This is also a significant additional burden for manufacturing facilities with regard to common solid wastes they generate that they know are not hazardous wastes, but an inspector may not know that and he/she may expect and demand waste determination documentation. Examples include inert plastics, non-contaminated wood, clean soil, non-painted metal, food waste, road repair waste, shrubbery and vegetative waste, raw water supply filter waste, packaging, office waste, and product trimmings. EPA suggests that documentation would not be required for common solid wastes, but unless EPA provides a complete list of such common solid wastes, plant owners and operators would risk non-compliance if they assume that an inspector will agree with them that a particular wastestream is a common solid waste not requiring waste determination documentation. Of course, this whole issue of what is or is not a common solid waste requiring waste classification documentation is avoided if EPA does not require waste determination and documentation of solid wastes that are not hazardous wastes, which we urge EPA to do. (0219)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: VIII.B.6 Documenting and maintaining records for hazardous waste determinations- Requiring generators to document and maintain waste determinations for solid waste that is found not to be a hazardous waste is outside of the regulatory umbrella of §261.3 and is a very heavy burden to all industries. Therefore we object to this proposal. (0220)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: TCCI agrees that it is not an "undue burden" to maintain waste stream characterization documentation but it is an "undue burden" to be told in the rule which documentation must be maintained for every stream. TCCI understands that this may be EPA's intent as the discussion at 80 FR 57942 - 57943 addresses solid wastes that "clearly have no potential to be a hazardous waste" for which no documentation is needed. Many SQGs have consultants collect samples for analyses and the generator will maintain the final report of analytical results. The generator will not have all of the QA/QC information associated with the analyses and will likely not even have the chain of custody which is not required by the rule. This does not make the documentation any less credible. In addition, laboratories charge significant additional fees to provide the full QA/QC results with each sample.

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Also prosed in Section 262.11(e) requires that: "A small or large quantity generator must maintain records supporting its solid and hazardous waste determinations, including records that identify a material as a solid waste, as defined by 40 CFR 261.2, and records identifying whether that solid waste is or is not also a hazardous waste, as defined by 40 CFR 261.3." Currently, EPA does not require keeping records of either solid waste or hazardous waste determinations.

The proposed process in a research setting will be extremely burdensome and impractical. The proposed process does not enhance environmental health and safety; the current regulation already requires that any person who generates a solid waste must determine whether that waste is a hazardous waste and prescribes the methodology for doing so.For large institutions, there are no practical way to keep records of every applicable solid waste determination made in such a setting. To use an example, if the proposed regulations were implemented in a large institution with 1,000 labs then each lab would be required to make a determination of all the wastes generated, manage the reports and have a representative of each lab trained to make such determinations. This is highly impractical, as it will burden a lab with extra unnecessary procedures. It will potentially lead to waste being disposed of improperly if individuals are not properly trained per each lab for proper waste determination. It will also further burden the oversight of waste disposal as the organization tasked with removing the waste will have to verify, check, and record records for each lab. The current regulations are far more practical as an institution can have a single group within the organization trained and qualified to identify, record, and sort the waste for disposal.

Furthermore, I disagree with EPA's statement on page 57942 of the preamble, which refers to the "minimal costs of requiring SQGs and LQGs to document hazardous waste determinations, including determinations where the solid waste was found not to be a hazardous waste." The cost of documenting waste determinations will includes testing, creating and maintaining a documentation system, as well as identifying and tracking people who would need this training. The costs of required training will exceed the benefits. Moreover, this leads to a bureaucratic nightmare of paperwork. If we were to use the prior example of an institution with 1,000 labs then such an institution would need additional employees to track and record the wastes each lab produces; and could potentially cost such an institution hundreds of thousands in training, salary, and benefits with no measurable environmental benefit. (0227)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Non-Hazardous Waste Determinations and Recordkeeping

Walmart has literally millions of unique consumer products available to be sold in any one of its retail stores across the country. Given this fact, the Retail Sector stands alone from other types of generators. The current RCRA requirements regarding waste determinations for the vast numbers of retail products that are potentially hazardous waste is already a difficult and undue burden placed on the Retail Sector. To compound that problem by adding recordkeeping for non-hazardous waste determinations would be an enormous additional burden on the Retail Sector.

Hazardous Waste Determinations and Recordkeeping

EPA's proposal to require a "record" of hazardous waste determinations is unnecessary and also is unduly burdensome for the Retail Sector, in particular. In addition to requiring generators to compile numerous documents into a record, the Retail Sector would have to maintain these records for millions of consumer products, many of which change year to year. In addition, extending the recordkeeping requirements to the time of facility closure simply compounds the problem. The Retail Sector will effectively be forced to permanently maintain hazardous waste determination "records" for millions of consumer products - the very same consumer products that the American public takes home and eventually discards on a daily basis by the hundreds of millions. There is no discernable reason to place such burdensome new requirements on the Retail Sector. Extending these requirements to CESQGs will only compound the burden on the Retail Sector.

The Retail Sector is uniquely situated compared to the typical industrial generator RCRA was intended to target. Therefore, Walmart suggests that EPA create an appropriate Retail Sector or Consumer Product exemption if EPA moves forward with this or the other new requirements included under the Proposed Rule. (0233)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Regarding the comment that EPA create an appropriate Retail Sector or Consumer Product exemption if EPA moves forward with this or the other new requirements included under the Proposed Rule. This comment is beyond the scope of this rule.
Comment: EPA dismisses as "minimal" the costs of documenting all hazardous and non-hazardous waste determinations. This assumption by EPA is not accurate. The additional costs for making these determinations and managing the additional paper work will take additional man power and analytical costs at all facilities large and small facilities. (0245)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Second, keeping records of solid waste determinations adds immensely to the record keeping burden without providing any tangible improvement in environmental protection or benefits to the generator of the solid waste. Addition of this requirement would also create even greater confusion for the regulatory community -- both generators and regulators alike.

For example, the way the regulatory language is proposed, it could easily result in delegated states requiring generators to keep records on a solid waste determination of typical office waste. The Agency attempts to address the concern about typical office/household waste in the preamble (80 FR 57,944) where it is stated. (0255)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Inmar opposes EPA's proposed new requirement that generators maintain waste determinations for solid waste. This major change from EPA's longstanding practice will impose significant costs on the retail and healthcare sectors, with little, if any, environmental benefit. (0260)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Further, ACA questions EPA's statutory authority to require hazardous waste generators to keep detailed records for wastes determined not to be hazardous; expanding RCRA recordkeeping requirements to include all solid waste determinations is overreaching by EPA. From a practical standpoint, ACA is concerned that this proposed requirement greatly expands recordkeeping requirements since all solid waste determinations would now need to be documented, even though these solid wastes may not be hazardous. ACA seriously questions the necessity of requiring generators to document wastes that are not hazardous since EPA claims that biennial reports indicate that many SQGs and LQGs generate the same waste from year to year; given that statement, EPA would not need additional documentation on solid waste determinations, since the waste streams typically do not change. It is also counter to EPA's initiative to streamline the regulations, reduce regulatory burdens and remove requirements that have minimal value/benefit. ACA recommends that EPA and the states use education and outreach and other non-regulatory methods to reduce misclassification of waste streams. Further, the regulations should clearly include language that would exempt solid wastes which clearly would not be hazardous, such as food waste, paper products etc. from the waste determination and documentation requirements. (0262)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes. Therefore, this commenter does not have to address solid wastes which clearly would not be hazardous, such as food waste, paper products etc. from the waste determination and documentation requirements. Generators shall keep records only for those solid wastes found to be hazardous wastes.
The Agency is also in agreement regarding the recommendation that EPA and the states use education and outreach and other non-regulatory methods to reduce misclassification of waste streams.
Comment: While Virginia Tech understands EPA's intent with this proposal, we believe the requirements are functional and financial burdensome and will have negative effect. (0284)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: We are opposed to the changes listed in Section 262.11(e). It requires all waste generators to document and keep records for waste determinations on ALL solid wastes regardless of if they meet any federal, state, or local definition of regulated waste or not. We believe this simply adds an excessive regulatory burden with no additional environmental protection. This would require a tremendous amount of increased training for all of our campus' staff, faculty, and students about waste definitions and waste determinations. (0285)

Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: In addition, EPA failed to evaluate the cost of computerizing records, subsequent updating of software, training of staff, and maintaining equipment and the space to house the equipment. Further, EPA has not considered replacement expenses as all tools become obsolete over time. EPA's own experience with cost overruns associated with the implementation of the e-manifest is an important reminder of the complications and difficulties associated with both maintaining and computerizing records. And costs will only multiply over time. Some of CKRC's members have operations with over one hundred years of continuous operations. Such a requirement would result in exorbitant records retention costs with no associated environmental benefits. EPA lacks authority to require storage in perpetuity of records once the retention of those records does not meaningfully contribute to the protection of human health and the environment. CKRC is opposed to such a requirement. (0286)

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

Section <IP_ADDRESS> - Waste streams per generator

Comment: The analysis on page 57944 of an average of 17 waste streams per LQG may be somewhat misleading. My 2013 Biennial Report used only 23 Form GM's. However, the stream described as spent non-halogenated solvent actually represented 9 separate waste streams; I didn't do the calculation or the number of items represented by "non-acute lab pack' but, a typical month is in excess of 200. (0097)
Response: As pointed out in preamble, we are aware of sectors such as academic and industrial labs as well as the waste management industry and retail sector where a large number of waste streams are generated. But these large numbers are counterbalanced by other sectors where only 1 to 5 waste streams are generated per generator.
Comment: For example, at a research and development (R&D) facility where prototype products are reformulated for development into marketable products, many slightly different solid wastes are generated in a typical week or month. The people involved in the formulation of these prototypes will have a good understanding of whether the wastes associated with each formulation would potentially be hazardous waste based on the ingredient mix that they are using in each formulation. Most formulations for a specific product will use ingredients within the same family of chemicals, maybe with slightly different percentages or with only one or two different ingredients. If the waste from formulation #1 of a prototype product is not a hazardous waste, it is highly likely that the waste from formulation #100 of that prototype product is not a hazardous waste. Yet based on the rule as proposed, documentation would have to be created for the wastes from each of those formulations.

Similar burdens would result in a laboratory where many experiments occur daily and weekly with slight variations in the materials used. Again, the laboratory personnel will have a good idea which waste streams might contain ingredients that could cause the waste to be hazardous, but there will be many wastes that they generate that they know will not be hazardous simply because of what the waste contains. Yet for each of these laboratory wastes, documentation would have to be created.
At these "batch," "toll" and "innovative" manufacturing plants, it is typical for dozens of products to be produced for a few years, and then no longer produced. It is also typical for each of these products to have several solid waste streams that would require, under the new proposal, waste determination documentation whether each stream is hazardous or nonhazardous. (0113)
Response: The above comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Compatible waste streams would need to be kept separate in order to document the determination rather than combining the waste streams and making the determination at that point. (0135)
Response: The Agency believes this is a point of generation comment. A hazardous waste determination must be made at the point of 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 that may change the properties of the waste such that the RCRA classification of the waste may change.
Comment: Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any benefit in safety or compliance. (0135)
Response: The above comment is no longer relevant.The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: a. Using the Bienniel report to determine number of waste streams/ determinations per generator is misleading.
i. Combining like waste streams on GM forms is allowed and used extensively when completing the report resulting in your estimate on number of waste streams per generator being extremely low. (0154)
Response: The Agency disagrees with the above comment. GM forms must be submitted for every different waste stream generated.
Comment: EPA should not require waste determinations for individual wastewater streams that are comingled in the headworks of a wastewater treatment unit. (See Comment #11). (0219)

Response: The Agency disagrees with the above comment. A hazardous waste determination must be made at the point of 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 that may change the properties of the waste such that the RCRA classification of the waste may change.
Comment: The EPA incorrectly assumes that the majority of SQG's and LQG's generate between one and five hazardous waste streams and that generators who do generate a large amount of waste streams annually computerize their records. (0283)
Response: As pointed out in preamble, we are aware of sectors such as academic and industrial labs as well as the waste management industry and retail sector where a large number of waste streams are generated. But these large numbers are counterbalanced by other sectors where only 1 to 5 waste streams are generated per generator. We also believe from discussions with generators and the waste management industry that many generators with numerous waste streams computerize their records or have contractors that assist them in this effort. However, the Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Section <IP_ADDRESS> - Alternate solutions

Comment: Recommendation: Do not impose new recordkeeping requirements for wastes which clearly have no potential to be hazardous waste or for wastes that are clearly hazardous waste and are being managed as hazardous waste. At most, documentation should be limited to records related to assessment of industrial solid waste streams with the potential to be hazardous that have been determined to be non-hazardous. (0103)
Response: The above comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: Instead, EPA should solicit input from stakeholders on appropriate waste determination recordkeeping requirements and propose a subsequent rulemaking based on outcomes from that dialog. (0106)
Response: At this time, in lieu of requiring non-hazardous waste determination 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.

Comment: CIANJ recommends that the record retention requirements be eliminated for non-hazardous waste and the retention timeframe be limited to 3 years for other hazardous waste determinations. (0120)

Response: The Agency agrees with the above comment. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Similarly, the retention timeframe for waste determinations is limited to 3 years from the date the waste was sent off-site for disposal or for on-site management.

Comment: If EPA adopts a final rule requiring waste determination documentation, EPA should change the language of this rule from "must" to "may." Alternatively, EPA should change this rule to read in pertinent part:
"...These records must comprise a generator's knowledge of the waste and support the generator's determination, as described at 40 CFR 262.11(c) and (d). If the generator relies on any of the following information for its determination, it must include in its records such information: the results of any tests, sampling, or waste analyses; records documenting the tests,..."

Both of these alternative formulations of this rule would make clear that information that was not relevant to the generator's determination need not be documented. (0219)
*Response: The comment is no longer relevant. The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations. Therefore, the Agency believes this comment is no longer applicable. Generators shall keep records only for those solid wastes found to be hazardous wastes.
Comment: Documentation of validity and relevance of analytical test methods (40 CFR §262.11(e))

EPA should delete the proposed language in 40 CFR 262.11(e) requiring that the documentation "demonstrate the validity and relevance of such tests." For tests methods that are required under the regulations, there should be no need to document the validity or relevance of the test since that was done by EPA when it adopted those required tests. For other tests that the generator relies upon, such as a DOT explosive hazardous materials test to determine if a waste is D003 reactive, most generators will not have the technical expertise in analytical chemistry to "demonstrate the validity and relevance" of the test. Rather, the generator would have consulted a commercial laboratory and obtained a recommendation on what test to employ. Asking a generator to document the technical reasons for the recommendation asks for more information than a typical generator can reasonably provide, and is unnecessary and burdensome. (0219)
Response: The Agency agrees with the comment that there is no need for generators to document the validity or relevance of tests identified by EPA when it adopted those required tests. However, the Agency disagrees with the comment that EPA should delete the proposed language in 40 CFR 262.11(e) (actually (f)) requiring documentation that demonstrates the validity and relevance of tests other than tests not specified in subpart C of 40 CFR part 261.
As we point out in preamble, most generators use knowledge of the process and associated chemical feedstocks in making a waste determination, but situations may exist where testing is necessary. Obviously the generator should use an EPA test if at all possible because an EPA or state inspector will have an understanding of the analytical test and its relevance and validity to the waste in question. But for an alternative test, and without any supporting documentation, how is an EPA or state inspector to know anything about the test's relevance and validity? Questions that arise include: Why did the generator choose this test? How is the test similar to or different than the EPA test? How valid is the test and test results and what basis was used to choose that test? Most importantly, what are the test results?
What becomes clear is that without such documentation, the implementation and enforceability of a generator using an alternative test to support its waste determination becomes impractical for all intent and purpose. Basically, EPA or the state inspector must either accept the results of the test blindly (which he/she cannot do) whether the waste is found to be hazardous or not, take a grab sample and conduct an independent test and analysis, or cite the generator for failing to make an accurate hazardous waste determination based on the responses he receives once he completes a series of questions about what the generator did and why.
What also becomes clear is that if a generator chooses an alternative test to make a hazardous waste determination, it will have to have some expertise in analytical testing and analysis. Otherwise, the generator may be cited for a violation should an inspector pose questions similar to the above without an adequate response.
Comment: The proposed waste determination documentation language also needs to recognize important documentation exceptions that EPA has in its existing rules, and most of which, it acknowledges in this preamble. These exceptions are underlined below. Thus, if EPA adopts a waste determination documentation requirement in the final rule, it should state:

"(e) Recordkeeping for Small and Large Quantity Generators. A small or large quantity generator must maintain records supporting its determination that a solid waste, as defined by 40 CFR §261.2, is a hazardous waste, as defined by 40 CFR §261.3, except that the documentation is not required for:
1. a hazardous secondary material that is excluded from regulation as a solid waste;
2. a solid waste that does not have the potential to be a hazardous waste, such as food waste, restroom waste, paper products, and similar materials;
3. a solid waste that is excluded or exempted from regulation as a hazardous waste; and
4. a hazardous waste that is otherwise exempt from the requirement to make a hazardous waste determination and/or to document such determination.
Records must be maintained for at least three years from the date that the waste was last generated. . ." (0219)

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

Introduction
As part of the Hazardous Waste Generator Improvements Rule, the Agency proposed that solid and hazardous waste determinations must be accurate. EPA believes that waste determinations are of utmost importance to the success of the program and warrant this emphasis regarding accuracy. Accurate determinations ensure that each waste stream generated will be properly managed, will protect workers by making the company and the worker(s) aware of the dangers of the waste(s) being managed, and will ultimately lead to an accurate generator status determination.

