Originally, the program was to expire on September 30, 2003. But on
June 21, 2006, EPA extended the program and the new expiration date was
changed to April 15, 2009 (71 FR 35550). Since the program has now
expired, EPA is deleting paragraph (j) from Sec.  262.10, as well as
part 262 subpart J and reserving them.
    Effect of the Reorganization: This deletion is not affected by the
reorganization.

B. Waste Determinations (40 CFR 262.11)

1. Introduction
    Under RCRA, generators are the first critical link in ensuring safe
management of hazardous waste. They are the cradle in the cradle-to-
grave RCRA system. The first and most important step in the regulations
is for generators of solid waste (as defined at Sec.  261.2) to
determine whether their waste is also a hazardous waste by using Sec.
262.11. If a generator fails to identify a hazardous waste as
hazardous, it will not start the waste down the hazardous waste
management path and the critical gateway to the RCRA Subtitle C safe
management system will be missed. Such mismanagement of hazardous waste
may result in damage to human health and/or the environment.
    Thus, the success of the hazardous waste regulatory program
depends, to a great extent, on generators making accurate hazardous
waste determinations. However, as described in the proposal, EPA has
observed through various efforts that generators struggle with this
crucial first step with the estimated rates of non-compliance ranging
from 20 to 30 percent.\22\ With an estimated generator universe in the
hundreds of thousands, the potential for the mismanagement of hazardous
waste and the impact on public health and the environment is
significant. Therefore, given the importance of this regulatory
provision, the Agency proposed several changes to the waste
determination regulations at Sec.  262.11 in an effort to clarify them,
and thereby foster

improved compliance by generators. These proposed changes were intended
primarily to codify Agency interpretations that have been developed and
implemented over the last 35 years in Federal Register notices, policy,
letters, and other guidance.
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    \22\ Hazardous Waste Determination Program Evaluation, IEc,
April 2013. http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf; and Summary of Waste Determination Meetings with
VT and NH State Officials on September 27-28, 2010; and ``10 Most
Common Hazardous Waste (RCRA) Violations in Georgia: 40 CFR 262.11
``Hazardous Waste Determination,'' Georgia Department of Natural
Resources https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/guidehwdet.pdf. For more citations, see the
proposed Generator Improvements Rule, page 57936-57937, September
25, 2015.
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    Specifically, the proposed rule included revisions to the Sec.
262.11 regulations that would (1) clarify that hazardous waste
determinations must be accurate; (2) confirm that a generator's waste
must be classified at its point of generation and, for wastes
potentially exhibiting a hazardous characteristic, at any time during
the course of its management when the properties of the wastes may
change in such a way as to change the hazardous waste determination;
(3) revise the language on how to make a determination for listed
hazardous waste in Sec.  262.11 to explain more fully how generators
can make this kind of determination using generator knowledge; (4)
explain more completely in the regulations at Sec.  262.11 how a
generator should evaluate its waste to determine whether the waste may
exhibit one of the hazardous characteristics; (5) move the independent
recordkeeping and retention requirements for hazardous waste
determinations currently found at Sec.  262.40(c) into Sec.  262.11 to
integrate this provision more directly into the hazardous waste
determination regulations; (6) revise the hazardous waste determination
recordkeeping regulations to require that SQGs and LQGs maintain
records of any test results, waste analyses, or other determinations
made in accordance with Sec.  262.11 for at least three years,
including waste determinations where a solid waste (as defined in Sec.
261.2) is found not to be a RCRA hazardous waste (as defined in Sec.
261.3); (7) revise the hazardous waste determination regulations by
copying Sec.  262.40(d) into Sec.  262.11 to address situations where
an enforcement action has been initiated and the period of record
retention (e.g., three years from when the record was generated) must
be extended automatically during the course of any unresolved
enforcement action regarding the regulated activity or as requested by
the Administrator, and (8) require generators identify all applicable
EPA hazardous waste numbers (EPA hazardous waste codes) in subparts C
and D of part 261 if the solid waste is determined to be a hazardous
waste.
    The Agency also requested comment regarding how best to emphasize
the importance of accurate hazardous waste determinations and the
length of time records must be maintained. Finally, EPA also asked for
comment on the utility of developing an electronic decision making tool
for hazardous waste determinations.
2. What is EPA finalizing?
    The Agency is finalizing the following changes to Sec.  262.11:
    (1) Requiring that a solid and hazardous waste determination must
be accurate, and expanding on why this determination is important;
i.e., to ensure the proper management of the waste within the RCRA
framework;
    (2) Requiring that a hazardous waste determination for each solid
waste must be made at the point of waste generation, before any
dilution, mixing, or other alteration of the waste occurs, and at any
time in the course of its management that it has, or may have, changed
its properties as a result of exposure to the environment or other
factors such that its waste classification may have changed;
    (3) Incorporating regulatory language that elaborates on how to
make a hazardous waste determination for listed and characteristic
hazardous waste;
    (4) Referencing the applicable RCRA regulations for identifying
possible exclusions or exemptions for the hazardous waste at in Sec.
262.11(e).
    (5) Moving the independent recordkeeping and retention requirements
for hazardous waste determinations currently found at Sec.  262.40(c)
into Sec.  262.11(f), with clarifications on what records must be kept;
and
    (6) Requiring SQGs and LQGs to identify the applicable RCRA waste
codes for the hazardous waste they have generated, but clarifying that
such identification must occur no later than immediately prior to
shipping hazardous waste off site to a RCRA permitted treatment,
storage and disposal facility in accordance with the requirements of
Sec.  262.32.
    The Agency is not finalizing the proposed requirement that SQGs and
LQGs maintain records of their non-hazardous waste determinations. Nor
is the EPA finalizing a requirement for SQGs and LQGs to maintain
records of their hazardous waste determinations until the generator
closes its site.
    Finally, EPA requested feedback regarding the feasibility and
effectiveness of developing electronic decision-making tools for
hazardous waste determinations and whether such tools would be a
helpful to generators. Based on comments, the Agency is not finalizing
any provision related to electronic decision-making tools for hazardous
waste determinations but will continue to explore feasibility in the
future. The Agency took comment on a number of electronic tools and
reporting options and has organized our discussions of all of these
options in section XIII of this preamble. See this section for a more
in-depth discussion regarding electronic waste determination decision
tools and other electronic options.
    a. Solid and hazardous waste determinations must be accurate. The
Agency is finalizing the proposed requirement for generators to make
accurate hazardous waste determinations. However, we are also modifying
the proposed regulatory text in response to comments to provide a
rationale for this change by stating that the accurate determination is
in order to ensure wastes are properly managed under RCRA. Accurate
hazardous waste determinations are necessary to ensure the proper
management of waste within the RCRA framework; in doing so,
environmental protection will be enhanced and greater generator
accountability fostered.
    EPA believes that waste determinations are of utmost importance and
warrant this emphasis regarding accuracy. As one commenter stated,
``Accurate waste determinations are required to ensure that each waste
stream generated by a company is properly managed. Additionally,
accurate waste determinations protect workers by making the company and
the worker(s) aware of the dangers of the waste(s) being managed.
Further, accurate waste determinations will ultimately lead to an
accurate generator status determination.'' \23\
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    \23\ Comment by individual consumer. Docket number: EPA-HQ-RCRA-
2012-0121-0160
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    Some commenters argued that addition of the term ``accurate'' to
the regulation would be superfluous, as the Agency's intent that
hazardous waste determinations be accurate is self-evident, and that
adding this term may even imply that other aspects of the RCRA program
need not be accurately implemented. The Agency's intent is that all
parts of the RCRA regulatory program be implemented in the manner
required by the regulations. In adding the term ``accurate'' to the
waste determination requirement of Sec.  262.11, the Agency intends to
emphasize the importance of this step in the waste management process.
Inaccurate hazardous waste determinations will lead to violation of
other RCRA regulatory requirements and mismanagement of the waste,
which may result in damage to human health or the environment.

    Another reason for including the language explaining a generator
must make an accurate waste determination to ensure the wastes are
properly managed is to clarify the applicability of Sec.  262.11 in
instances in which generators choose to manage their non-hazardous
wastes as hazardous wastes. Even if the waste may not be hazardous,
``over managing'' the waste is acceptable and meets the requirements in
Sec.  262.11 because the generator has made a determination intended to
ensure, beyond a doubt, proper and protective management of the waste
within the RCRA regulatory program. The practice of over-managing non-
hazardous waste as hazardous waste has been in existence for years and
EPA's final language in Sec.  262.11 continues to allow this practice.
    In addition to concerns about the regulatory status of over-
classified wastes, commenters also expressed concerns about generators
using the best available information and still making an inaccurate
determination because of the errors and omissions of others. Generators
are, and always have been, ultimately responsible for making accurate
hazardous waste determinations. Hiring a third party contractor, waste
broker, or consultant, or reliance on information provided by suppliers
does not transfer this responsibility to those third parties. While the
Agency understands that reliance on third parties may sometimes result
in an inaccurate waste determination, the responsibility remains with
the generator. It would be prudent for the generators to practice due
diligence and establish processes and procedures that ask questions of
their suppliers and waste management companies to understand why their
materials are hazardous or not.
    One commenter mentioned that the term `accurate' also does not
provide any guidance about how intensive or deep a generator's research
must be to meet the intended standard. This commenter goes on to
discuss that a five-minute review of a Safety Data Sheet (SDS) and
product brochure may well be `accurate' but much too superficial to
ensure the generator has considered all potentially hazardous
attributes of the waste. The Agency disagrees with this commenter.
Waste determinations are site specific and each generator must evaluate
the amount of time and effort needed to make an accurate waste
determination. In some cases, a review of an SDS may suffice because
the identification of the constituents and their concentration ranges
may make it clear whether the chemical is or is not a hazardous waste
upon disposal. Conversely, the Agency can see a number of situations
where a generator must conduct analysis and testing to meet this
requirement. Regardless of the effort invested in making a hazardous
waste determination, the Agency's intent is that the results of the
determination be accurate and bring about the proper management of the
waste under the RCRA regulatory framework.
    b. A hazardous waste determination must be made at the point of
generation before any dilution, mixing, or other alteration of the
waste occurs. As described in the proposed rule, the Agency's policy
and position from the beginning of the RCRA program has been that a
waste determination must be made at the point of generation (i.e., the
point at which the material first becomes a solid waste under RCRA;
See, for example, 55 FR 11830, March 29, 1990). This includes both the
time and place the waste was first generated. By requiring that the
hazardous waste determination be made at the point of generation in
Sec.  262.11(a), the final regulation clarifies that the determination
cannot be made downstream in the process, where other materials could
be mixed with the waste or where the waste may have changed its
physical or chemical characteristics. A generator's hazardous waste
determination at the initial point of generation is critical to ensure
proper management of the waste not only by the generator, but also by
transporters and TSDFs who rely on the generator's determination to
allow them to safely manage the waste and provide appropriate treatment
and disposal. This proposed revision to Sec.  262.11 is not a
substantive change to the program; preambles to a number of previous
rules explain that EPA has always maintained that hazardous waste
determinations must be made at the initial point of generation.\24\ The
Agency is finalizing this requirement as proposed.
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    \24\ See 45 FR 33095-96, May 19, 1980 and 55 FR 11830, March 29,
1990.
---------------------------------------------------------------------------

    Many commenters expressed concern with EPA's proposed requirement
that hazardous waste determinations must be made at the point of
generation. For many generators, the Agency believes making a hazardous
waste determination on new wastes should be an infrequent evaluation.
An analysis of 2013 biennial report data identified 46 percent of LQGs
generated between one and five waste streams. Similarly, this same
analysis found that overall LQGs generated a median of 6 hazardous
waste streams and a mean of 13 hazardous waste streams.\25\ Many of
these generators continue to generate the same wastes over long time
periods, and absent changes in the waste, the generator may continue to
rely on an initial determination of the waste's RCRA status
(particularly for listed hazardous wastes). Of course, should a
generator in this scenario change either its production feedstocks or
production process, or know of any other factors that may result in
changes to the waste's origin or properties, the generator may have a
new waste requiring a new waste determination.
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    \25\ See ``Regulatory Impact Assessment of the Potential Costs,
Benefits, and Other Impacts of the Final Hazardous Waste Generator
Improvements Rule.'' A copy of the analysis is available in the
docket for this action.
---------------------------------------------------------------------------

