGs.

In the preamble, EPA broadly states that SQGs are not subject to federal closure regulations. The preamble asserts, "[T]here are no federal regulations for closure of a waste accumulation unit or site closure by SQGs . . . ." See 80 Fed. Reg. 57,955, col. 3. However, SQGs accumulating hazardous waste on drip pads currently comply with the drip pad specific closure provision in part 265 subpart W (§ 265.445). See Wood Preserving Guide, supra, at section 3-25. TWC believes that SQGs accumulating hazardous waste on drip pads should be required to adhere to the § 265.445 closure provision because it ensures good stewardship practices by drip pad operators. TWC therefore requests clarification on the preamble statement and the applicability of § 265.445 closure requirements to SQGs accumulating hazardous waste on drip pads. (0164)
Response: Under the final rule, SQGs accumulating hazardous wastes on drip pads will not be subject to closure requirements. However, TWC members that are SQGs accumulating hazardous waste on drip pads may wish to continue to adhere to the § 265.445 closure provision because it ensures good stewardship practices by drip pad operators.

Comment:  o Closure of Accumulation Areas (Section 5.10.3 below). EPA's proposed rules for closure of generator accumulation areas should not apply to areas holding small quantities of hazardous wastes, such as those in the retail sector. EPA itself has acknowledged that these closure requirements are unwarranted for small areas, and has long exempted SQG accumulation areas storing less than 6000 kg. The Agency should issue a similar exemption for retailers and/or LQG facilities storing less than 6000 kg. (0168)

Response: Closure requirements apply only to LQGs. Facilities generating less than 1,000 kilograms in a calendar month or less than 1 kilogram of acute hazardous waste are not subject to closure requirements.

Comment: 5.10.3 EPA's Proposed Rules for Closure of Generator Accumulation Areas Should Not Apply to Areas Holding Small Quantities of Hazardous Wastes, Especially in the Retail Sector

EPA has proposed a number of new requirements for closure of accumulation units at LQG sites. See generally, 80 Fed . Reg. at 57,953-56. For example, the proposal would require LQGs to clean close their container storage areas or close as a landfill if clean closure cannot be achieved. Id. at 58,000-01 (proposed to be codified at 40 C.F.R. § 262.17(a)(8)). It would also require LQGs to notify EPA at least 30 days prior to closure, and no later than 90 days after closure of all container or other storage areas. Id. EPA also requests comment on whether LQGs should be required to certify clean closure (or failure to clean close), and whether SQGs should be required to notify EPA within 60 days after closure.

The Retail Associations have several concerns with EPA's proposal regarding closure, as discussed below:

o The requirements for clean closure or closure as a landfill should not apply to areas handling only small quantities of hazardous waste. EPA, in fact, seems to recognize this fact in the proposal. For example, the Agency justifies the new requirement by focusing on the risks posed by improper closure at facilities that "generate a sufficient quantity of hazardous waste to require the use of a large number of containers each day." See 80 Fed. Reg. at 57,955 (also contrasting this situation with "LQGs [that] generate relatively small quantities of hazardous waste and therefore may not need many containers to accumulate their hazardous wastes"). Moreover, EPA states that there is no need for a comparable requirement for SQGs, since "SQGs ... have a waste accumulation quantity limitation of 6,000 kilograms." Id. If the proposed requirement to clean close or close as a landfill is not necessary for SQGs storing less than 6,000 kg of hazardous waste, it should also not be necessary for LQGs storing such quantities. In the retail sector, it is difficult to imagine any scenario where such large quantities would be stored (corresponding approximately to 30 barrels). EPA should therefore establish an exemption from this requirement for retail facilities and/or facilities storing only small quantities of hazardous wastes (e.g., less than 6000 kg). (0168)

Response: Closure requirements apply only to LQGs. Facilities generating less than 1,000 kilograms in a calendar month or less than 1 kilogram of acute hazardous waste are not subject to closure requirements.
Comment: o To the extent that closure of small container accumulation units does not warrant detailed closure standards, as discussed above, such units also should not be subject to any closure notification requirements that may be established. EPA claims that there may be some "potential benefit" to notification in such circumstances, but any such benefit is outweighed by the burden on the generator community and on the federal or state officials who might be inundated with notifications for small accumulation areas that they may not have known or cared about anyway and that likely posed little risk.