Summary of comments
Eight commenters support the requirement that hazardous waste determinations must be accurate. (0085, 0106, 0132, 0160, 0188, 0195, 0217, 0232)
Eleven commenters did not believe the term "accurate" should be incorporated in the regulation as it implies that other requirements do not need to be done accurately. (0089, 0097, 0123, 0126, 0168, 0188, 0200, 0201, 0219, 0232, 0262)
Eight commenters recommended the Agency clarify "accurate" as is it applies to waste determinations. (0097, 0120, 0126, 0127, 0132, 0168, 0219, 0255)
One commenter recommended the Agency replace "accurate" with "sufficient." (0232)

For the proposal
Comment: Regarding revisions to the hazardous waste determinations section 262.11  -  Section VIII.B.1-3., pages 57935-57939: Colorado agrees with the seven proposed changes to the hazardous waste determinations section and especially supports the specific requirement that hazardous waste determinations must be accurate. Colorado wholeheartedly agrees with the proposal to add language into section 262.11 to emphasize that a generator who generates a solid waste must accurately determine if that waste is a hazardous waste. Colorado has cited to this provision over the years with the assumption that accuracy was implicit, but having it explicitly stated makes the regulation easier to cite when a generator has actually made a hazardous waste determination, but was wrong. (0085)
Comment: REGFORM acknowledges the importance of making accurate hazardous waste determinations, that inaccurate determinations will likely lead to enforcement action against a facility, and that existing regulations already require facilities to maintain certain waste determination records such as laboratory test results. (0106)
Comment: Updating the waste determination regulations to better describe what information is necessary to make accurate hazardous waste determinations. Accurate waste determinations are required to ensure that each waste stream generated by a company is properly managed. Additionally, accurate waste determines protects 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 led to an accurate generator status determination. (0160)
Comment: SD supports clarifying regulatory language regarding making thorough waste determinations. The proposed language in §262.11 basically defines the term "accurate", used in the first paragraph, by outlining the steps a generator needs to take to make a proper waste determination. These steps essentially summarize the methods generators currently are supposed to take without adding additional requirements. This should provide clarity for the regulated community. (0195)
Response: The Agency agrees with the above comments.
Comment: As stated by EPA, at the core of the RCRA hazardous waste program is the need for generators to make an accurate hazardous waste determination. EPA also quoted a 1993 Federal Register (FR) notice and stated the notice points out that while using process of knowledge is "seemingly attractive because of the potential savings associated with using existing information, the facility must ensure that this information accurately characterizes applicable wastes." Therefore, the States support adding this language that requires waste determinations to be accurate. The States believe this single word provides more of a framework for ensuring and enforcing correct determinations and the proper management of the waste. (0217)
Response: The Agency agrees with the above comments and need to emphasize that waste determinations must be accurate.

Comment: Specifically Stating That the Hazardous Waste Determination Must Be Accurate
The MPCA concurs with the expressed intent of the EPA to attempt to ensure that waste generators perform due diligence in making an accurate waste determination, however the MPCA believes that revised terms would be more appropriate and helpful.The EPA focuses on the word `accurate', which may be interpreted to apply to an entire evaluation, or, though apparently not EPA's envisioned meaning, just as correctly to any of the information used in an evaluation. Under that meaning, an evaluation might be considered to be `accurate' if based on all correct information, yet still incorrectly determine hazardous waste to be unregulated if insufficient or incomplete information is gathered. As an example, if a product containing 0.01% silver as a preservative or antibacterial ingredient were evaluated using a Safety Data Sheet (SDS) prepared according to OSHA standards, that silver content would not be required to be annotated in the SDS, and though all the information in the SDS is accurate, a generator could reach an incorrect conclusion that waste generated from use of the product was unregulated, though all information relied upon in their evaluation was `accurate'. The term `accurate' also does not provide any meaning towards how intensive or deep a generator's research must be to meet the intended standard. A 5-minute review of an SDS and product brochure may well be `accurate' but much too superficial to ensure that the generator has considered all potentially hazardous attributes of the waste.

Therefore, the MPCA recommends replacement of the term `accurate' with `sufficient'. The MPCA has consistently used this term in guidance materials and enforcement actions at least since 2002, and believes it properly focuses on the reasonability of the depth and thoroughness of the generator's evaluation. (0232)
Response: The commenter above raises good points but we still must disagree. Use of the term "accurate" reflects the Agency's intent that it's the results of the determination that matters such that the waste is managed safely and properly. Substituting the term "sufficient" is also subjective with no guarantee that the result will be an accurate hazardous waste determination.
Comment: The MPCA concurs with the expressed intent of the EPA to attempt to ensure that waste generators perform due diligence in making an accurate waste determination, however the MPCA believes that revised terms would be more appropriate and helpful. The EPA focuses on the word `accurate', which may be interpreted to apply to an entire evaluation, or, though apparently not EPA's envisioned meaning, just as correctly to any of the information used in an evaluation. Under that meaning, an evaluation might be considered to be `accurate' if based on all correct information, yet still incorrectly determine hazardous waste to be unregulated if insufficient or incomplete information is gathered.
Therefore, the MPCA recommends replacement of the term `accurate' with `sufficient'. The MPCA has consistently used this term in guidance materials and enforcement actions at least since 2002, and believes it properly focuses on the reasonability of the depth and thoroughness of the generator's evaluation. (0281)

Response: The commenter above raises good points but we still must disagree. Use of the term "accurate" reflects the Agency's intent that it's the results of the determination that matters such that the waste is managed safely and properly. Substituting the term "sufficient" is also subjective with no guarantee that the result will be an accurate hazardous waste determination.

Neither For or Against Proposal
Comment: In the preamble, EPA notes that it has some concerns about situations in which a generator applies due diligence but still makes an incorrect hazardous waste determination. EPA specifically requests comments on why it may not be feasible to require accurate determinations and how to clarify a generator's responsibility. Even when a diligent effort is made to accurately characterize a waste, it is possible for the determination to be inaccurate. Diligent efforts already account for reasonably anticipated variation in routine waste generation. However, a raw user (or supplier) might not know if material were delivered with an inadvertent contaminant, which could potentially result in a waste that was not accurately described despite best efforts.

The only option available to the generator to ensure complete accuracy would be to test every drum or container of routine wastes to assure that no error could have been made (and that presumes the laboratory analytical data were infallible). This would not be a cost-effective approach. Rather than requiring measures to eliminate any possibility of inaccuracy, it seems that the intent of the accurate determination would best be met by performing and documenting diligent efforts to characterize and describe waste streams, taking into account reasonable variations, process upsets, and other factors. (0257)
Response: The Agency agrees with the comments above that performing and documenting diligent efforts to characterize and describe the waste streams they have generated, taking into account reasonable variations, process upsets, and other factors will help in making an accurate waste determination. Most generators use knowledge of their chemicals and processes to make a hazardous waste determination but situations may occur where testing of their wastes is necessary. This may occur when the generator is unsure of what they have generated, there is too much variability in the chemicals used and wastes generated. There is no "one size fits all" answer to the challenges faced by generators in making hazardous waste determinations but the more effort and due diligence they put into this effort, the higher the probability that their waste determination will be accurate.