    Based on EPA's 2013 Hazardous Waste Determination Program
Evaluation \26\ and stakeholder discussions, the Agency has determined
that most generators make a hazardous waste determination by using
knowledge of their processes, including feedstocks and possible side
reactions, and other materials used at the facility to evaluate whether
waste is hazardous or not. In order to properly classify and manage
waste, generators must make a hazardous waste determination when the
waste is first generated. Most generators should have sufficient
knowledge of their waste to determine whether the waste is hazardous
and why it is hazardous i.e., whether the waste meets one of the
listing descriptions in subpart D of part 261 \27\ or whether the waste
may exhibit one or more hazardous waste characteristics described in
subpart C of part 261, and to manage the hazardous waste according to
its hazards, under RCRA. When generator knowledge is inconclusive or
uncertain, testing may be appropriate.
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    \26\ Hazardous Waste Determination Program Evaluation, IEc,
April 2013. http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.
    \27\ Note: If the waste is listed, a generator may file a
delisting petition under 40 CFR 260.20 and 260.22 to EPA or the
authorized state to demonstrate that the waste from this particular
site or operation is not a hazardous waste.
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    We have and continue to recognize that situations will occur where
a generator is not able to make an accurate waste determination based
on knowledge alone, and the generator will need to send a
representative sample of the waste to be tested. However, as the EPA
has stated in the past, the generator must manage the waste as
hazardous waste until the results of the test are received, and
continue to manage it as

hazardous waste if the hazardous waste determination is confirmed by
the test.\28\
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    \28\ See letter from Lowrance to Axtell, April 21, 1989, RCRA
Online 11424.
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    The Agency is also aware that many generators, such as academic and
industrial laboratories, generate new or different waste streams
frequently, and that making hazardous waste determinations for multiple
waste streams is more difficult than when a generator has a small
number of waste streams that seldom vary. However, EPA stresses that in
the laboratory setting, it may be even more important to make accurate
hazardous waste determinations at the point of generation, so that
emergency scenarios involving mixing of incompatible wastes or other
dangerous situations can be avoided and lab worker safety maintained.
Whether a generator generates one new waste daily or annually, the
process for making a hazardous waste determination is still the same.
Through knowledge of the process or materials, and/or through testing,
all generators must make a hazardous waste determination at the point
of generation. The Agency would expect generators producing new wastes
frequently to establish efficient processes to make those waste
determinations, particularly to the extent they can use knowledge of
the materials or feedstocks in the waste determination process.
    Both the retail and laboratory sectors raised concerns about the
undue waste determination burden from the large numbers of potentially
hazardous wastes that might be generated at their sites. EPA realizes
that both of these sectors operate differently from the traditional
industrial hazardous waste generators. In fact, to address laboratory
sector concerns, EPA developed an optional set of alternative standards
in 40 CFR part 262 subpart K, entitled, ``Alternative Requirements for
Hazardous Waste Determination and Accumulation of Unwanted Material for
Laboratories Owned by Eligible Academic Entities.'' This rule was
designed to account for the manner in which academic laboratories
operate. In addition, a few years ago, the EPA began a review of how
RCRA hazardous waste regulations apply to the retail sector in order to
better understand retailers' challenges in complying with RCRA
regulation. These efforts are on-going.
    A few commenters disagreed with the proposal to add language
clarifying that waste determinations must be made at the ``point of
generation,'' arguing that the Agency has issued waste determinations
in the past contradicting this policy. The Agency disagrees with this
commenter. EPA has been consistent in its position that a waste
determination must be made at the point of generation, unless for some
unforeseen and rare circumstance, the determination must be made in a
subsequent location. Without clarifying in the regulation that a waste
determination must be made at the point of generation, the RCRA
``cradle to grave'' system could be easily circumvented, with
generators and handlers able to delay the waste determination process
until a convenient time and place, including by a subsequent handler
who knows little about the waste.
    However, in response to comments, the Agency is stating that
existing guidance and memoranda addressing specific situations relating
to the point of generation are not superseded by this final rule.
Specific examples of such situations are discussed in the Agency's
Response to Comment document found in the docket to this rule.
    As part of finalizing Sec.  262.11(a), the Agency is also
finalizing the language that explicitly clarifies the waste
determination policies identified and discussed in 1980 (45 FR 33095-
96, May 19, 1980); i.e., that the point of generation is identified as
the point at which the material is first identified as a solid waste
under RCRA, before any dilution, mixing, or other alteration of the
waste occurs. Further, RCRA solid and hazardous waste must be
reevaluated at any time in the course of its management that it has, or
may have, changed its properties as a result of exposure to the
environment or other factors that may change the properties of the
waste, such that the RCRA classification may have changed. As discussed
in the proposal rule at 80 FR 57938, and in referring to characteristic
hazardous wastes, the Agency stated:

    This implies that a generator's waste characterization
obligations may continue beyond the determination made at the
initial point of generation. In the case of a non-hazardous waste
that may, at some point in the course of its management, exhibit a
hazardous waste characteristic, there is an ongoing responsibility
to monitor and reassess its regulatory status if changes occur that
may cause the waste to become hazardous. Thus, the generator must
monitor the waste for potential changes if there is reason to
believe that the waste may physically or chemically change during
management in a way that might cause the waste, or a portion of the
waste, to become hazardous.

    Many commenters were concerned that in practice, this provision
would require them to constantly re-evaluate their wastes. However, the
Agency stands by and is not changing this long-standing position.
Generators have a responsibility to understand the properties of their
waste, not only to make an accurate determination, but also to manage
the waste properly. In many instances, the properties of the waste most
likely will not change. But in other situations, exposure to the
elements, or the very nature of the chemicals in the waste may cause
its properties to change. Generators have a responsibility as part of
the waste determination and waste management processes to be aware of
those situations.\29\ In such situations, generators should also notify
any subsequent waste handlers to monitor for changes in waste
properties. The Agency emphasizes that a generator needs to understand
what type of waste it has generated, why it is or is not hazardous at
the point of generation, and proceed accordingly in managing and
monitoring its waste. If a generator is aware that its waste tends to
have the potential to change over time, the generator may wish to
establish processes to determine whether the nature of its waste has
changed and make a new hazardous waste determination.
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    \29\ See for example, discussion at 80 FR 57939 and 55 FR 39410,
September 27, 1990.
---------------------------------------------------------------------------

    c. Use of generator knowledge and testing in making a hazardous
waste determination. At Sec.  262.11(c) and at Sec.  262.11(d)(2), the
Agency, in its proposed rule, elaborated on the existing regulatory
text associated with the use of generator knowledge to determine
whether wastes are either listed hazardous wastes and/or
characteristically hazardous waste, respectively. As part of this
proposed change, the Agency provided examples of the types of knowledge
and information deemed acceptable that generators may use. The types of
information identified in Sec.  262.11(c) and Sec.  262.11(d)(2) that
generators could use as acceptable knowledge in determining if their
wastes are listed wastes, or characteristically hazardous, were not all
inclusive, or limited to those examples. However, this may not have
been clear in the proposal. The Agency, therefore, is finalizing Sec.
262.11(c) and now Sec.  262.11(d)(1) with slight changes to clarify
that the examples identified in the regulatory text are not limited to
those kinds of information.\30\
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    \30\ Note: As stated below, the Agency reversed Sec.
262.11(d)(1) and (d)(2) in the final rule, with paragraph (d)(1)
emphasizing the types of knowledge a generator could use in making a
hazardous waste determination and paragraph (d)(2) addressing test
methods.

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    Similarly, in the proposal at Sec.  262.11(d)(1), the Agency
elaborated on the test methods generators may use to determine whether
their wastes are hazardous. Included were test methods set forth in
subpart C of part 261 or an equivalent method approved by the
Administrator under Sec.  260.21. The Agency, in its proposal, also
stated under Sec.  262.11(d)(2) that where a test method is specified
in the regulation, the results of the regulatory test, when properly
performed, are ``definitive'' for determining the regulatory status of
the waste.
    The Agency received numerous comments on this latter provision,
with commenters expressing concerns that by stating a regulatory test,
when properly performed, is ``definitive'' in determining a waste's
regulatory status, EPA was also implying that use of generator
knowledge was not definitive and less trustworthy as a means to make a
hazardous waste determination. Several commenters went so far as to
suggest the Agency, for all practical purposes, was eliminating the
ability to use process knowledge for waste determinations and was
requiring actual testing.
    These commenters misinterpreted the proposed change. The Agency
reaffirms that generators may use knowledge of their processes and of
the materials used in the process, among other types of information (as
described in the proposal preamble), to make a hazardous waste
determination. In fact, generators can only use knowledge of their
process and knowledge of the materials used in the production process
to determine whether their waste meets any of the F-, K-, P- and U-
waste listings.
    Further, in determining whether wastes may exhibit a hazardous
characteristic, EPA expects that most generators will use generator
knowledge to make waste determinations, and this is appropriate
provided that such knowledge results in an accurate determination.
Where generator knowledge is inconclusive or uncertain, testing using
the test methods described in part 261 subpart C, or equivalent methods
approved by the Agency in Sec.  260.21, will resolve any uncertainty.
The results of such testing, when properly performed, are definitive
because these tests are part of the regulatory definition for those
parts of the hazardous characteristics that include them. The Agency is
reversing the order of the proposed Sec.  262.11(d)(1) and (d)(2) in
the final regulations to clarify the roles of knowledge and testing in
making hazardous waste determinations.
    One commenter mentioned that while EPA has adopted the terminology
``acceptable knowledge'' in the rule from its waste analysis guidance,
we have not identified what is unacceptable knowledge and we may be
adding confusion to the process. While the Agency believes the term
``acceptable knowledge'' is clear, and has used it in discussing this
topic in older Federal Register notices, and also included examples of
those types of information that may assist a generator in making an
accurate hazardous waste determination in the proposal preamble, the
Agency also stated above that the examples provided do not comprise an
inclusive list, but rather are examples. As to what the Agency would
view as ``unacceptable,'' guessing is not acceptable. The Agency also
views using resources that do not contain information about the process
that produced the waste or the chemicals in the waste as unacceptable.
It is also unacceptable for generators to simply assume their waste is
non-hazardous until told otherwise by the relevant regulatory agency.
In using the phrase ``acceptable knowledge'', the Agency intends that
knowledge-based determinations be based on relevant and reliable (i.e.,
verifiable) information from any source that indicates, to a greater or
lesser degree, that the waste is either hazardous or non-hazardous
under part 261 subpart C and D regulations, and that such information
is organized or presented in a logical way that illustrates how it
supports the generator's conclusions. Such determinations are
inherently done on a case-by-case basis. In some cases, this may be
clear and straightforward and in others more complex or uncertain,
depending on the waste and the availability of reliable and relevant
information. Similarly, the Agency cannot a priori determine how much
information is ``enough'', as this too is case-specific. As discussed
previously, the Agency's intent is that hazardous waste determinations,
regardless of their basis, be accurate and result in appropriate
management of the waste under RCRA.\31\
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    \31\ In using knowledge of a waste to make a hazardous waste
determination, the Agency would also offer the advice that
generators review and account for information they may identify that
may tend to refute their conclusions. A conclusion that considers
and honestly weighs adverse information is much more likely to be
accepted by the Agency than is a conclusion based on data carefully
selected to support the conclusion and which ignores contrary
information that may be more convincing.
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    One commenter also suggested that the word ``applicable'' be
inserted before ``methods'' in proposed Sec.  262.11(d)(1) to read:
``The person must test the waste according to the applicable methods
set forth in Subpart C of Sec.  Part 261 or according to an equivalent
method approved by the administrator under Sec.  260.21 and in
accordance with the following . . . (emphasis added)''. The commenter
argued that by adding the word ``applicable,'' this rule will make
clear, for example, that if a waste is being evaluated for the toxicity
characteristic, a Method 1311 test should be used, as opposed to one of
the test methods that must be used to evaluate whether a waste is
ignitable. The Agency agrees with this clarification and has modified
the regulatory text accordingly.
    d. Possible exclusions and restrictions for the waste at Sec.
262.11(e). The Agency is moving the language that was proposed at Sec.
262.11(g) to Sec.  262.11(e) in the final rule. This language states
that if the waste is determined to be hazardous, the generator must
refer to the applicable RCRA regulations of this chapter to determine
whether other possible exclusions or restrictions apply to the
management of the specific waste. The Agency believes, in retrospect,
that this paragraph belongs more appropriately immediately after the
generator has determined whether it has generated either a listed and/
or characteristically hazardous waste. As a result of this change,
subsequent paragraphs in this section shift in numbering as well.
    e. Recordkeeping Requirements at Sec.  262.11(f). The Agency is
finalizing, with clarifications, a number of revisions to the waste
determination recordkeeping requirements proposed at Sec.  262.11(e),
but being finalized at Sec.  262.11(f). First, we are finalizing the
move of the waste determination recordkeeping requirements previously
found in Sec.  262.40(c), into Sec.  262.11, in order to highlight the
recordkeeping requirement for hazardous waste determinations. The
Agency is also providing a reference in Sec.  262.40(c) to the new
regulatory location of the hazardous waste determination recordkeeping
requirement in Sec.  262.11(f) instead of deleting and reserving Sec.
262.40(c). EPA is finalizing this change as a conforming change with
the reorganization to prevent generators that are looking for
recordkeeping requirements in Sec.  262.40 to miss the other
recordkeeping requirement now located in Sec.  262.11.
    Second, we are finalizing the proposed expanded language to better
articulate the types of waste determination information that must be
maintained as records of hazardous waste determinations made using