o EPA's proposal to require notification before and/or after closure of an accumulation unit (as opposed to an entire site) raises complex questions about what would constitute such closure. For example, if a generator sent all the wastes in its accumulation area offsite and did not generate any more hazardous wastes for several months, would that constitute closure requiring notification (and, if so, when)? If a generator were to move its accumulation area from one side of a room to the other, would that constitute closure of one area and opening up of a new area? The Agency has not addressed these issues, making it hard now to comment in a meaningful way, and even harder to comply if the proposal is finalized as is.

o EPA's proposal to require advance notification of closure is problematic in several respects. As noted above, it may not always be clear what constitutes closure or when it occurs. Even when closure is obviously taking place (e.g., when an entire site is closed), generators may not always know 30 days in advance that closure will happen. Particularly in the retail sector, advance notification may also create problems from the perspective of employee and community relations.

o The proposed requirements to notify before and/or after closure of accumulation areas would pose a substantial logistical challenge to companies with hundreds or even thousands of facilities, as is the case for many large retail chains. (0168)
Response: The Agency has addressed this comment as follows. In the final rule, the Agency provides flexibility to LQGs closing a waste accumulation area by allowing them to either place a notice in their operating record that they have closed the area, or notifying the Agency or their state they intend to clean close. This affords the generator the ability to reopen the waste accumulation area or permanently close the area
Comment: Preamble Section VIII.G. CT DEEP supports EPA's proposed improvements to the hazardous waste closure requirements for LQGs that cease using one or more hazardous waste storage areas, or that close their entire facility down. In particular, CT DEEP supports EPA's proposal to consolidate the existing closure requirements into a separate section within the generator regulations, and the proposed provision that would require a generator that closes a container storage area and that cannot completely remove all contaminated soil and/or groundwater to close the container storage area in accordance with the requirements for a hazardous waste landfill. With respect to the latter of these two changes, CT DEEP agrees with EPA that the existing regulations already require closure as a landfill for tanks for which all contaminated soil or groundwater cannot be removed, and that extending this requirement to container storage areas has been a long-standing oversight on the part of EPA.

However, CT DEEP requests clarification from EPA regarding exactly what is meant by the requirement that generators who cannot practicably remove all contaminated soils and wastes must "close the accumulation unit and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills...". In particular, must such a generator submit a Part A permit application? Should EPA or an authorized state enter such a generator into the closure and/or post-closure universe in RCRAInfo? Would such a generator become subject to site-wide corrective action? (0178)
Response: Whether a generator would actually have to meet all the requirements of closing as a landfill would be a site-specific decision, made in conjunction with EPA or the authorized state.
Comment: In addition, CT DEEP suggests that EPA consider adding a timeframe within which closure must be completed. The current closure requirements include no such timeframe, and although the notification requirements discussed above will serve to alert CT DEEP to the beginning and end of closure activities, there is nothing in the amendments that EPA is proposing that would prevent a generator from dragging closure activities out indefinitely (e.g., to avoid the expense entailed in such closure). CT DEEP notes that Connecticut's hazardous waste regulations currently require closure to be completed within 180 days of the final receipt of hazardous waste in a storage area.

CT DEEP also suggests that EPA consider some sort of closure requirements for SQGs. Connecticut's hazardous waste regulations currently require the SQGs comply with the closure requirements of 40 CFR 265.111, 265.113(a)-(c), and 265.114. These requirements were added to Connecticut's hazardous waste regulations more than ten years ago because CT DEEP had identified several instances in which SQGs had vacated a site leaving waste behind or without having properly cleaned and decontaminating their hazardous waste storage areas. (0178)
Response: As finalized, LQGs will have to notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). Similarly, if an LQG cannot meet the closure performance standards, the generator may request additional time to clean close, but it must notify EPA using form 8700-12 within 75 days after closing to request an extension and provide an explanation as to why the additional time is required.  These two sections respond to CT DEEP's comments and concerns.

Comment: 26. Page 57953, Section VIII.G.: Utah agrees with all proposed closure changes as a means to strengthen the closure regulations. (0185)

Response: The Agency appreciates the commenter's support.