Against the proposal
Comment: In several locations throughout the proposed changes in the regulations, the EPA is proposing to add the term 'accurately' when evaluating hazardous waste. Adding the term 'accurately' is redundant and implies other requirements do not need to be done accurately; if an organization needs to make a determination it need not be stated that the determination is accurate. In addition, on forms such as the biennial report, and other documents, a responsible person must certify that the information is accurate to the best of their knowledge. I would request that the changes to add the term 'accurately' not be incorporated in the regulation. (0089)

Comment: To a great extent the addition of the adjective is unnecessary and possibly redundant. Why make a waste determination at all if there is not a degree of validity attached. If an entity is found to deliberately falsify a waste determination, the word "accurate" is hardly needed to assess a penalty.

On the other hand, this opens the question of how accurate is accurate enough? Is generator knowledge sufficient? Is a TCLP required? If this word is interjected a generator would be ill-advised to follow the example touted in the preamble which assigns a waste code. (0097)
Comment: More importantly, the proposed rule does not articulate how the retention of documentation will improve generators' ability to make accurate waste evaluation decisions. The concerns articulated in the preamble to the Proposed Rule revolve around confusion over the waste determination criteria, not over what information informs that determination. Indeed, stakeholders have raised these concerns over many years. If the Agency seeks to improve the accuracy of waste determinations, it should focus on clarifying the waste determination process. (0107)

Comment: This would be contrary to the Agency's position that waste determinations be accurate.(0121)
Comment: WRPS is not in favor of the proposed change regarding the need for hazardous waste determinations to be accurate, as there would be little added benefit from this change and it could cause confusion. While the preamble language indicates that a generator can declare a waste as hazardous waste when it really is not, the regulatory text does not include that language. And, there is little defense of conservative designations or over-designations. Not all waste (e.g. debris) is amenable to sampling. There are times when it is not possible, practical, or cost effective to sample the interior of equipment/debris that becomes waste. Therefore the generator might not be able to make an accurate designation and might be left with making a conservative process-knowledge-driven designation, even if it results in higher waste management costs. This situation could be interpreted as not complying with this regulation.

WRPS requests clarification on the meaning of "due diligence," as used in the proposed change regarding the need for hazardous waste determinations to be accurate. WRPS is not in favor of the portion of this proposed text that states, "must make an accurate determination of whether that waste is a hazardous waste," for the same reason as stated above with regard to preamble text on page 57945. (0123)

Response: One 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 § 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 § 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 § 262.11 continues to allow this practice.

With respect to a generator applying or using "due diligence, the Agency expects generators to establish processes and procedures that enable them to determine why their materials are hazardous or not.
Comment: We believe that the Agency should consider further defining "accurately" as it relates to the proper waste determination as discussed in the preamble FR pg 57936 B. Waste Determination (40 CFR 262.11 clear at the very beginning of 262.11 that the hazardous waste determination ." This is also addressed in other sections of the preamble letter as well. (0127)

Response: The Agency agrees with this commenter and has modified the regulatory text 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.

Comment: HWI comment: We agree that solid waste should be determined if it is a hazardous waste. However, without a definition for "accurately," we suggest removing this word. This is very ambiguous and subjective and could lead to unintended enforcement actions. (0132)

Response: The Agency disagrees with the above comment. 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." (Comment by individual consumer. Docket number: EPA-HQ-RCRA-2012-0121-0160 )

Comment: EPA's Proposed Requirement of "Accuracy" Is Unnecessary, Impermissibly Vague, and Potentially Environmentally Counterproductive

EPA has proposed to require that generator determinations of whether a waste is hazardous or non-hazardous must be "accurate." See 80 Fed. Reg. at 57,992 (proposed to be codified at 40 C.F.R. § 262.11). The purpose of this requirement, according to the Agency, is "to emphasize and make clear" that these determinations must be accurate. Id. at 57,945.

This proposal is utterly unnecessary. EPA cannot possibly think that the existing rules are ambiguous about whether it is acceptable to misclassify a hazardous waste as non-hazardous, or that there is any lack of awareness of this fact in the regulated community. A generator who misclassifies a waste in this manner and handles the waste accordingly will necessarily be in noncompliance with a host of regulatory requirements, such as those related to hazardous waste labeling/marking, storage, personnel training, contingency planning, manifesting, and recordkeeping. (Under EPA's theory (see Section 5.3 below) that virtually any noncompliance turns generators into TSDFs, the generator would also be in violation of the RCRA permitting requirement and associated requirements, such as financial responsibility.) As EPA has long acknowledged, such "liability for incorrect determinations" is an obvious and powerful incentive for generators to make sure they are not misclassifying hazardous wastes as non-hazardous. See, e.g., 55 Fed. Reg. at 11,830. The proposed "accuracy" requirement would, at most, enable EPA to pile one more allegation of noncompliance on top of countless others, against a generator making such a misclassification. It is difficult to imagine that this would meaningfully increase the incentive not to make this type of error.

Moreover, the proposed requirement is not as simple and innocuous as it may at first appear. The proposed rule does not define "accurate," which could create significant problems. Arguably, a waste determination would not be accurate if it results in a non-hazardous waste being classified as hazardous, or if it results in a hazardous waste being assigned an extra hazardous waste code that does not actually apply. In the preamble to the proposal, EPA seems not to be concerned about the first type of over-classification, saying "[t]he generator is always free to manage its [non-hazardous] solid waste as a hazardous waste if it so desires." See 80 Fed. Reg. at 57,945. However, the Agency says that the second type of over-classification "does not satisfy the requirement to make an accurate waste determination." Id. These statements seem inconsistent, given that over-classification of a non-hazardous waste as a hazardous waste necessarily requires assignment of one or more hazardous waste codes that do not actually apply.

Furthermore, it is unclear why either type of over-classification should be a concern to EPA, since both would presumably result in the wastes being handled in a more protective manner. Indeed, in several other contexts  -  including the companion proposal on hazardous waste pharmaceuticals  -  EPA actively encourages generators to handle non-hazardous wastes in accordance with the requirements for hazardous wastes. See, e.g., 80 Fed. Reg. at 58,029 ("a healthcare facility may choose to manage its ... non-hazardous waste pharmaceuticals as hazardous wastes under this [proposal]"); 60 Fed. Reg. 25,492, 25,513 (May 11, 1995) (noting that one of the benefits of the universal waste rule is that it "eliminated [the need for] identifying, documenting, and keeping separate regulated and unregulated waste," and "encourag[ing] persons to manage both regulated waste and unregulated waste in the same collection systems ... [a]s long as all commingled waste is managed in a system that meets the requirements of the universal waste regulations"). The proposed requirement for accuracy could prevent such practices, with significant adverse effects on the environment. (0168)

Response: The Agency disagrees with the comment emphasizing that a waste determination be accurate is unnecessary, impermissibly vague, and potentially environmentally counterproductive. EPA believes that waste determinations are of utmost importance to the success of the RCRA program 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." (Comment by individual consumer. Docket number: EPA-HQ-RCRA-2012-0121-0160)

Regarding the comment that the Agency did not define the term "accurate", the Agency believes it is unnecessary because there is a common understanding of the meaning of this word. Similarly, regarding the comments associated with over-classifying solid wastes as hazardous wastes when it may not be the case, the Agency has said that "over managing" the wasteis acceptable and meets the requirements in § 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 § 262.11 continues to allow this practice. Regarding identifying the applicable RCRA codes, the generator will either have to its best to identify the most appropriate waste codes, or when sending the waste off-site, manage the waste as non-hazardous if it so chooses. In other words, the generator has a choice of managing the non-hazardous waste as hazardous throughout its life-cycle, or stop when its time to ship the waste off-site to a RCRA permitted TSDF.

Regarding the comment, "Furthermore, it is unclear why either type of over-classification should be a concern to EPA, since both would presumably result in the wastes being handled in a more it is not a concern. Similarly, the comment, "The proposed requirement for accuracy could prevent such practices, with significant adverse effects on the environment protective manner" is unclear to the Agency since the practice of over-managing non-hazardous waste as hazardous waste has been in existence for years and EPA's final language in § 262.11 continues to allow this practice.
Comment: EPA Should Allow Retailers to Make and Record Hazardous Waste Determinations Based on Information Provided by Product Manufacturers or Third-Party Services with Access to Proprietary Manufacturer Data

In its discussion of the proposed "accuracy" requirement, EPA acknowledges that "[g]enerators often rely on a third party ... to help them make a hazardous waste determination," but cautions that in these cases "the generator should still apply its due diligence to ensure a solid waste is not a hazardous waste, and if a hazardous waste, that it is characterized accurately." See 80 Fed. Reg. at 57,945. While this requirement of additional due diligence may make sense in the context of manufacturers who generate solid wastes, it places an impossible burden on retailers whose unsold or returned products may in some cases qualify as solid wastes.