generator knowledge and/or testing. This language includes a list of
specific types of records that might be used when making a waste
determination by either method. To further clarify, the Agency is
incorporating into the final rule language the term ``other
determinations,'' which was previously in the text in Sec.  262.40(c).
This term captures the concept that records must be kept for hazardous
waste determinations made by any method.
    While the Agency is aware that some states interpret the words
``other determinations'' in the existing Sec.  262.40(c) recordkeeping
requirement to include non-hazardous waste determinations, as discussed
in the proposed rule, EPA has not held, and continues to not hold, the
same interpretation. By adding this language back into the final
hazardous waste determination recordkeeping regulatory section rather
than deleting it, as proposed, it is possible that those states will
maintain their more stringent interpretation.
    As discussed in more detail later on, EPA is not finalizing the
requirement that generators maintain records of their non-hazardous
waste determinations. However, the Agency will continue to recommend
that generators document their non-hazardous waste determinations as a
best management practice, particularly in situations where wastes
contain known hazardous chemical attributes that could be mistaken for
a hazardous waste.
    Third, the Agency is finalizing the time period as proposed: Waste
determination records must be maintained for at least three years. EPA
asked for comment on extending the time period to the life of the
facility and commenters were practically unanimous in opposing the
extension, responding with various reasons why extending this time
period is not practical, including the existence of a statute of
limitations after which no enforcement actions can be brought against a
generator, and the fact that once a production process changes and a
particular waste is no longer generated, those records are not needed
for the life of the facility.
    EPA proposed to change when the three-year clock would start for
this recordkeeping requirement to the date last generated. However, we
are reverting to the original Sec.  262.40(c) language that states that
three years is measured from the date that the waste was last sent to
on-site or off-site treatment, storage, or disposal. The few comments
on this proposed change referred to previously existing regulatory
language as if the commenters did not realize we had proposed a change.
The Agency has reconsidered this issue and concludes that generators
will have an easier time maintaining records of when their waste was
sent for disposal rather than generated. Moreover, maintaining the
status quo in the original regulations eliminates the need for
generators to change operating procedures.
    Fourth, the Agency is deleting the sentence regarding the co-
mingling of wastes proposed at Sec.  262.11(e). With the Agency
addressing the mixing of solid with hazardous wastes by generators at
Sec.  262.13(f), this statement in Sec.  262.11 is not needed.
    Fifth, a few commenters suggested that types of information not be
limited to those cited in the proposed rule at Sec.  262.11(e). The
Agency believes that the language in Sec.  262.11(e) is very broad
intentionally to capture any type of information used to support a
hazardous waste determination. Thus, we believe that the examples
provided are not all-inclusive and this is already implicit in the
regulatory text and we have not made a change.
    Finally, the Agency is reaffirming in preamble that inspectors have
the existing authority to require a generator to perform a waste
determination during an inspection to support their finding that the
waste of concern is not a hazardous waste if no documentation exists.
    f. SQGs and LQGs must identify the RCRA waste codes associated with
the hazardous waste. The Agency is finalizing at Sec.  262.11(g), the
requirement proposed at Sec.  262.11(f) that all applicable EPA
hazardous waste numbers (EPA hazardous waste codes) be identified, but
with two clarifications: (1) This requirement only applies to SQGs and
LQGs; and (2) the codes do not need to be marked on the container until
the hazardous waste is being prepared for shipment off site (i.e. pre-
transport requirements). However, SQGs and LQGs may have waste
management practices in place and choose to identify the RCRA waste
codes sooner than prior to shipment.
    EPA is limiting this requirement in the final rule to SQGs and LQGs
because VSQGs have no requirement to label or mark their hazardous
waste. Without this labeling or marking requirement, the Agency
believes it is unnecessary for the VSQG to identify all applicable
hazardous waste codes.
    Currently, there is no direct or explicit regulatory linkage
between the hazardous waste identification requirements of Sec.  262.11
and hazardous waste manifesting requirements of subpart B of part 262
where RCRA waste codes must be identified. From stakeholder
discussions, the EPA understands that some states interpret the
hazardous waste determination process to include identifying the waste
codes. We view this requirement to simply provide the connection
between what wastes are in the container and what is on the hazardous
waste manifest document. The Agency believes this linkage is important
to program integrity and received support from commenters.
    These commenters mentioned that the proposed identification of RCRA
waste codes on containers at the time of the pre-transport requirements
at Sec.  262.32 provides another level of hazard communication for
regulatory inspectors and emergency responders. They also suggested
that this requirement decreases overall burden for generators,
transporters and TSDFs because there will be fewer instances when a
generator has failed to identify its hazardous waste, and therefore
fewer cases where a designated facility needs to identify the hazardous
waste or send the wastes back to the generator for proper
identification. Similarly, this additional marking information also
provides for quicker and more confident acceptance screening at the
receiving facility.
    Commenters opposing this requirement raised concerns about the
increase in burden and potential conflicts with DOT requirements, such
as with 49 CFR 172.401. EPA disagrees that this is an increase in
burden. Generators have always had to identify hazardous waste codes
for the manifest and many states already require waste codes on
containers. Without EPA hazardous waste codes, TSDFs may not be able to
treat the waste to meet LDR requirements. In terms of potential DOT
conflicts, EPA's pre-shipment marking requirements in Sec.  262.32
(where we are finalizing the marking of hazardous waste codes on
containers) are designed to be in compliance with 49 CFR 172.304 and
these regulations reference that the marking must be in compliance with
the DOT regulations.
    Other commenters raised the concern that adding waste codes to
containers managed on site does not improve a generator's ability to
properly manage that waste. EPA agrees with these comments that
generators treating, storing, or disposing their hazardous waste on
site do not need to identify the hazardous waste codes because they
should have sufficient information already about their waste to ensure
they meet the proper LDR requirements.
    Finally, as discussed in more detail in the marking and labeling
section IX.E, EPA is finalizing the requirement in

Sec.  262.32 to add the waste codes to containers with the
clarification that in lieu of marking their containers with EPA waste
codes, generators may use a nationally recognized electronic systems
such as bar coding (common industry practice) that includes the EPA
waste codes. Also, EPA reaffirms that it is not changing the manifest
waste code procedures. See the marking and labeling section IX.E for
additional discussion.
    g. Non-hazardous waste determination documentation. The Agency is
not finalizing the proposed recordkeeping requirement that generators
maintain documentation of their non-hazardous waste determinations. The
objective of this proposed change was to foster a change in generator
behavior related to their waste determination processes and procedures.
By requiring such documentation, generators would need to further
consider why the solid waste was not a hazardous waste and provide a
rationale in writing.
    Numerous organizations voiced disapproval of the Agency's proposal
to require SQGs and LQGs to document their non-hazardous waste
determinations. Reasons included, but were not limited to, the
following themes:
    (1) The Agency has no legal authority to require such documentation
because the Subtitle C regulations do not regulate non-hazardous
wastes;
    (2) There is no compelling reason to require such documentation
because generators have a very strong incentive to ensure they have
accurately classified their wastes, given that failure to do so can
result in significant penalties for the illegal management of hazardous
waste;
    (3) The Agency failed to account for generators that generate
numerous waste streams every day, such as the retail sector and
academic and industrial laboratories; and
    (4) The rule would create so much regulatory uncertainty that the
only way to protect themselves against non-compliance would be to
document every waste stream generated.
    Counterbalancing these arguments were comments from other
organizations supportive of the non-hazardous waste determination
recordkeeping requirement with the following themes:
    (1) Accurate waste determinations are difficult for regulators to
verify if records are not kept, particularly for unknown waste that
reasonably may display the attributes of a hazardous waste but for
which there is no written evaluation showing it as non-hazardous;
    (2) Unknown wastes must be assumed to be hazardous and managed
accordingly unless and until evaluated to be otherwise;
    (3) Recordkeeping costs are overstated. Businesses spend time and
effort identifying and purchasing certain materials based on their
characteristics so they should already have information about the
nature of these materials;
    (4) Lack of documentation of waste determinations leads to
confusion when knowledge is lost during staff turnover and must be re-
created by the replacement staff; and
    (5) Most generators already keep this information as part of best
practices.
    The Agency concludes that many of these arguments, both in favor of
and against the proposal, have some measure of validity. However, the
Agency strongly recommends that as a best management practice,
generators document their non-hazardous waste determinations,
particularly in situations where the waste may display the attributes
of a hazardous waste and where staff turnover may cause a worker to
question the contents of a container. Most importantly, when situations
warrant, inspectors have the authority to ask that a hazardous waste
determination be performed by the generator in the absence of any
documentation and the attributes of the waste suggest a potential
problem.
    Several commenters questioned the Agency's authority to require
such documentation of non-hazardous waste determinations because the
Subtitle C regulations do not regulate non-hazardous wastes. The
commenters are incorrect. The Agency has the authority under sections
3007 and 2002 of RCRA to require such records be kept, but instead has
chosen not to finalize our use of such authority in this case and
rather follow an alternative approach.
    Specifically, RCRA section 3007 allows us to gather information
about any material when we have reason to believe that it may be a
solid waste and possibly a hazardous waste within the meaning of RCRA
section 1004(5). A generator will not know definitively whether a waste
that has potential to be hazardous is hazardous or non-hazardous unless
it identifies the waste and documents that identification, even if the
waste turns out to be non-hazardous. Moreover, RCRA section 2002 also
gives EPA authority to issue regulations necessary to carry out the
purposes of RCRA. The intent of the proposed requirement to document
non-hazardous waste determinations is to provide basic information to
EPA about the potentially hazardous nature of the waste that is
generated (even if it is ultimately determined to be non-hazardous) in
order to ensure its proper management, enable regulatory agencies to
monitor compliance adequately and to ensure appropriate environmental
protection.
    Several commenters also questioned the need for such documentation
because generators have a very strong incentive to ensure they have
accurately classified their wastes, given that failure to do so can
result in significant penalties for the illegal management of hazardous
waste. The Agency does not disagree with this argument, but in reality,
not all generators are motivated to comply, given the high rate of non-
compliance with making accurate hazardous waste determinations.
    Other commenters, particularly in the retail and academic and
industrial laboratory sectors, stated that the Agency failed to account
for organizations with numerous waste streams generated every day when
proposing documentation of non-hazardous waste determinations. The
Agency was aware of and did identify several sectors (including these)
in the proposal where this requirement had the potential to be more
challenging, given the high number of waste streams generated. Also,
the Agency sought comment on how best to address this potential burden.
However, the Agency is not finalizing this provision.
    A few commenters also stated that most generators already keep this
information because their state requires it or because they realize the
importance of systematically evaluating the waste streams they generate
to ensure they are managing it properly. As stated previously, the
Agency supports this non-hazardous waste determination recordkeeping
practice by industry and recommends it as a best management practice.
    The Agency did receive a number of comments supporting the proposal
to require SQGs and LQGs to document their non-hazardous waste
determinations. This support bolsters the Agency's conclusion that more
work is needed to ensure generators make accurate hazardous waste
determinations. At this time, in lieu of requiring such documentation,
the Agency is considering initiating a dialogue with industry and
states to identify the root causes of this problem and identify
potential solutions. Such solutions may include establishing best
management processes and practices, along with the possible development
of generic decision tools or other technical assistance information
that can assist generators with the process of

evaluating whether the solid waste they have generated is a hazardous
waste.