Comment: IME supports most of the proposed closure requirements. Proper management during the life of the CAA should ensure that no extensive cleanup measures will be required at closure. (0188)

Response: The Agency appreciates the commenter's support.

Comment: IME does not believe, however, that a post-closure notification is necessary. EPA would have notice that closure is planned and can follow-up if the agency feels it is necessary. (0188)

Response: The Agency disagrees with the above comment. The generator has a responsibility to clean close and notify EPA or an authorized state that they have succeeded or failed in complying with the closure performance standards. Without the second notification, what assumption is the Agency to make? The second notification address that unknown.

Comment: SOCMA thinks this proposal is overkill in multiple respects. Principally, it may not be feasible, at an operating facility, to completely remove all contaminated structures or to eliminate all traces of hazardous waste. So long as the areas are not presenting risks to employees, and are not releasing contamination to the environment, SOCMA does not see the need for a higher standard of cleanup. Compliance with landfill requirements  -  particularly leak detection and groundwater monitoring systems  -  at an operating facility would be highly disruptive, to say the least. Similarly, a requirement to show financial responsibility for post-closure care for such minor levels of contamination at an operating facility would be a substantial cost and distraction. EPA should focus only situations where remaining contamination poses some realistic harm.  (0192)

Response: The Agency disagrees with the above comments. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. Otherwise, the performance standards have not changed, nor requirements for LQGs that cannot clean close and must close as a landfill. Similarly, the Agency has simplified notification and recordkeeping requirements per stakeholder comments.

Comment:  First, imposing a "clean close" requirement on all central accumulation areas is impractical and not grounded in real world closure scenarios. The storage of hazardous waste in containers does not present the same risk to human health and the environment as the storage of waste in other types of units. Waste stored in containers is generally removed from the central accumulation areas in the containers it has been stored in within the allowed accumulation time. Waste in containment buildings, drip pads and tanks are emptied from the structure or vessel providing the containment. Thus, containers used for storage are regularly rotated and replaced, making it easier to ensure the integrity of the containers. Thus, the closure and post-closure issues associated with container storage areas are substantially different from the closure and post-closure issues associated with accumulation areas with drip pads, tank systems or containment buildings.

The "clean close" standard simply should not apply to all central accumulation areas, and the inflexible closure and post-closure standards designed for landfills have little to no application to the safe closure of central accumulation areas where hazardous waste is stored in containers. EPA's proposal is an overreaction to the discreet Superfund damage cases cited. This anecdotal information does not adequately support EPA's expansive and burdensome revisions. NMA strongly encourages EPA to reconsider its approach to the issues it has identified in the Superfund program and find a more practical and reasonable regulatory solution. (0200)
Response: The Agency disagrees with the above comments. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.

Comment:  Second, NMA opposes EPA finalizing a 90-day notification requirement that the central accumulation area is clean-closed or closed as a landfill (with certification). Ninety days is simply not sufficient time to properly achieve clean closure of many hazardous waste units. This timeframe will force units that could achieve a "clean close" to be closed as landfills. Alternatively, if EPA were to finalize this requirement, the agency should give generators at least a year to determine the extent of contamination and potential remedial action. (0200)

Response: As finalized, LQGs will have to notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). Similarly, if an LQG cannot meet the closure performance standards, the generator may request additional time to clean close, but it must notify EPA using form 8700-12 within 75 days after closing to request an extension and provide an explanation as to why the additional time is required.  These two sections address the commenter's concerns.

Comment: EPA is proposing to enhance the closure notification requirements for the hazardous waste accumulation units at LQGs  -  EPA wants to require LQG to notify prior to and/or after closing a hazardous waste accumulation location or closure of the site altogether. Currently, this type of notification is not required and regulatory authorities do not know whether generators have abandoned the site, leaving behind hazardous waste that could subsequently result in a release to the environment and adverse impacts to human health and the environment. Thus, these closure notifications are important to ensure that LQGs close their hazardous waste accumulation location in compliance with the applicable closure regulations. Failure to properly close would be a violation of the hazardous waste accumulation exemption. EPA is also seeking comments if the closure requirements should apply to SQGs.