Retailers commonly carry tens of thousands of products, and they have only limited information about such products, in part because some of the relevant information is proprietary. As a result, if the information provided to a retailer by the manufacturer (or by a third-party service that has access to proprietary information that the retailer is not privy to) does not include any indication that a product is hazardous, or indicates that it is hazardous only under certain waste codes, there is no further due diligence that the retailer can reasonably be expected to conduct. Moreover, in these instances, the retailers will not be able to assemble a full dossier on each waste, as EPA envisions under its proposal, except for the information provided by the manufacturer (or third-party service).

We ask EPA to explicitly allow retailers to make and record hazardous waste determinations in these ways, so that it is clear that they do not have to engage in additional due diligence for tens of thousands of products without the information/tools that would be necessary for such due diligence. (0168)
Response: Generators are responsible for making accurate hazardous waste determinations. This activity may include relying on information provided by product manufacturers or third-party services with access to proprietary manufacturer data.
Comment: EPA states in the NPRM that "[t]he primary obligation for generators is to accurately determine whether or not a solid waste is a hazardous waste." We agree with this observation. The agency, however, includes "accuracy" as an affirmative requirement in the proposed rules. EPA explains, that "at the core of the RCRA hazardous waste program is the need for generators to make an accurate hazardous waste determination. Therefore, to emphasize this point the Agency is modifying the regulatory text at 40 CFR 262.11 to emphasize and make clear that a generator who generates a solid waste, as defined in 40 CFR 261.2, must accurately determine if that waste is a hazardous waste."

We are not entirely sure why EPA feels it necessary to emphasize "accuracy" in this way. Even under existing rules, the failure to properly (i.e., "accurately") classify a waste as hazardous will result in a RCRA violation. The inclusion of a separate "accuracy" requirement adds nothing except, possibly, to provide an additional citable provision. More importantly, however, the provision could be used to cite a generator who mischaracterizes a non-hazardous waste as hazardous. Despite there being no resultant negative environmental impact, the generator would nevertheless have failed to "accurately" characterize its waste. While we cannot imagine that this is EPA's intent, it nevertheless is a potential outcome. IME opposes EPA's proposed use of the term. (0188)
Response: EPA believes that waste determinations are of utmost importance to the success of the RCRA program and warrant this emphasis regarding accuracy. Similarly, one 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 § 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 wasteis acceptable and meets the requirements in § 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 § 262.11 continues to allow this practice.

Comment: Furthermore, the proposed continual obligation to perform a waste determination after the initial generation creates additional problems for accuracy. If, as EPA points out, the wastes may "change" properties after the initial generation, then how are companies going to ensure that each day they have an "accurate" waste determination? Will companies be required to sample and analyze each day?EPA has taken the position that it can use "grab" samples for enforcement purposes, so will any "change" that might be detected in a grab sample at one point in time be sufficient to overcome even daily samples that attempt to monitor for any possible changes? Again, EPA's proposal imposes additional, unnecessary costs to the generator and creates more compliance problems than the limited ones it seeks to solve with these overarching revisions.
Response: Generators have an obligation to be aware of the properties of their wastes, including the possibility that a non-hazardous waste determination at the point of generation may change classification while being accumulated on-site because the properties of the waste changed. The Agency does not expect generators to monitor its waste hour by hour or day by day as much as to understand what type of wastes they are dealing with and monitor its waste characterization accordingly. This is particularly the case when a generator classified its waste as non-hazardous yet subsequent management by a waste management facility found the waste to be hazardous. That finding should cause the generator to monitor more closely what type of waste it is handling.

Comment: Finally, technically, the issue of "accuracy" should only be a concern when a generator might misidentify a "hazardous waste" as a "solid waste" (not the other way around). The specificity or accuracy of a determination for a material that, at most, qualifies as a "solid waste" is irrelevant to the overarching goals of RCRA Subtitle C, and certainly should not become an agency enforcement focus. This is important given that EPA does not have authority to regulate non-hazardous wastes under Subtitle C. Yet, the proposed revisions do just that by imposing the accuracy requirement and the ongoing monitoring obligation on both hazardous and non-hazardous wastes. (0200)
Response: As stated above, even if the waste may not be hazardous, "over managing" the wasteis acceptable and meets the requirements in § 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 § 262.11 continues to allow this practice.
Comment: ..... EPA's proposal to clarify that a waste determination must be "accurate" and that a generator has an obligation to make determinations at points throughout the management of a waste or waste stream where the hazardous/non-hazardous status of the waste changes causes more confusion than clarity. As written in the current version of Section 262.11, the first sentence sufficiently conveys that a determination regarding hazardous waste has to be "accurate." Adding the word "accurate" does not provide additional clarity. Generator's use process knowledge and laboratory testing and documentation to determine the classification of wastes. EPA's insertion of the word "accurate" in the Section 262.11 implies that more is needed. However, process knowledge and laboratory support and documentation should be sufficient without creating an extra undefined, quantitative hurdle for proving "accuracy." (0200)

Response: EPA believes that waste determinations are of utmost importance to the success of the RCRA program and warrant an emphasis regarding accuracy. The Agency disagrees with the comment that requiring generators to make an accurate hazardous waste determination will cause more confusion than clarity. By emphasizing this term, the Agency believes generators will further understand that they need to establish those processes and procedures that will result in making the correct waste determination. Inserting this term may implythat more is needed, but is predicated on the processes and procedures a generator currently uses and whether improvements are necessary to ensure an accurate hazardous waste determination is made. The Agency does not disagree that process knowledge and laboratory support and documentation should be sufficient in making an accurate hazardous waste determination. There is no "extra undefined, quantitative hurdle for proving `accuracy' " as much as a generator having those processes in place, whether use of knowledge or testing to support its determination.
Comment: While accurately determining whether a waste is or is not hazardous is a fundamental aspect of RCRA, there is no need to specifically require an accurate determination. Generators that have inaccurately determined that a hazardous waste is non-hazardous would be cited for violations for failing to properly manage and dispose of hazardous waste. Thus, there is already a strong incentive for generators to accurately perform hazardous waste determinations. The proposed additional requirement would only further penalize many generators by piling on additional violations, even if the generator applied due diligence in its incorrect determination that a hazardous waste is non-hazardous. In addition, although the preamble states the intent of the proposed change would not impact determinations that a non-hazardous solid waste is a hazardous waste, a generator making such a determination would be in violation of the plain language of the proposed regulation. (0201)
Response: The Agency disagrees with the above comments. EPA believes that waste determinations are of utmost importance to the success of the RCRA program and warrant an emphasis regarding generators making accurate determinations. Similarly, even if the waste may not be hazardous, "over managing" the waste is acceptable and meets the requirements in § 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 § 262.11 continues to allow this practice.
Comment: EPA requests comment on why it may not be feasible to require a generator's solid and hazardous waste determinations to be accurate. Several issues come to mind with respect to this.
o With respect to a solid waste determination, a parts washer service company entered many markets and obtained customers using a business plan where spent parts washing solvent would be directly re-used as a substitute for a commercial chemical product. Customers who thought their waste was going for direct re-use thought their waste was excluded from regulation and did not count towards their generator statue. These customers would sign certifications that their spent solvent was not hazardous waste, and that they were conditionally exempt small quantity generators. Once the company had these certifications on file, the spent parts washing solvent could be recycled in a different manner, either by reclamation or as fuel, and this could be done without telling the customer that they were not longer eligible for the exclusion.
o Because so many exclusions from the definition of solid or hazardous waste are conditional, the disposal and recycling facility should have a reciprocal requirement to guarantee their method of management to their customers, and should have an obligation to inform their customers of any change that could cause the customer's waste to lose the exclusion. (0214)
Response: Generators have a responsibility to perform due diligence and understand as best they can what will happen to their spent solvents when the recycling facility picks up their materials. Part of that due diligence involves asking the right questions, or stated differently, trust but verify. One solution may be for the generator to have the recycling company certify that their spent parts washer solvents will be recycled in a manner that meets the applicable definition of solid waste exclusions. That way, the onus is completely on the recycling company.
Conversely, the recycling company has an obligation to be forthcoming and tell their customers what they intend to do to guarantee their customers are in compliance with the applicable recycling regulations. They also may want to think about some type of certification to protect their customers.