C. Determining Generator Category (40 CFR 262.13)

    A generator must correctly count the quantity of hazardous waste
that it generates in order to determine its generator category. During
the development of the proposed rule, EPA determined that the extent of
the counting requirements in the generator regulations at the time
consisted of lists in Sec.  261.5(c)-(d) and (h)-(j) of what materials
must and must not be included when counting waste. These regulations
did not address other counting considerations. EPA therefore proposed a
new Sec.  262.13 to describe how a generator determines its generator
category, containing the previously existing language in Sec.
261.5(c)-(d) as well as some specific steps to calculate an amount that
includes the correct amounts of hazardous waste.
    Elsewhere in the proposed rule, EPA proposed regulatory language
for each of the categories of generators describing how the rules
regarding mixing from Sec.  261.5(h)-(j) would impact their generator
categories and how to count mixtures of hazardous waste and solid
waste. EPA is consolidating the discussion of counting hazardous waste
from all these areas of the proposed rule into Sec.  262.13 for the
final rule in order to make these requirements easily understandable by
the regulated community and thus improve compliance and consistency.
1. Counting Hazardous Waste
    a. Introduction. The purpose of proposed Sec.  262.13 was to lay
out the framework for making a generator category determination in
paragraph (a) and to stress that the generator's category can change
from month to month. The proposed regulation set forth procedures to
determine whether a generator is a VSQG, an SQG, or an LQG for a
particular month, as defined in Sec.  260.10. As EPA discussed in the
proposed rule, the regulations in Sec.  262.13 do not constitute a new
requirement for generators, but in the regulations up to this point,
the counting requirements have not been presented in a clear and
succinct manner.
    b. What is EPA finalizing? EPA is finalizing a new Sec.  262.13 to
address how to make a generator category determination. It includes the
language discussed in this section on counting as well as the mixing
requirements discussed later in this chapter of the preamble. The
addition of the definitions of generator categories to Sec.  260.10 and
this paragraph on how to make a generator category determination
provide specific instructions on this matter for the regulated
community and thereby improve compliance with the generator
regulations.
    The introductory language of Sec.  262.13 states that a generator
must determine its generator category and that the category is based on
the amount of hazardous waste that is generated in a calendar month.
This requirement for a generator category to be based on a monthly
generation amount is derived from the RCRA statute and is critical to
the framework of the generator regulations.\32\ The regulations also
state that a generator's category can change from month to month.
Although many generators change categories several times a year,
depending on various factors such as inputs, demand, processing volume,
and production, EPA knows many generators choose to operate as LQGs all
the time to simplify their regulatory compliance. EPA encourages this
practice, but notes in the regulations that actual generator category
can change month to month.
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    \32\ RCRA 3001(d).
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    In addition, EPA notes that a VSQG or an SQG that generates more
hazardous waste in a particular calendar month than allowed in its
generator category must make a determination that it now meets the
higher generator category (if it is not covered by the episodic
generation provisions discussed in section X of this preamble).
    Paragraph (a) of Sec.  262.13 presents basic procedures for
counting hazardous waste generated in the calendar month, subtracting
or excluding anything that is exempt and using the difference to
determine the generator category. Paragraph (b) of Sec.  262.13
specifically addresses the situation in which a generator generates any
combination of non-acute hazardous waste, acute hazardous waste, and
the residues from the cleanup of a spill of acute hazardous waste. This
paragraph presents a series of steps for a generator to follow when
determining its generator category to ensure it selects the appropriate
category for the total amount and types of hazardous waste generated.
    Sections 262.13(c) and (d) are existing provisions that EPA is
moving from Sec.  261.5(c) and (d) of the existing regulations with a
few small wording changes to reinforce that category determinations are
made monthly and do not otherwise represent a change in the generator
regulations.
    Section 262.13(e) completes the main process of counting by stating
that based on the generator category that is determined under the steps
laid out in the section, the generator should determine which of the
sets of generator provisions apply to it.
    c. What changed since proposal? EPA made several changes to Sec.
262.13(a)-(e) in response to the comments received on the proposed
rule. First, several commenters pointed out that this section tailors
its procedures for generators that generator acute and non-acute
hazardous waste in the same month, but does not directly address
generators that generator only acute hazardous waste or non-acute
hazardous waste. EPA agrees with this comment and, therefore, converted
the proposed paragraph (a) to introductory language for the section and
made a new Sec.  262.13(a) that addresses those generators that
generate only acute or non-acute hazardous waste. This section includes
a simplified version of the same procedures in paragraph (b) for those
without both types of hazardous waste.
    Commenters also noted that although EPA included a Table 1 to Sec.
262.13 in the regulations, the table was not referenced in the
regulations. EPA therefore added references to Table 1 in the
regulatory text in paragraphs (a) and (b). Also, in Table 1 in this
section, we are deleting the first column of numbers that denoted which
generation scenario was being represented by each row. This column was
potentially useful in the preamble discussion, but served no purpose in
the regulations and has been removed.
    In addition, several commenters stated that although a generator's
category is based on the amount of hazardous waste it generates in a
calendar month, every generator need not make an exact category
determination every month. The commenters argued that many generators
have a very accurate sense of what category they are month-to-month
because their processes generate consistent amounts of hazardous waste
over time. Only those generators with generation amounts near the limit
would have to count regularly to make the category determination. These
commenters stated that many generators with categories that fluctuate
from month-to-month choose to operate as LQGs full time and would,
therefore, not need to count every month to determine generator
category.
    EPA agrees with the commenters and therefore has made revisions to
the introductory language for the section to state that a generator is
required to determine its generator category. The language continues to
stress that a category is based on monthly generation

and may change from month to month, but generators are not required to
follow the included steps every month. EPA notes, however, that an LQG
must keep track of its amounts of hazardous waste for the purpose of
completing the Biennial Report, when applicable.
    Finally, EPA added the language in Sec.  262.13(e) upon determining
that although the purpose of the section is to lead the generator
through counting its hazardous waste for the purpose of determining the
correct generator category, the proposed regulations did not include
the final step in the process.
    Effect of the Reorganization: This section is partially affected by
the reorganization. Some of the language in Sec.  262.13 on what
materials to count when determining generator category moved from
previous Sec.  261.5, but much of this regulation is new text. Section
VI of this preamble discusses the reorganization.
2. Mixtures of Non-Hazardous Waste and Hazardous Waste
    a. Introduction. In an effort to explain how mixtures of non-
hazardous waste (solid waste) and hazardous waste affect generator
category determinations, the Agency proposed a series of modifications
in Sec. Sec.  262.14, 262.16 and 262.17 for VSQGs, SQGs and LQGs,
respectively. The proposed rule also discussed how SQGs and LQGs are
subject to the mixture rules in Sec.  261.3. As explained in the
preamble to the proposed rule on page 57928, this clarification was
also designed to clarify the language that was found at Sec. Sec.
261.5(h) and (i) which addressed the mixing of hazardous waste and non-
hazardous waste by a VSQG and the implications to its generator
category if the mixture is determined to be a hazardous waste. The
language specifically addressed how the regulations apply when VSQG
hazardous waste is mixed with non-hazardous solid waste and the
resulting combination exceeds the VSQG quantity limits.
    b. What is EPA finalizing? The Agency is finalizing the regulations
applicable to generators mixing hazardous waste with solid waste as
follows:
    1. Moving the proposed relevant provisions of Sec. Sec.  262.14(b),
262.16(d) and 262.17(f) applicable to mixtures of hazardous waste and
solid waste to Sec.  262.13(f). The act of mixing a solid waste and a
hazardous waste is not the same as a generator accumulating hazardous
waste, nor is the act of mixing in any way related to the conditions
for exemption from permitting. The purpose of moving the requirements
for mixtures to Sec.  262.13 is to make generators aware of the
regulations applicable to mixtures of hazardous waste and solid waste,
and to accurately explain how the mixing of a hazardous waste with a
solid waste may affect a generator's category determination for the
calendar month.
    2. Clarifying that a VSQG mixing hazardous waste with solid waste
can remain subject to Sec.  262.14, even though the mixture may exceed
the VSQG quantity limits (either 100 kg per month generated or 1,000 kg
accumulated on site at any one time) unless the mixture exhibits one or
more of the characteristics of a hazardous waste. If the resultant
mixture exhibits a hazardous waste characteristic, the VSQG must add
the quantity from the resulting mixture with any other regulated
hazardous waste generated in the calendar month and determine whether
the total quantity generated exceeds the generator calendar month
quantity identified in the definition of generator categories found in
40 CFR 260.10.
    3. For both SQGs and LQGs:
    a. Reemphasizing that both the hazardous waste portion of the
resulting mixture and other amounts of hazardous waste generated in a
calendar month must be counted towards a generator's category
determination.
    b. Making SQGs and LQGs aware of the Sec.  268.3(a) prohibition of
impermissible dilution of a hazardous waste with a solid waste to
decharacterize the hazardous waste. The regulation at 40 CFR 268.3(a)
states, ``. . . no generator, transporter, handler, or owner or
operator of a treatment, storage, or disposal facility shall in any way
dilute a restricted waste or the residual from treatment of a
restricted waste as a substitute for adequate treatment to achieve
compliance (emphasis added) with Subpart D of this part . . .'' In
particular, if a solid waste is mixed with a characteristic hazardous
waste, the solid waste must provide a useful and effective contribution
to de-characterizing the hazardous waste (i.e. possess a unique
property to remove the hazardous characteristic from the hazardous
waste instead of merely diluting it).
    c. Stating that SQGs and LQGs are subject to the regulations
applicable to mixtures found in Sec.  261.3(a)(2)(iv), (b)(2) and (3),
and (g)(2)(i).
    d. Stating that SQGs or LQGs that mix a characteristic hazardous
waste with a solid waste to remove any hazardous characteristics are
subject to the treatment standards found at Sec.  268.40, as well as
the ``impermissible dilution'' requirements in Sec.  268.3.\33\
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    \33\ Also see EPA document, Land Disposal Restrictions: Summary
of Requirements, U.S. EPA Office of Solid Waste and Emergency
Response and Office of Enforcement and Compliance Assurance, EPA-
530-R-01-007, Revised August 2001.
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    4. For all generators, reminding them they must make a hazardous
waste determination at Sec.  262.11 when mixing a hazardous waste with
a solid waste.
    c. What changed since proposal? As discussed previously, the Agency
made a significant number of clarifying changes in the final rule for
this provision based on review and evaluation of comments. These
include the following: Moving the relevant proposed provisions of
Sec. Sec.  262.14, 262.16 and 262.17 applicable to mixtures of
hazardous waste and solid waste to Sec.  262.13 (f); stating that SQGs
and LQGs are subject to the mixture rule found in Sec. Sec.
261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); stating that SQGs and
LQGs must comply with Sec.  268.3(a), which prohibit's impermissible
dilution to avoid regulation; for all generators, stating that both the
hazardous waste portion generated from mixing and the hazardous waste
generated in a calendar month must be counted for establishing the
generator category for that month; and stating that all generators must
make a hazardous waste determination for their mixed waste.
    d. Major comments. Many commenters supported the proposed changes
to include the application of the mixture rules in a generator's
regulatory category determination. Others, however, requested greater
clarity and specificity regarding these regulatory provisions. They
asked for an explanation of the parameters allowed when mixing a solid
waste and a hazardous waste. They also asked for clarification about
when an SQG or LQG that mixes a characteristic hazardous waste with a
solid waste and generates a mixture that no longer exhibits the
hazardous characteristic must also meet the treatment standards found
at Sec.  268.40, and a clarification that a hazardous waste
determination is also required for wastes resulting from mixing of
solid waste and hazardous waste. EPA made adjustments to Sec.
262.13(f) in response to these comments where appropriate.
    One commenter pointed out that the applicable regulations for
mixtures are unrelated to the conditions for an exemption from
operating without a permit and therefore, the requirements applicable
to mixtures do not belong under Sec. Sec.  262.14, 262.16, and 262.17.
The Agency agrees these are valid

comments and has incorporated these changes as already described.
    Effect of the Reorganization: This section is affected by the
reorganization. The mixing provisions for VSQGs that are now found in
Sec.  262.13 were previously located in Sec.  261.5(i) and (h). The
reorganization is discussed in section VI of this preamble.