Requiring SQGs and/or LQGs to notify that a hazardous accumulation location is being closed will impose a slight additional impact on the facility due to the notification requirements. Existing regulations require SQGs and LQGs to remove hazardous waste within a specified time. (0206)

Response: The Agency appreciates the support of this commenter but points out that closure requirements are only applicable to LQGs.

Comment: 57953 - Generator closure
:: Apply to container storage areas - good, but what about generators that are subject to a state cleanup order for pre-RCRA releases, or releases from product tanks - TSDFs are subject to HSWA for these releases, but will generators also become subject to HSWA liability? What about situations where contamination cannot be attributed to a specific release, for example at dry cleaner sites that have been in operation since before RCRA?

Response: This comment is beyond the scope of this rulemaking.

Comment: 57955 - Central accumulation area closure
:: Can be multiple areas, often no record of where they are at a facility - contingency plan should cover, but often find situations where generators have exceeded the 3-day limit for satellite areas accumulating excess waste. What kind of notification and recordkeeping will be required on these?

Response: When closing the CAA, LQGs will have to update their contingency plan and have the option of either compiling with the applicable closure performance standards, or waiting to clean close until the facility closes. If they choose to wait to meet the applicable closure performance standards, the LQG will need to place a notice in their operating record as to the CAAs location, or alternatively, notify their authorized state or EPA region that they have met the applicable closure performance standards, or they must close as a landfill, or in the case of drip pads, comply with 40 CFR 265.445 (b).
Comment: :: Final closure - what documentation will the facility have regarding the locations of their 90 or 180 day units, when they become subject to closure? (0214)

Response: LQGs will have to notify EPA using form 8700-12 within 90 days after closing the facility that it has complied with the closure performance standards of § 262.17(a)(8)(iii) or § 262.17(a)(8)(iv). Similarly, if an LQG cannot meet the closure performance standards, the generator may request additional time to clean close, but it must notify EPA using form 8700-12 within 75 days after closing to request an extension and provide an explanation as to why the additional time is required.  We believe these two sections address the commenter's concerns.

Comment: Section VIII.G.1 (Page 57953): The States support the addition of closure notification requirements for LQGs. Some States would like to see a closure notification requirement for SQGs. One State believes the applicability needs some further clarification. For example, a few questions that come to mind include, are these requirements applicable only if the facility is a LQG at the time the 90-day accumulation area will no longer be utilized? What if the facility goes from LQG to SQG and the 90-day accumulation area becomes a 180-day accumulation area, are the closure requirements still applicable? If so, when the facility will no longer utilize the accumulation area or when they covert from LQG to SQG or CESQG? (0217)

Response: EPA and the states will make a case-by-case determination as to whether closure applies to SQGs that were previously LQGs based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements.
Comment: Section VIII.G.2 (Page 57954): The proposed rule includes requirements for LQGs to comply with closure standards similar to TSDFs. In particular, the proposed rule states, "Therefore, as with LQGs that accumulate hazardous waste in tanks, drip pads, and containment buildings, should a generator decide to close a container or stop accumulating hazardous waste in containers at the site altogether, it would be responsible for complying with the proposed regulations and removing all relevant hazardous wastes accumulated within 90 days of generating it and any hazardous wastes that also may have been accumulated in SAAs." Otherwise the LQG would be subject to all permitting requirements. How does a generator "close a container?" Containers are a one-time use unit and when full are shipped off-site to a TSDF. It is unreasonable to expect a LQG to perform closure activities in this situation. Most States agree with the proposed requirement for LQGs to comply with closure for particular units, but disagree with this proposal as it is written. The type of accumulation unit or site should be taken into account regarding certification of closure and closure requirements. Closure of a pallet with secondary containment is quite different than the closure of a room with secondary containment or a drip pad. EPA should clarify when the closure requirements apply (e.g., some LQGs will place pallets with secondary containment in an area of their facility where they have some room. When they move these pallets to another area of the facility, would they have to certify closure of the old area?). (0217)
Response: We agree with the commenter and have modified the regulations to account for situations where a container CAA is closed and re-opened. Also, SAAs will not be subject to closure requirements.