Comment: Chemical manufacturers are not required to disclose the presence of hazardous constituents in their products at levels that exceed TCLP or 268.48 limits. SDSs allow "trade secret" claims, and limit the notification requirements for constituents present at less than 1%, or 0.1% for carcinogens. (0214)
Response: This means that as a practical matter, (M)SDSs are most useful for making positive, rather than negative hazardous waste determinations. That is, SDSs can indicate the presence of TC constituents in a chemical product that becomes part of a waste, but do not provide detailed enough information to be the basis for concluding that TC constituents are not present at levels that may exceed the TC regulatory values. This is because for many wastes, TC constituents present at 1% or 0.1% concentrations could still leach in excess of the TC regulatory values.
Comment: Detection limits can be an issue for concentrated wastes due to matrix interference. If a constituent is not detected in a waste, but the detection limit is orders of magnitude higher than the regulatory limit, how should that be dealt with? (0214)
Response: The results of such a test would not support a conclusion that the waste is not TC hazardous. Testing must have detection limits at or very close to the TC regulatory value. In cases where this is not possible for technical reasons, the generator would need to make a hazardous waste determination based on his/her knowledge of the waste, and they state or EPA would need to evaluate the determination. Information in addition to test results above the detection limits would usually need to be included in such a determination. Further, the Agency would need to agree that the test results represent the limits of technical feasibility for testing the particular waste.
Comment: Equally, if a sample is analyzed, but quality assurance documentation is lacking or shows that the sample was not collected or preserved properly, or analyzed within holding times, how should that be dealt with? The generator often will not know that their lab cut corners. Several recent examples:
-- A testing laboratory split a sample collected for a TCLP determination, and sent the aliquot intended for zero head space extraction and VOC analysis to another lab, violating SW-846 method protocol.
-- Another testing laboratory extracted samples that were too small, and did not correctly perform the liquid/solid separation step. Instead, both the liquid and solid portion of the waste were placed in the extraction vessel, diluting the liquid fraction improperly.
-- SW-846 should include specific guidance for sampling wastes when both bottle and zero headspace extractions will be performed. TSDF sales staff in particular tend to collect samples in a manner that does not comply with standard QA/QC requirements. Suggest that EPA publish a video (possibly through you tube?) showing generators and inspectors how TCLP extractions and analyses are performed. (0214)
Response: Generators are responsible for determining whether their waste is RCRA hazardous, and further, that determinations are accurate. Part of their obligation in making this determination is to ensure that their conclusions are based on reliable test data and/or other reliable information. For laboratory testing, especially in a compliance context, adherence to the test protocol, including all QA/QC requirements, is critical to ensuring generation of reliable data. Data generated by non-compliant testing cannot be a reliable basis for making the required hazardous waste determination (the agency has said that TCLP and other regulatory testing can provide definitive results only when the tests are performed properly). In some cases, re-testing may be necessary. In other cases, it may be possible to understand what bias may have been introduced by non-compliance with the protocol, and some qualified conclusions may be supportable, but this would occur strictly on a case-by-case basis.
Generators who identify such performance problems should obviously contract with another lab for any needed re-testing.
If no waste sample remains for re-testing, the generator will need to make the best supported determination possible. In doing so, they must rely on whatever other information about the waste they have that can be shown to be reliable, including-but not limited to- past testing of the waste stream for which compliant testing can be well documented. Process knowledge and other kinds of relevant information, as described at should also be considered.
Finally, the Agency notes that updated testing guidance for TSDFs has been published recently. Further, when genuine questions about the appropriate implementation of tests may arise (which the Agency expects to occur only rarely), such questions can be addressed to state environmental agency laboratories, or EPA regional or headquarters analytical chemists for advice on the most appropriate manner for proceeding.
Comment: Specifically Stating That the Hazardous Waste Determination Must Be Accurate
The EPA requests comment on the reasons why it may not be feasible to require a generator's solid and hazardous waste determinations to be accurate and how best the Agency can make clear that generators are responsible for making an accurate hazardous waste determination. At present time there is no comprehensible means for the EPA to reasonably expect every generator to correctly complete every hazardous waste determination. Reorganization of the hazardous waste generator regulatory program to make it user-friendly is a small start but it will be no where near enough to see positive change. The Agency needs to invest time and money into educating the regulated community on the hazardous waste generator program. (0230)
Response: While the goal is for every generator to make an accurate determination for every waste stream they generate, we also realize the many challenges in achieving that goal. The Agency agrees with the comments above that new and innovative ideas are necessary so that we and the states can educate generators in making better, more accurate hazardous waste determinations.
Comment: CRWI has concerns about the requirement in the opening paragraph of 262.11 that a generator must make "an accurate determination of whether that waste is a hazardous waste..." Our concern is with the use of the word "accurate." This word means the quality or state of being correct or precise. In scientific and engineering terms, it is a measure of the degree to which the results conform to the correct value, and implies there is some measure of a statistical determination of accuracy. We do not believe that this is what the Agency intended. In addition, if the facility chooses to handle a non-hazardous solid waste as a hazardous waste, that determination is not "accurate." While it is still protective of the environment (per EPA's expressed concern 80 FR 57,945), it is not accurate. While it is unlikely that a regulatory authority would cite a facility for over protecting the environment, we believe the use of the word "accurate" is not appropriate in this circumstance. We suggest the following modification of the proposed regulatory language in 262.11.

A person who generates a solid waste, as defined in 40 CFR 261.2, must make an accurate determination of whether that waste is a hazardous waste using the following steps: (0255)
Response: Based on the above comments and others we have modified the regulatory text to incorporate why a hazardous waste determination must be accurate. Similarly, even if the waste may not be hazardous, "over managing" the waste is acceptable and meets the requirements in § 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 § 262.11 continues to allow this practice.

Section <IP_ADDRESS> - Maintaining hazardous waste determination records until generator closes