D. Very Small Quantity Generator Conditions for Exemption (40 CFR
262.14)

    The regulations for VSQGs have moved, with some changes, from their
previous location in Sec.  261.5 to Sec.  262.14 as part of the
reorganization of the generator regulations. Although there are some
changes to these regulations, they were mainly relocated from one part
to the other. Please see section VI of this preamble for a discussion
of the reorganization and for an overview of the new Sec.  262.14.

E. Marking and Labeling and Hazardous Waste Numbers (40 CFR
262.15(a)(5), 262.16(b)(6), 262.17(a)(5), 262.32(b)-(d), 263.12(b) and
268.50(a)(2)(i)

    This section discusses the final rules associated with the marking
and labeling of hazardous waste accumulated on site by SQGs and LQGs in
containers and tanks. This section also addresses the marking and
labeling requirements for (1) hazardous waste transporters that store
containers of hazardous waste at transfer facilities (see 40 CFR
263.12) and (2) TSDFs that store containers of hazardous waste under
the storage prohibition of the land disposal restriction requirements
at 40 CFR 268.50(a)(2)(i). Lastly, in this section, we discuss the
application of EPA hazardous waste codes to containers prior to
shipment off site to a designated facility.
    The regulatory changes EPA proposed to the marking and labeling for
waste accumulation units are designed to enhance three critical areas:
Risk communication, emergency preparedness and prevention, and the
accuracy of hazardous waste determinations. Although labeling may
appear to be an inconsequential ``paperwork'' exercise, it is, in fact,
vitally important to ensuring that waste is identified and managed
properly. Without proper labeling, hazardous waste may be mismanaged as
non-hazardous waste, or as the wrong type of hazardous waste, which
could cause harm to human health and the environment. As one commenter
stated, ``The department appreciates the opportunity to revisit this
important topic, as we believe [it] is of critical importance in both
the prevention of releases and in ensuring that, in the event of a
release, the response to the incident is appropriate for the materials
being stored.'' \34\ Accordingly, EPA proposed to strengthen the
marking and labeling for containers and tanks throughout the cradle to
grave management chain, including for SAAs, SQGs, LQGs, VSQGs that send
their hazardous waste to LQGs under the same control, episodic
generators, transfer facilities, and TSDFs. The Agency proposed
consistent changes for marking and labeling throughout the regulations,
and many of the comments we received on the topic marking and labeling
are relevant throughout, so the primary discussion of those changes
will be in this section. In certain instances, specific aspects of the
marking and labeling requirements are addressed in other sections of
this preamble, such as with VSQGs that send their hazardous waste to
LQGs under the same control, episodic generators, and SQGs and LQGs
that accumulate on drip pads and in containment buildings.
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    \34\ Missouri Department of Natural Resources, EPA-HQ-RCRA-2012-
0121-0223.
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1. Marking and Labeling for SQGs and LQGs With Containers in SAAs (40
CFR 262.15(a)(5))
    a. Introduction. The previous regulations for SAAs in Sec.
262.34(c)(1)(ii) required an SQG or LQG to mark its SAA containers
``either with the words `Hazardous Waste' or with other words that
identify the contents of the containers'' [emphasis added]. The Agency
proposed two modifications to strengthen the labeling and marking
regulations for containers accumulating hazardous waste in SAAs. First,
EPA proposed to change the ``or'' to an ``and'' and thus require that
generators mark containers in the SAA with both the words ``Hazardous
Waste'' and ``other words to identify the contents of the container.''
Although the words ``Hazardous Waste'' are important to convey that the
container contains a waste, as opposed to a product, and that a
hazardous waste determination has been made for the contents, it does
not convey more practical information regarding the contents of the
container that workers must be familiar with for purposes of on-site
handling.
    Second, while the words ``Hazardous Waste'' on containers provide
some measure of information regarding the contents, this information
fails to describe the specific hazards of the contents and what risk
these wastes could pose to human health and the environment. EPA
believes it is important that employees, transporters, downstream
handlers, emergency personnel, and EPA and state inspectors know as
much as possible about the potential hazards of the contents in
containers being accumulated, transported, and managed, whether on site
and/or off site, so that the hazardous wastes are managed in an
environmentally sound manner. Therefore, EPA proposed that SQGs and
LQGs must indicate the hazards of the contents of the containers while
giving them flexibility in how to comply with this new provision. That
is, we proposed that generators could indicate the hazards of the
contents of the container using any of several established methods,
including, but not limited to an EPA hazardous waste characteristic(s)
(ignitable, corrosive, reactive or toxic); a hazard class label
consistent with the DOT requirements at 49 CFR part 172 subpart E
(labeling); a label consistent with the OSHA Hazard Communication
Standard at 29 CFR 1910.1200; a chemical hazard label consistent with
NFPA code 704; or a hazard pictogram consistent with the United
Nations' Global Harmonized System (GHS). We also proposed that
generators could also use any other marking or labeling commonly used
nationwide in commerce that would alert workers and emergency
responders to the nature of the hazards associated with the contents of
the containers.
    These proposed changes were designed to alert workers, emergency
responders, and others to the potential hazards posed by the contents
of a container. Identifying the hazard increases awareness to workers
and others who might come into contact with the hazardous waste
container and reduces potential risks to human health and the
environment from container mismanagement. EPA reasoned that the pre-
transport requirements of part 262 subpart C already require hazardous
waste generators to comply with the DOT labeling/marking requirements
of 49 CFR part 172. By requiring generators to include information on
container labels while on site, the Agency proposed that generators
perform a task that is already required when preparing the container
prior to transporting the hazardous waste off site for subsequent waste
management. Because, in most cases the hazardous waste will be shipped
off site and thus be subject to DOT regulations, we proposed that SQGs
and LQGs could use the DOT hazard class labels to comply with the new
labeling and marking regulation for containers in SAAs. However, we
proposed several alternatives to using DOT hazard labels (as noted
previously)

from which generators could choose to indicate the hazards of the
container.
    In summary, EPA proposed to modify the marking and labeling
regulations for SAAs to require SQGs and LQGs to mark containers with
the following: (1) The words ``Hazardous Waste''; (2) other words that
identify the contents of the containers (examples which may include,
but are not limited to the name of the chemical(s), such as ``acetone''
or ``methylene dichloride,'' or the type or class of chemical, such as
``organic solvents'' or ``halogenated organic solvents'' or, as
applicable, the proper shipping name and technical name markings used
to comply with DOT requirements at 49 CFR part 172 subpart D); and (3)
an indication of the hazards of the contents of the container. Examples
of hazards include, but are not limited to, the applicable hazardous
waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic);
a hazard class label consistent with the DOT requirements at 49 CFR
part 172 subpart E (labeling); a label consistent with the OSHA Hazard
Communication Standard at 29 CFR 1910.1200; a chemical hazard label
consistent with the NFPA code 704; or a hazard pictogram consistent
with the United Nations' GHS. EPA also proposed that SQGs and LQGs
could use any other marking and labeling commonly used nationwide in
commerce that would alert workers and emergency responders to the
nature of the hazards associated with the contents of the containers.
EPA did not propose to change the existing requirement for when the SAA
maximum accumulation volumes are exceeded, to ``mark the container
holding the excess accumulation of hazardous waste with the date the
excess amount began accumulating'' (40 CFR 262.34(c)(2)).
    b. What is EPA finalizing for the marking and labeling of
containers in SAAs? The final regulations for marking and labeling of
containers in SAAs require SQGs and LQGs to mark containers with the
following: (1) The words ``Hazardous Waste''; and (2) an indication of
the hazards of the contents of the container including, but not limited
to, the applicable hazardous waste characteristic(s) (i.e., ignitable,
corrosive, reactive, toxic); hazard communication consistent with the
DOT requirements at 49 CFR part 172 subpart E (labeling) or subpart F
(placarding); a hazard statement or pictogram consistent with the OSHA
Hazard Communication Standard at 29 CFR 1910.1200; or a chemical hazard
label consistent with the NFPA code 704).
    c. What changed since proposal? The Agency received a large number
of comments regarding the marking and labeling changes throughout the
proposed rule. In response to comments, we have simplified the proposed
marking and labeling for containers in SAAs by eliminating the
requirement that SQGs and LQGs mark their containers with words that
identify the contents of their containers. Commenters argued, and EPA
agrees, that a requirement to identify the contents of a container
could be subject to much interpretation and problems with
implementation and compliance could emerge. One commenter suggested
that EPA's regulations should not interfere with a practice that is
often already done as a best management practice.\35\ Another commenter
suggested that we allow generators to choose between identifying the
contents of the container and identifying the hazards of the
contents.\36\ EPA considered this option, but concluded the potential
for interpretation and implementation problems would remain for those
generators that chose the option of identifying the contents of the
container and, therefore, decided against this approach. Nevertheless,
while the Agency is not finalizing the requirement that generators
identify the contents of their containers, we not only encourage, but
would expect, that generators would identify the contents of hazardous
waste in their containers considering both the operational and
potential downstream regulatory problems that would likely emerge if
the contents were not identified. As one commenter noted, ``it is a
best management practice for generators to know the nature of the
wastes they generate and accumulate, as well as for emergency
responders to know the nature of the wastes they may encounter.'' \37\
One other minor change is that we removed the mention of the United
Nations Globally Harmonized System (GHS) as a means of identifying the
hazards of the contents of the container. Now that OSHA has aligned its
regulations with the GHS, it is no longer necessary to identify the GHS
separately.
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    \35\ Colorado Department of Public Health and Environment
(CDPHE), EPA-HQ-RCRA-2012-0121-0085.
    \36\ Department of Energy, EPA-HQ-RCRA-2012-0121-0123.
    \37\ Savannah River Site, EPA-HQ-RCRA-2012-0121-0092.
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    d. Major comments. While some commenters supported our proposed
marking/labeling regulations, many other commenters objected to the
burden imposed by the additional marking/labeling requirements.
Commenters questioned the benefits and the practicality of the proposed
requirements, although one commenter noted it had similar marking and
labeling procedures in place for over twenty years and they worked very
well.\38\ Several commenters, particularly emergency responders,
expressed a preference for identifying the hazards of the contents over
identifying the contents in the container. In large part, this
expressed preference helped EPA decide to retain the requirement to
identify the hazards of the contents and eliminate the requirement to
identify the contents of the container.
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    \38\ Savannah River Site, EPA-HQ-RCRA-2012-0121-0092.
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    Some commenters had the misperception that we are requiring the use
of DOT hazard class labels on containers during on-site accumulation.
In actuality, the Agency is providing flexibility to generators in how
they identify the hazards of the hazardous waste in the container, and
using DOT hazard communication such as hazard class labels (or
placards, if appropriate) is one option for complying with this
requirement. In fact, one commenter supported EPA's approach of
``giving generators options to accomplish this strengthened
communication.'' \39\ However, as a matter of practicality, it would
benefit many generators to consider the use of DOT hazard
communication, since such a method would not only satisfy EPA's
requirement, but it may also satisfy DOT requirements when the wastes
are shipped off site to a RCRA-designated facility, such as an interim
status or permitted TSDF. It is important to note that if generators
choose to identify the hazards of the contents of their containers
using the DOT, OSHA or NFPA labeling methods, those methods must be
used appropriately. Furthermore, if a method other than DOT hazard
communication is used while the waste is accumulating on site, when the
waste is shipped off site, generators and transporters must ensure that
those markings and labels are located away from and do not obscure DOT
marking and labeling.\40\
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    \39\ Institute of Makers of Explosives, EPA-HQ-RCRA-2012-0121-
0126.
    \40\ See 49 CFR 172.304(a)(4) which requires DOT markings to be
``located away from any other marking (such as advertising) that
could substantially reduce its effectiveness. Also see 49 CFR
172.406(f) which states that a ``label must be clearly visible and
may not be obscured by markings or attachments.
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    A number of commenters also had the misperception that the
requirement for identifying the hazards of the contents is duplicative
with OSHA requirements and/or DOT requirements. On the contrary, EPA
notes that the marking