Comment: One State believes EPA's proposal would strengthen closure regulations for LQGs accumulating hazardous waste in containers in central accumulation areas that plan to stop hazardous waste accumulation in those containers. LQGs in this circumstance would be required to meet the same type of closure regulations that apply for tanks, drip pads, and containment buildings, including in those situations where a generator is not able to demonstrate that its contaminated soils can be practicably removed or decontaminated. This State is generally supportive of this requirement. Additionally, the proposal would require closure as a landfill in instances in which LQGs accumulating hazardous waste in containers where clean closure is not achieved. As proposed, LQGs would be required to notify EPA or the State no later than 30 days prior to closing an accumulation area and within 90 days after closure of unit or facility. This State is supportive of this proposed change, but also recommends that EPA consider inclusion of the proposed closure requirements for all generator classifications, not just LQGs. If similar problems exist with either a CESQG or SQG container storage area, then a similar requirement would be considered applicable based on consideration of the potential effect on human health and the environment.

It is also recommended that EPA's final rule clarify that closure procedures are applicable to container accumulation areas, not individual containers, e.g., drums. (0217)
Response: At this time, closure requirements are only applicable to LQGs, and not CESQGs/VSQGs and SQGs.  However, situations will most likely exist where an LQG moved to a lower generator category over the life of the facility prior to closure.  In such situations, EPA and the states will make a case-by-case determination based on the facts of the situation. For example, a facility that was an LQG for 20 years and then dropped down to being an SQG for 6 months before closing would most likely be subject to closure requirements. Conversely, a facility that was an SQG for twenty years and at closure but was also an LQG for six months over that time period may not have to undergo closure. But again, there could be reasons to require the facility to comply with closure requirements. Also, SAAs will not be subject to closure requirements for their SAAs.

Comment: Section VIII.G.3 (Page 57955): Most States support the requirement for a generator to notify when the facility closes (emphasis added). However, the States do not support the proposal to require generators to notify the implementing agency when closing containers. Closing containers as described in the proposed rule is unrealistic from a practical point of view. If notification of closure is required for LQGs, it should only occur after closure of the hazardous waste accumulation unit or site. (0217)

Response: In response to comments, the Agency has modified the rule to account for such situations whereby a generator can place a note in their operating record stating they have opened a closed a temporary 90 day central accumulation area and address closure requirements when the facility closes.
Comment: One State notes, compliance with the proposed language at §262.17(a)(8)(i) for notifying EPA no later than 30 days prior to closing a central accumulation unit is impractical for many of its federal facilities, as well as large campus-style private facilities. Often temporary central accumulation areas are established for short-term maintenance projects, such as firing range cleaning, lead-abatement projects, and construction projects. These temporary units may exist for fewer than 30 days. Since compliance with closure of a central accumulation area is self-implementing and not subject to closure plan development or approval by the regulatory agency, a notice to EPA immediately prior to or at time of closure would be sufficient versus 30 days prior. This State would prefer to see a requirement for notification of the establishment of new central accumulation areas prior to use.

Response: In response to comments, the Agency has modified the rule to account for such situations whereby a generator can place a note in their operating record stating they have opened a closed a temporary 90 day central accumulation area and address closure requirements when the facility closes.
Comment: 13. Closure Regulations for LQGs Accumulating Waste in Containers  -  p. 57953
The proposed requirements for closure of areas where waste is being accumulated are needed to ensure contamination is properly identified and cleaned up. (0223)
Response: The Agency agrees with the above comment.
Comment: The FRRC has concerns about how this would apply to a temporary central accumulation area that gets established during a special project, such as part of a building renovation or building demolition. Such an area may only be active for a couple of weeks or a couple of months. The regulations are drafted such that there is no distinction between this situation and those areas that are used much longer periods of time. See proposed 40 CFR § 262.17(a)(8). If that is the intent, it is very extreme to apply full closure requirements to such areas and to potentially subject such sites to full landfill closure requirements. Moreover, the regulations are not clear in terms of how such an area would be considered active or inactive and how generators would make that determination. The FRRC strongly encourages EPA to evaluate the closure requirements as they apply to areas that only are used for accumulation for short durations. (0224)

Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

Comment: The proposed closure pre-notification is problematic in the situation noted above, but is also a concern in general. See 80 Fed. Reg. 57955. First, it is not always a clear date when "closure" begins or when "closure" is complete. Therefore, how would generators and EPA determine whether the time-limits for notification have been met? Moreover, it is unclear what environmental benefits would result from such notification. Generators have incentive to complete full closures accurately and property conditions are regularly assessed during transactions under CERCLA's All Appropriate Inquiry standard, which would include looking at whether there is or have been conditions at the property where it likely or potential release of hazardous substances into the environment. See 40 CFR § 312.20. (0224)

Response: The Agency has addressed the concerns of this commenter and others in the final rule.  In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

Comment: 7. The US EPA requests comments on its proposal to strengthen closure requirements for LQGs that accumulate containers and requiring LQGs to notify at closure. Hennepin County supports these proposals as we have encountered incomplete cleanup of sites that have closed and timely notification would provide regulators with the option to inspect sites prior to closure, allowing them to intervene sooner in cases where the generator is showing signs of not fulfilling its obligation to clean up the site. With that said, we suspect that the notification requirement will be widely ignored especially by SQGs mostly out of ignorance. (0229)

Response: The Agency appreciates the support of Hennepin County. Regarding its last sentence, SQGs will not be subject to closure requirements unless the state has more stringent requirements, or EPA and the states run across situations where a facility was an LQG for a long period of time, dropped down to an SQG status for a few months and then closed. In such situations, whether the facility is subject to closure requirements will be on a case-by-case basis.

Comment: The proposed rule requiring 30 day advance notification to EPA of the closure of accumulation storage areas presents a significant challenge to the college and university sector. This change, combined with proposed requirements to document the closure status of accumulation areas and update contingency plans with local emergency planning committees represents a significant new reporting requirement. The value of this information is recognized but the methodology for reporting is not clear.

A systematic approach to summarizing relevant information for regulators, emergency responders and site owners is needed. The college and university sector is likely to have more frequent movement of central drum storage areas and may require temporary central accumulation units for project work. The regulations should recognize and allow the use of portable spill containment pallets to create central accumulation units on an ad hoc basis.

Contingency plans could become a central repository for essential information on central accumulation areas but the proliferation of disparate notification and reporting requirements may be inefficient and of limited utility. (0244)

Response: In response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

With respect to modifying their contingency plan, the Agency believes it is important for a LQG to modify its contingency plan when it closes a CAA because emergency responders will need to know what areas they have to be concerned about if the need arises when they have to respond to an emergency. A modification to the contingency plan also would be required if  the LQG reopens the CAA since hazardous wastes will be accumulating in a 90-day area where emergency responders may have to address in case of a fire or other type emergency.
Comment: Proposed Change: Strengthens closure requirements for LQGs Section VIII.G.1-4 pages 57953-57956
EMD Position: Support
Comment/Notes: Support strengthening closure requirements for LQGs as we come across businesses that abandon hazardous waste containers upon closure or going out of business. (0250)
Response: The Agency appreciates the support of this commenter.
Comment: ACA believes that applying the same closure requirements to containers as is already required for tanks, drip pads and containment buildings will be burdensome for generators and confusing. It is excessive to manage areas which do not achieve clean closure as landfills and other post closure regulations that are geared towards TSDFs. The proposed requirement would remove flexibility for facilities as they would be less likely to designate a new or temporary hazardous waste accumulation area. Under the current regulations, a LQG that wishes to closure a hazardous waste drum accumulation area only is required to comply with 265.111 (a), 265.111(b), and 265.114.

ACA believes that the differentiation in the current closure requirements between these storage areas and hazardous waste accumulation tanks, drip pads, and containment builds are sufficient enough for the lower risk associated with its closure. When EPA adopted its initial regulations, it properly distinguished between generators that store small quantities of hazardous waste in containers and generators that store or treat hazardous waste in much larger quantities in tanks, landfills, surface impoundments, incinerators, etc. LQGs that store hazardous waste in containers should not be subjected to onerous aspects of RCRA, especially since EPA's goal in this proposed rule is to simply consolidate and "clarify" existing regulations. This proposal would be a major departure from existing regulations. (0262)
Response: The Agency disagrees with the commenter. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.