Introduction
As part of the proposed rule, EPA requested comment on maintaining waste determination records until closure of the facility rather than the current three years after the shipment of the waste. EPA asked for comment because the time period between inspections can often exceed three years, hence inspectors may not be able to review and examine the documentation for a particular waste determination.
Based on the comments received, the Agency is not changing the time period that hazardous waste determination records must be maintained. Commenters were practically unanimous in opposing the extension. They believe expanding the requirement to the life of the facility exceeds the statute of limitations, and is unnecessary, unwarranted, and unduly burdensome. (0077, 0078, 0085, 0091, 0092, 0093, 0107, 0110, 0113, 0117, 0121, 0123, 0128, 0129, 0131, 0135, 0139, 0141, 0142, 0149, 0152, 0154, 0155, 0159, 0166, 0167, 0168, 0182, 0183, 0188, 0190, 0192, 0195, 0200, 0201, 0205, 0208, 0212, 0214, 0217, 0219, 0220, 0224, 0225, 0226, 0228, 0232, 0235, 0255, 0256, 0257, 0258, 0260, 0262, 0283, 0285, 0286).
In response to all of the specific comments described below that opposed the proposed extension of time period, EPA provides the same response which is: EPA is not moving forward with this change, and thus is not changing the time period that hazardous waste determination records must be maintained. EPA provides a specific response below only to those comments that addressed a different aspect of the proposed rule other than opposition to the extension.
Comment: If EPA adopts this revision, SQGs and LQGs could also be required to maintain these solid and hazardous waste determination records many years beyond any applicable statute of limitations. Because no enforcement actions can be brought after the statute of limitations has run, there is no legitimate justification to require a SQG or LQG to keep records beyond that limit and EPA should not expand the recordkeeping retention requirement in such a manner. (0077)
Comment: However, the length of operation of the generator's "site" is likely to far exceed the length of the process that produces any given hazardous waste stream simply due to technological innovation and normal variation in raw material inputs. Further, with the requirement of the land disposal restrictions to treat most hazardous wastes prior to land disposal of residues, records for designation of long-disposed wastes are likely of dubious value in most cases. (0078)
Comment: Colorado has a two year statute of limitations in which to take an action and a five year statute of limitations from when the event occurred, regardless of when we discovered the violation - whichever occurs sooner. Therefore requiring generators to maintain documentation for an old waste stream seems unnecessary and overly burdensome. Colorado recommends retaining the three year retention period from the date the waste was last shipped off-site. CDPHE recommends requiring the same hazardous waste determination documentation requirements for CESQGs as for LQGs and SQGs. A majority of the hazardous waste determination violations are discovered at CESQGs; this new requirement could greatly increase compliance within this sector. (0085)
Response: The Agency is not prepared to require CESQGs/VSQGs to document and keep records of their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made.
Comment: First, AEF believes that Generators cannot adequately comment on the myriad of issues caused by the idea without regulatory text. Secondly, maintaining records are costly. EPA failed to name any reason that a generator would want to maintain records of its solid and hazardous waste determinations to support or respond to any future questions. Similarly, the Agency failed to evaluate the cost of computerizing records, subsequent updating of software, training of staff, and maintaining equipment and the space to house the equipment. Also, beyond initial costs, EPA needs to consider replacement expense, all tools becoming obsolete over time. The agency itself experienced cost overruns while implementing e-manifests, which should remind EPA how complicated and difficult it is to maintain or computerize records. Additionally, these costs will multiply as time elapses. Some of AEF's members have operations with over one hundred years of continuous operations, showing significant records retention costs, with no environmental benefit. EPA lacks authority to require storage in perpetuity of records that at some point provide no environmental benefit. (0087)
Comment: EPA has not demonstrated any significant reason for imposing such a requirement, especially considering that any time a facility determines a waste is hazardous or does not know whether the waste is hazardous or not, that facility must otherwise necessarily comply with the requirements of RCRA. Moreover, if a facility determines the waste is not hazardous but is incorrect, that facility will be in violation of RCRA requirements for the waste beginning at its point of generation. EPA also discounts a generator's knowledge of the constituents of the waste generated, a fundamental principle of the RCRA generator regulations. Therefore, USWAG strongly believes that additional recordkeeping requirements for facilities with hazardous materials determinations are unnecessary in light of the otherwise applicable provisions of RCRA.
EPA's suggestion to require maintenance of documents detailing these determinations on site for the duration of the facility's life is unwieldy and unnecessary, especially when the waste in question is determined to be non-hazardous (0093)
Comment: The Agency's alternative option to require retention of such documentation until generator closure (rather than the proposed three years) would further exacerbate the burden on generators. See 80 Fed. Reg. at 57,945. A provision that lengthens the recordkeeping burden well past the statute of limitations (federal or state) provides little additional benefit to offset the significant burden. (0107)
Comment: Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0110)
Comment: GP opposes such a requirement, or for that matter, retention for any period beyond the current three-year rule. This would be particularly burdensome at industrial plants that change their product line frequently, e.g., at batch chemical plants, or at manufacturing plants that, because of frequent product innovation, turn over much of their product line every few years. If waste determination documentation is required for each waste stream from every product until closure at these plants, many file drawers of outdated waste determination documents would have to be retained for many years after the generation of the wastes stopped. Indeed, under the applicable RCRA Statute of Limitations, EPA only has enforcement authority to challenge noncompliant waste determinations and waste determination documentation for five years after generation of the waste. (0113)
Comment: WMA opposes a recordkeeping requirement that lasts until closure. This is an unrealistic requirement. Just as is the case with the Federal Government (IRS and a myriad of other federal agencies), private industry also loses computers and records. At our members large mining areas, portions of mine sites are often sold to multiple entities. At times some of our members have third parties operate facilities within our member facilities for experimental or other marketable processes. This requirement would lead to confusion about which entity is responsible for the files and for the historical compliance obligations. The institutional memory of those types of interactions makes it difficult to reconstruct the paper trail and responsibility trail for "life of site". (0117)
Comment: UNL also opposes the Agency's proposal to require SQGs and LQGs to maintain records of waste determinations until site closure. If adopted, such a proposal will essentially equate to a requirement to maintain records in perpetuity, particularly for the college and university sector and like institutions where it is extremely rare to close, sell, or otherwise dispose of properties. Maintaining records in perpetuity presents an extraordinarily burdensome standard with little long-term benefit. A more appropriate standard would be five-years from the date that a hazardous waste was generated, which is a common record retention term for many business related records and records typically associated with other environmental regulations such as SPCC, CAA, CWA, etc. (0121)

Comment: WRPS is not in favor of the idea regarding maintaining records of waste determinations until the generator closes the site as it would place an undue burden on generators and could require that the records be maintained for decades with no specified purpose. Since generators are allowed to keep records for any length of time beyond the currently-required three years, there is little added benefit for the generator should this become a requirement. The current three-year limit encourages regulators to inspect within a time frame that ensures that findings be made on current practices with sufficient time to correct any issue, with minimal impact to the environment. (0123)
Comment: The Chamber also disagrees with the suggestion that generators should be required to maintain waste determination documentation for the entire operating life of a facility. Depending on the specific facility, an operator might have to retain records for 25 years or longer. As a practical matter, document retention policies are corporate management decisions and should be left that way. There is no rational regulatory purpose for requiring a facility to maintain reams upon reams of paper for multiple decades at a time, well beyond the statute of limitations. (0129)
Comment: ETC supports requiring SQGs and LQGs to maintain records of their waste determinations for at least three years. If the generator wants to maintain his waste determination records until the site closes that should be at his discretion. From a liability perspective, ETC realizes there might be some value in having generators retain waste determination records for a lengthy period of time. For example, a generator may want to maintain records of its solid and hazardous waste determinations to support and respond to any questions an inspector may have about a particular waste determination.

Therefore, we encourage the agency to make such lengthy recordkeeping recommendations in the preamble but not as a proposed regulation. (0134)

Response: The Agency agrees with the comments of this commenter.

Comment: The proposed requirement is to document and maintain all waste determinations "until the generator closes its site, rather than for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage and disposal." This suggests that institutions would need to maintain records of every waste determination, including those where the waste was determined not to be RCRA-regulated. If the intent is that this applies to every container with a chemical in every laboratory, kitchen, trade shop, student room, barn, and other locations that generate any kind of waste, it will be an overwhelming task and will be without benefit. (0135)
Comment: While understanding EPA's concern that inspectors may be unable to inspect a facility within the three-year record maintenance window, Drake strongly suggests that the administrative burden on academic institutions to, in effect, indefinitely maintain waster determination records would be excessive. (0136)
Comment: This proposed requirement to document and keep all waste determinations until site closure implies that Creighton will be required to keep this information in perpetuity. This will be an overwhelming task for the typical small quantity generator such as a university with so many varying waste streams. (0141)
Comment: This suggests that institutions would need to maintain records of every waste determination, including those where the waste was determined not to be RCRA-regulated. If the intent is that this applies to every container with a chemical in every laboratory, kitchen, trade shop, and other locations that generate any kind of waste, it will be an overwhelming task and will be largely be without benefit. The added costs for unnecessary analytical testing and for training virtually every individual at a sector institution that disposes of trash will severely impact budgets and an administrative burden to manage.

--If the intent is that this provision be specific to laboratories, shops, and other areas that traditionally produce hazardous wastes, there will still be significant negative impacts. Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any increased benefit in safety or compliance.

--Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0142)
Comment: MDU agrees with USWAG that EPA's proposal to retain all records of any hazardous waste determinations, regardless of the result, for the life of the facility is an unreasonable presumption that all waste is hazardous unless documented otherwise. (0149)
Comment: Keeping determination records until the generator closes is extremely burdensome and in most cases unneeded since most materials are disposed of quickly and properly.
a. Many generators have existed for 50 to 100 years and probably will exist for at least that long moving forward, especially academic institutions. If the new determination process is approved we are looking at having hundreds of determinations per month we are looking at a major record retention issue.
EPA states that it thinks most generators will keep their records electronically, but what happens in 30 years when technology makes the records obsolete because they can no longer be accessed from software upgrades or storage devices no longer being used (i.e. floppy disks) (0154)
Comment: Impose significant new recordkeeping and retention requirements for all hazardous waste determinations including instances where a solid waste is not hazardous. (0155)
Comment: EPA has requested comment on whether to require SQGs and LQGs to maintain records of their waste determinations until the generator closes its site, rather than for at least three years. This requirement seems unduly burdensome and unnecessary, especially if EPA does not significantly narrow the scope of the waste determinations that must be documented, as discussed in the prior comment. We recommend EPA maintain the three-year recordkeeping requirement for hazardous and non-hazardous waste generation. This is consistent with the manifest retention time and comports with Agency efforts to reduce recordkeeping burdens in its RCRA Reduction Rule. (0159)
Comment: For the following reasons, we believe that the current records retention period of three years is appropriate and should be preserved. First, Yale University has been at its current location in New Haven since I7I6. Since there is no prospect of our closure, requiring us to maintain waste determination records until Yale doses its site would require that we retain waste determination records in perpetuity, which is burdensome and unreasonable. Second, as noted above, the current § 262.11 requires that any person who generates a solid waste must determine whether that waste is a hazardous waste and prescribes the methodology for doing so. Accordingly, even in the absence of written waste determinations, an EPA inspector could still demand a demonstration of compliance with this requirement.