and labeling of containers is not duplicative of other regulations:
OSHA Hazard Communication does not apply to hazardous waste (See 29 CFR
1900.1200(b)(6)(i)) and DOT requirements only apply during
transportation. In fact, under the RCRA rules being finalized in this
rulemaking, the Agency believes it is closing a loophole for hazard
communication for hazardous wastes accumulated on site.
    On a separate but related matter, one commenter reminded EPA that
OSHA has new regulations for hazard communication that align with the
GHS system and that the regulated community needs to adjust to these
before RCRA changes are adopted.\41\ OSHA's transition to the GHS
regulations have been phased in over time, with June 1, 2016, as the
final phase-in date. These RCRA final regulations will not be effective
in most states until the authorized state adopts the revised
regulations, and therefore, most generators will have ample time to
plan for these RCRA marking and labeling changes before they become
effective. Furthermore, generators may choose to use the OSHA/GHS
system for identifying the hazards of the contents of their containers
and thereby reduce the burden of learning additional marking/labeling
mechanisms. It is important to note, however, that EPA is requiring
only that the hazards of the contents are identified. And although
generators may use the OSHA/GHS system to comply with this provision,
we are not requiring full OSHA/GHS compliant marking and labeling for
hazardous wastes. For our purposes, an OSHA/GHS hazard statement or
pictogram would be sufficient.
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    \41\ Tennessee Chamber of Commerce & Industry, EPA-HQ-RCRA-2012-
0121-0225.
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    Finally, commenters asked EPA to clarify several aspects of the
container marking and labeling requirements. First, one commenter asked
us to specify that the labeling should occur at the initial point of
generation.\42\ We concur with this commenter that the marking and
labeling requirements apply at the point of generation of the hazardous
waste which is both the time and place where the hazardous waste is
initially generated. Second, in keeping with existing EPA guidance,
generators would be able to continue to mark outer/secondary
containers, such as labpacks, color-coded bins, etc. with the words
``Hazardous Waste'' and the hazards of the hazardous waste instead of
marking a small container (e.g., tubes, vials, etc.) that is placed
inside the secondary container.\43\ Alternatively, as one commenter
suggested, generators using small containers may attach a tag to a
container to comply with the marking and labeling requirements.\44\
Third, if a hazardous waste is in a container that already has the
appropriate marking and labeling (e.g., the hazardous waste is an
unused commercial chemical product that is in its original container
with an intact label), the existing marking and labeling would be
sufficient. The generator would not need to duplicate the marking and
labeling, assuming the original label contains the information
necessary to comply with the marking and labeling requirements.
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    \42\ Tennessee Department of Environment and Conservation, EPA-
HQ-RCRA-2012-0121-0116.
    \43\ See Robert Springer, Director of Office of Solid Waste to
RCRA Directors, Regions 1-10, Frequently Asked Questions About
Satellite Accumulation Areas, March 17, 2004.
    \44\ Carl Severn, EPA-HQ-RCRA-2012-0121-0079.
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2. Marking and Labeling for SQGs and LQGs With Containers in CAAs (40
CFR 262.16(b)(6) and 262.17(a)(5))
    a. Introduction. The previous LQG and SQG regulations in Sec.
262.34(a)(3) and Sec.  262.34(d)(4), respectively, required each
container to be labeled or marked clearly with the words, ``Hazardous
Waste.'' The Agency proposed two modifications to strengthen the
labeling and marking for SQGs and LQGs accumulating hazardous waste in
containers. In order to provide continuity and consistency, these
changes were similar to those proposed for containers in satellite
accumulation areas (see section IX.E.1.) First, the Agency proposed
that SQGs and LQGs accumulating hazardous waste in containers mark them
with the words ``Hazardous Waste.'' Second, EPA proposed that SQGs and
LQGs mark or label their containers in CAAs with ``other words that
identify the contents of the containers.'' Third, we proposed that SQGs
and LQGs mark and label their containers with an indication of the
hazards of the contents. EPA stated that this approach would establish
consistency between the marking and labeling practices of hazardous
wastes accumulated in containers in SAAs and CAAs, and thereby allowing
some degree of business efficiency as containers are moved from SAAs
into CAAs. We did not propose to change the existing provision that
requires SQGs and LQGs to mark clearly and visibly the date
accumulation began on each container and make that marking visible for
inspection.
    b. What is EPA finalizing? The Agency is finalizing the following
marking and labeling provisions for SQGs and LQGs accumulating
hazardous wastes in containers located in CAAs. SQGs and LQGs
accumulating hazardous waste in containers must mark their containers
with the words ``Hazardous Waste.'' SQGs and LQGs also must mark and
label their containers with an indication of the hazards of the
contents of the containers. Examples of hazards include, but are not
limited to, the applicable hazardous waste characteristic(s) (i.e.,
ignitable, corrosive, reactive, toxic); hazard communication consistent
with the DOT requirements at 49 CFR part 172 subpart E (labeling) or
subpart F (placarding); a hazard statement or pictogram consistent with
the OSHA Hazard Communication Standard at 29 CFR 1910.1200; or a
chemical hazard label consistent with the NFPA code 704. Also, as
discussed in section IX.E.7, SQGs and LQGs are required to mark their
containers with the applicable EPA hazardous waste number(s) prior to
shipping their containers off site to a RCRA-permitted TSDF.
    The marking and labeling requirements for containers in CAAs are
consistent and identical to the marking and labeling requirements for
hazardous wastes accumulated in containers located in SAAs. For the
reasons cited under the SAA discussion (i.e., simplifying requirements,
avoiding implementation problems, responding to commenter concerns),
EPA is finalizing the same marking and labeling requirements for
hazardous wastes accumulated in containers located in CAAs and SAAs.
The only difference is that SQGs and LQGs must mark or label containers
in SAAs with the date that maximum volumes (or mass) are exceeded,
while SQGs and LQGs must mark or label containers in CAAs with the date
the hazardous waste first began accumulating. Both of these dating
requirements are existing requirements that remain unaffected by this
final rule.
    c. What changed since proposal? For the same reasons discussed
under section IX.E.1, the Agency is not finalizing the requirement for
SQGs and LQGs with CAAs to mark or label their containers with ``other
words that identify the contents of the container.''
3. Marking and Labeling for SQGs and LQGs With Tanks in CAAs (40 CFR
262.16(b)(6)(ii) and 262.17(a)(5)(ii))
    a. Introduction. The Agency also proposed a number of changes to
improve the marking and labeling of hazardous wastes accumulated in
tanks by both SQGs and LQGs at Sec.  262.16(b)(6)(ii) and Sec.
262.17(a)(5)(ii),

respectively. Specifically, the Agency proposed that SQGs and LQGs: (1)
Mark or label their tanks with the words ``Hazardous Waste''; (2) use
inventory logs, monitoring equipment, or records to identify the
contents of the tank and its associated hazards; (3) use inventory
logs, monitoring equipment or records to identify the date each period
of accumulation begins; and (4) keep inventory logs or records with the
above information in close proximity to the tank.
    b. What is EPA finalizing? EPA is finalizing the following marking
and labeling requirements for SQGs and LQGs accumulating hazardous
waste in tanks: (1) While hazardous wastes are being accumulated on
site, SQGs and LQGs must mark their tanks with the words ``Hazardous
Waste''; (2) consistent with the revised requirements for the marking
and labeling of containers, SQGs and LQGs must mark or label their
tanks with an indication of the hazards of the contents. Examples of
hazards include, but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard
communication consistent with the DOT requirements at 49 CFR part 172
subpart E (labeling) or subpart F (placarding); a hazard statement or
pictogram consistent with the OSHA Hazard Communication Standard at 29
CFR 1910.1200; or a chemical hazard label consistent with the NFPA code
704); (3) use inventory logs, monitoring equipment, or other records to
demonstrate that hazardous waste has been emptied within 180 days for
SQGs (or 90 days for LQGs) of first entering the tank if using a batch
process, or in the case of a tank with a continuous flow process,
demonstrate that estimated volumes of hazardous waste entering the tank
daily exit the tank within 180 days for SQGs (or 90 days for LQGs) of
first entering; and (4) keep inventory logs or records with the above
information on site and readily available for inspections.
    c. What changed since proposal? Three changes were made between the
proposed rule and the final rule. First, consistent with the changes to
container marking and labeling, SQGs and LQGs are not required to
identify the contents of their tanks, although we strongly recommend
generators maintain records identifying the contents of the tanks as a
best management practice. Second, we have modified where inventory logs
or records for tanks must be kept. We had proposed that the information
must be in close proximity to the tank. Commenters indicated that
having records in close proximity may not always be practical or even
desirable. For instance, some hazardous waste accumulation tanks are
outside and having records in close proximity would mean that the
records would be exposed to the elements. In response to comments, we
have modified the regulations so that the records must be kept on site
and readily available for inspections. Ideally these records will be in
close proximity to where hazardous waste is being accumulated in the
tank, or if not practical (i.e., exposure to weather, physically
infeasible, etc.) in a control room, or other central location at the
facility.
    Third, the Agency changed the dating requirement for tanks at SQGs
and LQGs so that instead of using logs, monitoring equipment or records
to identify when the 180- or 90-day accumulation period begins,
generators must use logs, monitoring equipment or other records to
demonstrate that hazardous waste is either emptied or removed from the
tank within 180 or 90 days, with the final regulations now addressing
both batch and continuous flow processes. While the Agency discussed
both types of processes in the preamble to the proposed rule, the
regulatory text in the proposed rule failed to address continuous flow
processes. SQGs and LQGs with batch process tanks must demonstrate that
their tanks are emptied every 180 or 90 days, respectively. However,
the Agency recognizes that when hazardous waste is accumulated in tanks
with continuous flow processes it may not be possible for SQGs and LQGs
to demonstrate that a tank is emptied every 180 or 90 days,
respectively, from when the hazardous waste first entered the tank.
Therefore, generators with tanks with a continuous flow process have
flexibility in how to demonstrate that hazardous waste has been turned
over (as opposed to emptied) in a tank. For a continuous flow process,
this demonstration involves a generator identifying the estimated daily
input or inflow of hazardous wastes into the tank, the estimated
outflow from the tank, and the capacity of the tank to estimate how
many days the hazardous waste will reside in the tank before exiting.
    As an example, if a tank with a continuous flow process has a
capacity of 10,000 gallons, an inflow of hazardous wastes of 1,000
gallons per day and an outflow estimated at 500 gallons per day, then
the expected residence time of the hazardous waste in the tank would be
20 days. The residence time would be calculated by first subtracting
the daily outflow from the daily inflow (1,000 - 500 = 500). Then the
tank capacity would be divided by the difference between the outflow
and the inflow (10,000/500 = 20). The resulting residence time is 20
days.
    d. Major comments. Commenters were supportive of the proposed
changes for marking and labeling of tanks with the words ``Hazardous
Waste'' and maintaining records that prove the amount of time hazardous
waste remained in the tank did not exceed either 90 or 180 days for
LQGs and SQGs, respectively. One commenter mentioned, and EPA agrees,
that the markings must be visible and legible to a person observing the
tank. Another commenter supported the options we proposed for
indicating the hazards of tanks, noting that it will help generators be
able to choose the method that work best for their facility. Several
commenters were supportive of the flexibility provided to generators to
prove the amount of time hazardous waste remained in the tank (e.g.,
inventory logs, monitoring equipment, or records). EPA notes that
generators may use paper or electronic records, provided they are on
site and readily available for inspection. Several commenters expressed
concern that EPA did not explicitly discuss tanks with continuous flow
processes in the proposed regulatory text (though they are discussed in
the preamble to the proposed rule). As discussed previously, the Agency
has revised the regulatory text of the final rule to explicitly address
these comments.
4. Marking and Labeling for SQGs and LQGs With Drip Pads and
Containment Buildings
    In the proposed rule, the Agency proposed marking and labeling
requirements for generators accumulating hazardous waste on drip pads
and in containment buildings. Upon review of comments and further
evaluation, the Agency now believes the marking and labeling provisions
for these type of units belongs more appropriately under the discussion
of the waste accumulation regulations for these types of units.
Therefore, for further discussion, the Agency directs the reader to
section IX.G.--Accumulation of Hazardous Waste by SQGs and LQGs on Drip
Pads and in Containment Buildings.
5. Marking and Labeling for Transfer Facilities (40 CFR 263.12(b))
    a. Introduction. The Agency proposed to change the marking and
labeling requirements for transporters handling hazardous waste in
containers at transfer facilities, found at Sec.  263.12(b), to be
consistent with the proposed