Similarly, in response to comments, the Agency has modified the closure regulations to provide flexibility in how a facility addresses either temporary or final closure of a central accumulation area while the facility is still in operation. LQGs will have the option of either placing a note in their operating record identifying the location of a central accumulation area within the facility and address closure when the facility closes, or notify EPA or an authorized state they intend to close the CAA and proceed with complying with the applicable closure performance regulations. Closure of SAAs will not be affected by this rule.

Comment: 262.17(a)(8)(ii)(2) adds significant closure requirements across all types of units for decontamination of accumulation areas including containment, soil, subsoil, structures, and equipment beyond that in existing regulation 265.114. Accumulation areas are generally not much different from associated manufacturing areas in terms of the types and volumes of hazardous materials that then become waste that are used in each. Thus, there should be no further closure requirements required for such areas. If significant environmental releases to the environment had occurred, those would have already been addressed via other regulatory requirements for reporting (e.g. 40 CFR 302); (0263)

Response:  The Agency disagrees with the commenter. The Agency is expanding the scope of closure requirements to include container waste accumulation areas because a significant percentage of LQGs accumulate hazardous waste in containers and numerous damage cases over the years have resulted from these types of waste accumulation areas. The damage cases cited in the docket are not anecdotal, but situations where a generator failed to clean close  -  with most accumulating hazardous in containers. Similarly, the damage cases cited represent only a sample of damage cases that have occurred through the years where generators failed to clean close leaving either the federal government or state to pay for the costs of cleanup.

Regarding the comment about significant environmental releases to the environment having occurred, we also would expect those releases to have already been addressed via other regulatory requirements for reporting. However, this requirement is independent of spills and releases occurring during the life of the facility where a cleanup was required. This requirement is to assure the public that the generator has been a good steward of the property and when they close their facility, they will ensure the public that releases, spills, etc. have not been left unaddressed.
Comment: :: 40 CFR 262.17 (i) requires that EPA be notified 30 days prior to and 90 days after closure of a unit that accumulates hazardous waste. This would add an administrative burden to generators with very little benefit since the location of active 90 day areas are already included with the hazardous waste contingency plan that is submitted to regulators and emergency responders.(0280)
Response: The Agency has modified the closure regulations to provide flexibility in how an LQG may address the closing of a CAA while the facility is still in operation. But the Agency notes that the contingency plan does not address the closure of the facility and ensuring releases to the environment have not occurred, or will not occur.
Section 4.6.1 - Consolidation of closure requirements in 262

The Agency is consolidating the comments of Commenters 0085, 0108, 0134, 0145, 0182, 0232 into one response below.

Comment:29. Regarding generator closure regulations  -  Section VIII.G.1-4., pages 57953-57956: Colorado agrees with the proposal to consolidate the closure regulations for LQGs into the new section 262.17(a)(8). (0085)
Comment: 7. Section VIII. Proposed Revisions to 40 CFR Part 262 -- Standards Applicable to Generators of Hazardous Waste - Generator Closure Regulations
NJDEP supports consolidating and integrating all relevant closure provisions for LQGs at § 262.17(a)(8). (0108)
Comment: J. Closure Regulations for Generators

ETC supports EPA's proposal to consolidate the closure regulations for generators and require closure of central accumulation areas. 80 FR 57953-56. (0134)
*Comment: Within the larger proposal, NDEQ is neutral on the first change to consolidate the closure regulations for LQGs accumulating hazardous waste at §262.17(a)(8). Nebraska incorporates-by-reference both the general performance requirements found at §§265.111 and 265.114 for containers, tanks, drip pads, and containment buildings, and the unit specific requirements found at §265.197 for tanks, §265.445 for drip pads, and §265.1102 for containment buildings. Nebraska has not heard from stakeholders or staff that these regulations can be confusing and difficult to follow, but appreciates EPA's effort to pursue continuous improvement in clarity and readability.(0145)
Comment: VIII.G.4. Request for Comment
DEQ is of the opinion that EPA's proposed consolidation of closure regulations further clarifies the responsibilities of LQGs. (0182)
Comment: 80 FR 57953, column 3 (VIII., G., 1. & 2.)
Generator Closure Regulations
The MPCA supports the proposed LQG closure requirement consolidation and clarification for the reasons discussed by the EPA at 80 Fr 57953-57955. (0232)
Response: The Agency appreciates the support of the above commenters.
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