changes for marking and labeling for containers for SQGs, for LQGs, and
in SAAs. More specifically, EPA proposed that transporters storing
hazardous wastes in containers at transfer facilities mark the
containers with the following: (1) The words ``Hazardous Waste''; (2)
other words that identify the contents of the containers, with examples
that may include, but are not limited, the name of the chemical(s), or,
as applicable, the proper shipping name and technical name markings
used to comply with DOT requirements at 49 CFR part 172 subpart D; and
(3) an indication of the hazards of the contents of the container. In
addition to these proposed changes, EPA also proposed to require that
containers of hazardous waste at transfer facilities be labeled with
the applicable EPA hazardous waste number(s) (EPA hazardous waste
codes), which would help the TSDF receiving the hazardous waste comply
with the LDR regulations in 40 CFR part 268.
    The Agency proposed these modifications to ensure hazardous wastes
are appropriately labeled and marked throughout its cradle-to-grave
management, including transportation to a RCRA-permitted or interim
status TSDF or to another transfer facility. Similarly, this additional
information on the container would alert workers and other handlers to
the contents of the container and the potential hazards of the
materials therein.
    In proposing these changes, the Agency believed that, in almost all
cases, containers received by the transfer facility would already be
marked and labeled by the generator, and therefore, any additional
burden on the transfer facility would be minimal. However, in the
preamble to the proposed rule, the Agency identified other situations
where a transporter would be required to initiate the marking and
labeling of a container; e.g., when the transporter consolidates two
containers with the same hazardous waste into a new container or when
it is able to combine and consolidate two different hazardous wastes
that are compatible with each other and are able to be subsequently
managed consistently in compliance with the applicable regulations in
parts 264, 265, 267, 268 and 270 of this chapter.
    b. What is EPA finalizing? The Agency is requiring that
transporters must mark or label containers with the words ``Hazardous
Waste'' when they consolidate the contents of two or more containers
with the same hazardous waste into a new container, or when the
transporter consolidates hazardous wastes that are compatible with each
other. As discussed in section IX.E.7, when such consolidation occurs,
the transporter will also be required to mark or label the container
with the applicable RCRA waste codes, in compliance with Sec.
262.32(b) or (c).
    c. What changed since proposal? First, consistent with the marking
and labeling requirements being finalized in several sections of this
rule, transporters are not required to mark or label the container with
its contents. However, the Agency expects that transporters, as well as
generators, will identify the contents of the container as a best
management practice. Second, as discussed elsewhere, in cases where a
transporter must mark its containers with the applicable EPA hazardous
waste codes, they will have flexibility in how they comply. Third,
because containers at transfer facilities are, by definition, in
transport, DOT marking and labeling apply to them. As a result, we have
removed the proposed requirement to identify the hazards of the
container, since it would be duplicative of (and possibly even
contradictory to) the DOT requirements. Fourth, consistent with the
pre-transport requirements for SQGs and LQGs in Sec.  262.32, the
Agency is clarifying that the marking and labeling applies to
transporters using containers of 119 gallons or less (i.e., what DOT
refers to as non-bulk packaging).
    d. Major comments. Comments both supported and opposed this
provision. Critical comments questioned the need for this provision
because generators are responsible for the marking and labeling of
containers that subsequently arrive at transfer facilities. Similarly,
more than one commenter questioned the need for transporters to mark
containers with the applicable EPA hazardous waste codes and discussed
the problems requiring this information would cause to the waste
management industry since they have well-established waste profile
systems that accomplish that function. One commenter also was critical
of the manner in which the regulatory text was written whereby the
Agency made it the responsibility of the transporter to ensure all
marking and labeling information is correct. Another commenter pointed
out that as per DOT regulations, rail cars used to accumulate and
transport hazardous waste and other bulk shipments do not have to be
labeled ``Hazardous Waste'' in transit. As discussed in an earlier
section, the Agency took these comments into account when finalizing
this rule.
6. Marking and Labeling for TSDFs With Containers and Tanks (40 CFR
268.50(a)(2)(i))
    a. Introduction. As part of its effort to improve risk
communication with respect to the management of hazardous waste, the
Agency also proposed changing the regulations for marking and labeling
containers at TSDFs in Sec.  268.50(a)(2)(i)--consistent with the
proposed marking and labeling changes for SAAs, SQGs, LQGs, and for
transfer facilities. More specifically, EPA proposed that TSDFs storing
hazardous wastes in containers mark their containers with the
following: (1) The words ``Hazardous Waste''; (2) other words that
identify the contents of the containers, with examples that may
include, but are not limited, the name of the chemical(s), or, as
applicable, the proper shipping name and technical name markings used
to comply with DOT requirements at 49 CFR part 172 subpart D; and (3)
an indication of the hazards of the contents of the container. The
Agency also proposed that containers must be labeled with the
applicable EPA hazardous waste number(s) (EPA hazardous waste codes),
which help the TSDF comply with the applicable land disposal
restriction (LDR) regulations. The LDR regulations list many of the
treatment standards based on the hazardous waste code. In the proposal,
the Agency left unchanged the pre-existing provisions of Sec.
268.50(a)(2)(i), which require TSDFs to clearly mark each container to
identify its contents and the date each period of accumulation begins.
    b. What is EPA finalizing? The Agency is finalizing the requirement
for TSDFs to mark or label containers of hazardous waste with the words
``Hazardous Waste,'' an indication of the hazards of the contents, and
the applicable EPA hazardous waste numbers (waste codes) consistent
with Sec.  262.32(b)-(d). As with transfer facilities, EPA expects
almost all incoming containers received by a TSDF will already have the
appropriate marking and labeling information and, therefore, that a
TSDF will usually only need to mark or label a container themselves
when receiving shipments from facilities that are neither SQGs nor
LQGs. As an example, TSDFs may receive hazardous wastes directly from
VSQGs. Under the federal program, VSQGs are not required to mark and
label their containers ``Hazardous Wastes'' and identify the hazards
associated with the wastes in the container. In this situation, the
TSDF must mark or label the container with the words ``Hazardous
Waste,'' the

applicable hazardous waste codes, and identify the hazards of the
container. Additionally, consistent with the pre-existing regulations
at Sec.  268.50(a)(2)(i), a TSDF must also continue to mark or label
each container of hazardous waste to identify the contents of the
container and the date each period of accumulation begins, regardless
of whether the TSDF receives the containers from a VSQG, SQG, LQG, or
transfer facility. The Agency is also reiterating that if a TSDF
generates its own hazardous waste, it must follow the applicable RCRA
generator regulations in part 262, including the marking and labeling
provisions for containers and tanks.
    c. What changed since proposal? The Agency revised the marking and
labeling requirements pertaining to identifying the hazards of the
container, consistent with changes in other parts of this rule (i.e.,
the SAAs, SQGs, LQGs, and transfer facilities marking and labeling
requirements).
    d. Major comments. The Agency received few comments concerning this
provision of the rule. Some commenters supported the proposed changes
while other commenters stated that these changes were unnecessary. As
discussed previously, the Agency believes it has responded to
commenters who expressed concerns by clarifying the applicability of
this provision.
7. Hazardous Waste Numbers (Waste Codes) (40 CFR 262.32(b) and (c))
    a. Introduction. The Agency proposed Sec.  262.32(c) to require
SQGs and LQGs to mark their containers with the applicable EPA
hazardous waste number (RCRA hazardous waste code) prior to
transporting their hazardous waste off site to a designated RCRA
facility for subsequent management. EPA proposed this revision so that
TSDFs can readily identify the contents of hazardous waste containers
they are receiving from generators and effectively treat the wastes to
meet LDRs. As stated in the preamble to the proposed rule, the Agency
believes most generators, or their designated waste handlers, already
mark their containers with the applicable EPA hazardous waste numbers
prior to transporting their hazardous waste off site. As part of this
discussion, the Agency stated that by marking containers with EPA
hazardous waste numbers, the overall burden would be decreased because
the TSDF would avoid the need to identify the hazardous waste or send
the waste back to the generator for proper identification.
    b. What is EPA finalizing? The Agency is finalizing the pre-
transport marking requirements at Sec.  262.32 by modifying Sec.
262.32(b) to include the EPA hazardous waste number or code as part of
the marking requirements for containers, and also adding Sec.
262.32(c) to allow generators, transporters and TSDFs, in lieu of Sec.
262.32(b), to use a nationally recognized electronic system, such as a
bar-coding system that is part of a waste management industry's waste
profiling system, to identify the applicable EPA hazardous waste
numbers. A waste profiling system typically consists of bar codes,
scanners, and an associated computer system. Waste management industry
commenters indicated that they use bar code electronic systems, similar
to commercial transport companies, to profile hazardous waste.
Information often includes a description of the hazardous waste in
terms of physical state, common name, hazard codes, LDR treatment
standards, and DOT description.\45\ Some of these electronic systems
also include the EPA hazardous waste numbers. This approach also allows
for the development of future technologies to accomplish the same
function as the bar-coding system. The Agency is providing this
flexibility because while there is considerable movement by generators
and the waste management industry in adopting the use of electronic
systems that contain detailed waste profiling information, it is
neither universal nor mandatory. EPA is requiring that SQGs and LQGs
include EPA hazardous waste codes, either by marking their containers
or through electronic means, to inform the receiving TSDF of the
container's contents in order to ensure hazardous wastes are managed to
meet the applicable LDR treatment standards.
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    \45\ See comments from Veolia ES Technical Solutions LLC, EPA-
HQ-RCRA-2012-0121-0181; Environmental Technology Council, EPA-HQ-
RCRA-2012-0121-0134; Waste Management, EPA-HQ-RCRA-2012-0121-0159
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    For lab packs, which typically contain many different wastes, we
are providing an exception to the requirement to include EPA hazardous
waste numbers if the lab packs will be incinerated. Specifically, lab
packs that will be treated using the alternative treatment standard of
incineration, as allowed by Sec.  268.42(c), do not have to be marked
or labeled with the EPA hazardous waste numbers. However, lab packs
that contain D004 (arsenic), D005 (barium), D006 (cadmium), D007
(chromium), D008 (lead), D010 (selenium) or D011 (silver), the EPA
hazardous waste number must be marked or labeled with the EPA hazardous
waste numbers (or use electronic means may be used). These specific
metals must be identified because Sec.  268.42(c)(4) requires any
incinerator residues from lab packs that contain any of these specific
metals to undergo further treatment prior to land disposal.
    c. What changed from proposal? In response to comments, the Agency
is providing needed flexibility in complying with this requirement to
account for alternative ways of marking containers with EPA hazardous
waste codes. By doing so, the Agency is accommodating existing
processes used by many generators and the waste management industry.
Also in response to comment, we are providing an exception for lab
packs that will be incinerated.
    d. Major comments. Several commenters pointed out that while many
generators still mark their containers with the applicable EPA
hazardous waste codes, the industry trend is for generators to rely on
their waste handlers who have developed sophisticated computerized
systems that use detailed waste profiling procedures with bar codes and
scanners (similar to package shipping and other national logistics
companies). They use these systems to accurately identify individual
drum contents and some include the EPA hazardous waste numbers. As
stated by one commenter, TSDFs commonly prepare labels and shipping
papers for their generator customers, and as part of this service, also
utilize a waste profiling process that fully describes the waste in
terms of physical state, common name, hazard codes, LDR applicability,
and DOT description.\46\ This commenter argues that to not allow this
industry-wide service to continue would only cause confusion to a well-
established process. EPA agrees and has modified the requirement
accordingly.
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    \46\ Environmental Technology Council, EPA-HQ-RCRA-2012-0121-
0134.
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F. Revisions to Satellite Accumulation Area (SAA) Regulations for SQGs
and LQGs (262.15)

    Hazardous waste generators are allowed, though not required, to use
SAAs, provided that the generators meet the conditions for their use.
SAAs are designed to assist generators who generate and accumulate
small amounts of hazardous waste in different areas of their
facilities. Alternatively, SQGs and LQGs may choose to accumulate
hazardous waste only in CAAs rather than in SAAs. If an SQG or LQG does
choose to accumulate hazardous waste in an SAA, the generator may
accumulate a limited amount of

hazardous waste within each SAA. Once that threshold is reached, the
SQG or LQG must transfer the hazardous waste to a CAA. Alternatively, a
generator may accumulate hazardous waste within an SAA and never move
the waste to a CAA once the threshold is reached, but instead, ship the
waste directly off site to a RCRA designated facility (e.g., a TSDF).
    The Agency proposed six changes to the regulations for SAAs, now
found at Sec.  262.15. These six proposed regulatory changes and the
final regulatory changes are individually discussed here in detail. In
addition to these six proposed regulatory changes, EPA discussed two
additional issues in the preamble to the proposed rule: (1) Our
intention to rescind a guidance memo regarding the accumulation of
reactive (D003) hazardous waste at locations away from the point of
generation and (2) examples to help generators better understand the
term ``under the control of the operator,'' which is used in the SAA
regulations. These proposed changes were in response to stakeholder
requests for additional clarification, additional flexibility or
increased environmental protection that have been expressed through the
years in various interactions, including the 2004 Generator
Initiative,\47\ with the regulated community, as well as state and
regional regulators.
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    \47\ In 2004, EPA held a series of public meetings to solicit
input from stakeholders about the generator regulations.
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    The Agency is finalizing these six proposed regulatory changes,
with minor modifications, along with three additional minor changes.
These nine regulatory changes are all summarized individually here, and
six of the changes are discussed in further detail later on. First,
SQGs and LQGs that accumulate hazardous waste in SAAs will now be
required to comply with the special requirements for incompatible
wastes found at Sec.  265.177 (with minor revisions). Second, we are
providing regulatory flexibility by providing limited exceptions to the
regulation requiring generators to keep containers closed at all times
(with minor revisions). Third, when maximum volumes are reached in
SAAs, we are clarifying that generators will have three consecutive
calendar days to remove the hazardous waste from the SAA or come into
compliance with the CAA regulations. Fourth, we are providing
additional flexibility to allow generators that accumulate acute
hazardous waste in SAAs to choose between using a maximum accumulation
volume (1 quart for liquids) or maximum accumulation weight (1 kg or
2.2 lbs for solids). Fifth, we are clarifying the regulations for
situations when the maximum volume (or weight) is exceeded in an SAA.
Sixth, containers used in SAAs will be subject to the strengthened
marking and labeling standards (note these marking and labeling changes
are the same as those for containers in CAAs and were discussed
previously in section IX.E. of the preamble to this final rule). The
seventh change being made to SAA regulations pertains to the
applicability of preparedness, prevention and emergency procedures. The
eighth change is a minor wording change in response to a comment from
the Association of State and Territorial Solid Waste Management
Officials (ASTSWMO).\48\ They recommend, and we agree, that under Sec.
262.15(a)(1), the regulatory language should have the word
``immediately'' added to state explicitly that if a container in an SAA
is leaking, the generator must immediately transfer the hazardous waste
to a container in good condition that does not leak (emphasis added).
Similarly, a generator has the option to transfer a damaged or leaking
container to a CAA, also immediately, and we have added language to
clarify that the CAA must be operated in compliance with the CAA
regulations. Therefore, Sec.  262.15(a)(1) now states that if a
container holding hazardous waste is not in good condition, or if it
begins to leak, the generator must immediately transfer the hazardous
waste from this container to a container that is in good condition and
does not leak, or immediately transfer and manage the waste in a
central accumulation area operated in compliance with Sec.  262.16(b)
or Sec.  262.17(a). The ninth change is rewording of Sec.  262.15(a) to
be consistent with changes made to the SQG and LQG regulations to make
it clear that an SQG or LQG can choose to operate an SAA and that the
SAA is not required to comply with the SQG regulations of Sec.
262.16(b) or LQG regulations of Sec.  262.17(a), and is not required to
have a permit or interim status, and is not required to comply with
parts 124, 264 through 267, and 270, provided the generator complies
with the conditions of exemption for an SAA.
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    \48\ Association of State and Territorial Solid Waste Management
Officials (ASTSWMO), EPA-HQ-RCRA-2012-0121-0217.
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    With regard to the non-regulatory actions pertaining to SAAs that
were discussed in the proposed rule, we are moving forward to rescind
the January 13, 1988 memo that allowed a storage shed outside of a
building where a reactive hazardous waste (D003) is initially generated
to be considered an SAA.\49\ Finally, we will further discuss in the
preamble what is meant by ``under the control of the operator,'' a term
that is used in the SAA regulations. These two non-regulatory actions
are discussed individually in detail later.
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    \49\ Letter from Marcia E. Williams, Director of EPA's Office of
Solid Waste, to Michael E. Young, Atlantic Research Corporation,
January 13, 1988, RCRA Online 11317.
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1. Requiring SQGs and LQGs To Comply With the Special Requirements for
Incompatible Wastes for Containers Accumulating Hazardous Wastes in
SAAs (40 CFR 262.15(a)(3))
    We proposed that SQGs and LQGs accumulating hazardous waste in SAAs
must comply with the special requirements for incompatible wastes found
at Sec.  265.177. The regulations at Sec.  265.177 include three
requirements (1) incompatibles must not be placed in the same container
unless Sec.  265.17 (b) \50\ is complied with, (2) hazardous waste must
not be placed in an unwashed container that previously held an
incompatible unless Sec.  265.17 (b) is complied with and (3) a
container holding an incompatible must be separated from the other
material by means of a dike, berm, wall, or other device. The Agency
believes that in developing the regulations for SAAs in 1984, it
inadvertently failed to account for SQGs and LQGs that might accumulate
incompatible wastes. Most commenters were supportive of requiring SQGs
and LQGs that accumulate hazardous waste in SAAs to comply with the
special requirements for incompatible wastes found at Sec.  265.177,
including a few states that said they already have corrected this
oversight in their state regulations. However, some commenters argued
it was unnecessary to add it to the regulations because it is in a
generator's best interest to keep incompatibles separate and therefore
they already comply with this best management practice at their SAAs.
The Agency is encouraged to hear from commenters that they believe
generators already routinely segregate their incompatibles.
Nevertheless, for additional clarity and to ensure generators that are
not following these best management practices adopt them, the Agency is
finalizing the requirement that SQGs

and LQGs accumulating hazardous waste in SAAs comply with the part 265
subpart I container management standards for incompatible hazardous
wastes at Sec.  265.177. We agree with the commenter who ``view[s] this
as a codification of an existing safe practice.'' \51\
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    \50\ Section 265.17(b), which is entitled General requirements
for ignitable, reactive, or incompatible wastes is in part 265
subpart B, the General Facility Standards that apply to interim
status TSDFs. Section 265.17(b) also applies to SQGs and LQGs that
accumulate ignitable, reactive, or incompatible wastes in CAAs.
    \51\ University of Nebraska-Lincoln (UNL), comment number EPA-
HQ-RCRA-2012-0121-0121.
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    Several commenters objected to the third requirement of Sec.
265.177 in that they felt it unnecessary and impracticable to require
that a container holding an incompatible hazardous waste in an SAA be
separated from the other material by means of a dike, berm, wall, or
other device. This proposed regulatory language was taken directly from
the language in Sec.  265.177, which applies to interim status TSDFs,
as well as CAAs at SQGs and LQGs. The commenters argue that a dike,
berm or wall would not be feasible in the confines of an SAA, which is
only allowed to accumulate a maximum of 55 gallons of hazardous waste.
The Agency agrees that most SAAs would not accommodate a dike, berm or
wall. Although, the proposed regulatory language also allows for
``other device[s],'' to keep incompatibles segregated, the Agency has
decided to replace the regulatory language ``by means of a dike, berm,
wall or other device'' with the phrase ``by any practical means'' in
order to address commenters' concerns. One commenter provided an
example of what they do to avoid potential comingling of incompatible
wastes in their CAA--they ``. . . segregate incompatible wastes onto
separate pallets in the 90-day accumulation area. Pallets holding
incompatible wastes are separated by at least one pallet width (i.e.,
the ``pallet footprint'') in all directions. For example, a pallet of
oxidizers and a pallet of flammables cannot be placed next to, above,
or below each other.'' \52\ Another commenter suggested that drip
trays, or secondary containers would be more appropriate means to
segregate incompatibles accumulating in SAAs.\53\ The Agency believes
that either of these practices constitute ``any practical means,'' and
are allowed by the SAA regulations for separating incompatibles in
SAAs.
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    \52\ Stericycle, comment number EPA-HQ-RCRA-2012-0121-0127.
    \53\ Pacific Northwest National Laboratory, comment number EPA-
HQ-RCRA-2012-0121-0078.
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    EPA is making one additional minor revision to this section of the
SAA regulations. We are removing the reference to piles, open tanks and
surface impoundments. Containers are the only type of waste
accumulation units allowed in SAAs. As previously noted, these
regulations were copied from the interim status TSDF regulations, where
these additional waste accumulation units are allowed. At the time of
proposal, the Agency inadvertently overlooked this and is therefore
making conforming changes as part of this rulemaking.
2. Limited Exceptions To Keeping Containers Closed at all Times in SAAs
(40 CFR 262.15(a)(4))
    The previous regulations for generators accumulating hazardous
waste in SAAs required containers accumulating hazardous waste to be
kept closed, except when it is necessary to add or remove waste (Sec.
262.34(c)(1)(i), which referenced the container regulations for interim
status TSDFs in Sec.  265.173(a)). We proposed to modify this provision
for SAAs, now found at Sec.  262.15, in order to allow containers of
hazardous waste in SAAs to remain open under limited circumstances.
These changes pertain only to containers accumulating hazardous waste
in SAAs; it will not affect the requirements for container management
at CAAs or interim status TSDFs. Specifically, we proposed that
containers of hazardous waste in SAAs may be open when it is necessary
either for the operation of equipment to which the SAA container is
attached or to prevent dangerous situations, such as the build-up of
extreme pressure or heat, because closing a container can be more
dangerous than keeping it open temporarily in those situations.
Stakeholders had identified situations where keeping SAA containers
closed can interfere with the operation of equipment when the container
is attached directly to the equipment via piping or tubing.
Stakeholders had also identified situations in which closing a
container can be more dangerous than keeping it open temporarily; for
example, when the hazardous waste is very hot. Therefore, EPA proposed
to modify the regulations to allow containers to be vented in such
situations. In 2008, the Agency finalized these limited exceptions to
the closed container requirement as part of the Academic Laboratories
rule (subpart K) and thought they would benefit other generators as
well.
    Nearly all commenters supported this proposed change. However, some
state commenters were concerned the regulatory language was not
sufficiently clear that this exception to requiring closed containers
was intended for temporary situations only. In the preamble to the
proposed rule, we indicated that the requirement to keep the container
closed applies when the danger passes (e.g., the contents cool), and
when the equipment is not in operation. However, these commenters
thought the regulatory text should include language to make our intent
clear. In response to these concerns, EPA is finalizing this provision,
as proposed, with a minor addition. The regulatory language has been
modified so that a container holding hazardous waste must be closed at
all times during accumulation, except when adding, removing, or
consolidating waste, or when temporary venting of a container is
necessary (1) for the proper operation of equipment, or (2) to prevent
dangerous situations, such as build-up of extreme pressure (emphasis
added). EPA stresses it does not intend to create a loophole to the
closed container requirement or to allow intentional evaporation of
hazardous waste. Rather, the intent of the flexibility is to address
the limited cases in which ``strict adherence to the ``container
closure'' requirements could substantially increase a risk of a
hazardous waste incident rather than decrease it.'' \54\ As with the
proposed rule, the flexibility for containers to remain open in
specific situations applies only to containers in SAAs because that is
where hazardous waste initially accumulates. At this time, we are not
extending this flexibility to containers accumulating in CAAs.
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    \54\ Minnesota Pollution Control Agency, EPA-HQ-RCRA-2012-0121-
0232.
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3. Clarify What Is Meant by ``Three Days'' (40 CFR 262.15(a)(6)(i))
    The previous SAA regulations at Sec.  262.34(c)(2) stated that a
generator who accumulates either hazardous waste or acutely hazardous
waste must, with respect to that amount of excess waste, comply
``within three days'' with paragraph (a) of that section or other
applicable provisions of the chapter. Over the years, the Agency was
frequently asked what was meant by ``three days.'' As a result, the
Agency proposed to amend the regulations to replace the term ``three
days'' with ``three calendar days,'' as opposed to ``three business
days'' or ``three working days.'' The Agency already clarified this
term in a 2004 memo,\55\ which was based on preamble discussions from
the

proposed and final SAA regulations.\56\ As stated in the memo,
``Originally, the Agency had proposed to use 72 hours as the time limit
but realized that determining when 72 hours had elapsed would have
required placing both the date and time of day on containers. In the
final rule the Agency switched to using three days so that generators
only need to date containers that hold the excess of 55 gallons of non-
acute hazardous waste (or 1 quart of acute hazardous waste).'' The