As explained above, universities address correct hazardous waste determinations and appropriate hazardous waste management by having procedures for the identification, collection and disposal of hazardous waste. EPA has acknowledged that such procedures ensure proper management of hazardous waste as well as the safe disposal of wastes that are not RCRA regulated. Considering this-rather than prescribing new and burdensome recordkeeping for solid and hazardous waste determinations-we recommend that EPA instead require that generators develop and implement appropriate procedures, modeled after § 262.207(b) of Subpart K. We believe these procedures effectively substitute for records of waste determinations because they explain what university wastes are RCRA regulated and how they are managed safely and compliantly. (0166)
Response: At this time, in lieu of requiring non-hazardous waste determination documentation and keeping records for the life of the facility, 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, as discussed above, 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.

Comment: Notwithstanding our forgoing objections regarding the need to document "non-hazardous" waste determinations, SSINA supports the proposed three year timeframe for retaining waste determination records in 40 C.F.R. §262.11(e), which is consistent with the existing three record retention requirement for hazardous waste manifests. While the agency seeks comment on maintaining waste determination records until site closure, that suggestion should be dismissed as unwarranted in light of the five statute of limitations for RCRA enforcement actions. There is no rational justification for burdening facilities with a lifetime record retention requirement or for extending the record retention requirement beyond three years. (0167)
Comment: In the preamble to the proposed rule, EPA requests comment on "requiring SQGs and LQGs to maintain records of their waste determinations until the generator closes its site, rather than for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, and disposal." See 80 Fed. Reg. at 57,945. The Agency suggests that such extended recordkeeping would be useful "to support and respond to any questions an inspector may have about a particular waste determination  -  even if is more than three years from when it was ... generated." Id. However, it is difficult to understand why an inspector would be asking about a hazardous waste determination for a waste that has not been generated or managed at the site for over three years. Even if a misclassification were found at that point, there would generally be nothing that the inspector could do about it, in light of statutes of limitation on any potential enforcement claims. In addition, any conceivable environmental harm from such an old misclassification could probably not be remedied. Indeed, this is why EPA originally established a three-year record retention rule. See 45 Fed. Reg. 12,724, 12,730 (February 26, 1980) (responding to "comments ... suggest[ing] various lengths of record retention, varying from a year to 25 years," by saying that "three years ... provides a sufficient period for the Agency's enforcement and implementation purposes"). For this reason, there appears to be no reason to require records of hazardous waste determinations to be kept until facility closure.

Even if the extended retention period could be justified for some generators, it should not be applied to the retail industry. As discussed in Section 5.1.4 above, retail stores commonly handle tens of thousands of SKUs, a substantial percentage of which change from year to year. Keeping records on every SKU that was ever held in inventory for the entire life of a store  -  which in many instances may stretch out over several decades  -  is simply impossible. Indeed, this would likely be true even if EPA were to limit this document retention requirement to hazardous waste determinations. While only a portion of the SKUs sold by a store are likely to be hazardous, for some retailers the percentage could be quite high. Even where the hazardous percentage is only moderate (e.g., 10%), keeping records for the entire life of a store would be problematic. Most retailers find the current three-year requirement challenging enough. (0168)
Comment: DEQ disagrees with the proposed idea for a facility to maintain its waste determinations until the facility closes. This requirement provides no benefit to either the facility or the regulatory agency, since no other documentation of this waste would be required to be held by the facility until closure. DEQ believes this proposed revision would simply open the facility to a potential area of non-compliance while creating no real benefit for the facility or the regulatory agency.

DEQ disagrees with the idea of requiring a CESQG to maintain documentation of hazardous waste determinations, for the same reasons discussed in Section VIII.B.6. (0182)
Comment: KULC-EHS opposes the Agency's proposal to require SQGs and LQGs to maintain records of waste determinations until site closure. If adopted, such a proposal will essentially equate to a requirement to maintain records in perpetuity, particularly for the college and university sector and like institutions where it is extremely rare to close, sell, or otherwise dispose of properties. Maintaining records in perpetuity presents an extraordinarily burdensome standard with little long-term benefit. A more appropriate standard would be five-years from the date that a hazardous waste was generated, which is a common record retention term for many business related records and records typically associated with other environmental regulations such as SPCC, CAA, CWA, etc. (0183)
Comment: There are definite drawbacks to EPA's proposal. The potential environmental benefit of extending the retention period for the life of the facility is difficult to quantify. The proposal would also add to the already considerable recordkeeping burden borne by generators. We understand that generators may have various reasons for wanting to retain records beyond the current required three-year retention period. EPA notes, in particular, the situation where a facility may not have been inspected during the three-year period. That said, processes at a facility will undoubtedly change over time and there would be little point in maintaining records for waste that might have ceased to be generated decades earlier. In addition, statutes of limitation would likely have passed for any hazardous waste management violations.

On the other hand, extending the retention period until the generator facility closes could have advantages to both the generator (and/or its successors) and regulatory agencies. The RCRA corrective action process is exacting and, at times, onerous. We can imagine that having a complete historical record of waste generated and stored at the facility might be useful to the entities responsible for carrying out and overseeing the facility's closure. Such records could also be valuable to future potential purchasers of the facility.

Lastly, as the agency notes, current electronic recordkeeping and storage systems would allow for the long-term retention of records without much difficulty. This requirement, including the computerization and storage of records will, however, fall harder on small businesses. Contrary to EPA's assumption in the NPRM, even smaller entities may produce a great number of waste streams, and the agency should account for this in its decision-making. (0188)
Comment: The current language, requiring hazardous waste determination records for hazardous wastes be kept for three years after the waste ceases to be generated and disposed, is more feasible and relevant to on-site processes. Keeping these records until the facility closes is not relevant to the processes at the site and could become overly burdensome to facilities with multiple processes that change and multiple lab spaces that have fluctuating research projects. (0190)
Comment: SOCMA is also mildly astonished by the proposal that generators retain all records regarding waste determinations at a facility until that facility closes. Some RCRA generator facilities have been in operation since the 19th Century. With any luck, many current facilities will be in successful operation for decades and decades to come. These facilities could be tasked with storing enormous volumes of waste documentation.

There is no reason for a facility to retain generator records that long. As a practical matter, there is little reason to retain waste determination records for any waste after that waste has been treated or destroyed  -  at that point, it no longer exists and cannot pose any continuing harm. There may be some logic to retaining records for wastes disposed of in landfills or surface impoundments, but the Superfund statute already provides sufficient incentive for a facility to maintain sufficient records to characterize such wastes. (0192)
Comment: NMA opposes a recordkeeping requirement that lasts until closure. This is too burdensome for SQGs and LQGs, even for those facilities that may computerize their records. EPA should not impose a large, open-ended recordkeeping burden that will have no measurable benefit for a generator's current compliance with RCRA. EPA should retain the three-year timeframe, consistent with other RCRA recordkeeping provisions, such as manifest records (Section 262.20 and Section 262.40). This timeframe is also consistent with the typical scope of State and EPA inspections. A different recordkeeping requirement for waste determinations is unnecessarily confusing. Additionally, it creates a long-term document management problem for generators. Typically, long-term physical document control requires a third-party that controls the documents off-site. Also, long-term document control relies on an individual's cataloguing that may outlast the individual and complicates finding the specific document(s) in the future.

Furthermore, many record-retention laws have a fixed timeframe of a few years (e.g., based on applicable statutes of limitations for civil and criminal claims), so an open-ended recordkeeping obligation (that technically will never end) would conflict with the detailed, shorter-term recordkeeping policies of many generators. Finally, if EPA were to require generators to maintain records for more than three years, how far back would inspectors be able to request data from facilities? Would this provision lead to potential retroactive enforcement action on facilities? If EPA extends the recordkeeping requirement until a generator closes its site, is imperative that EPA implement restrictions on how far back an inspector may seek documentation to maintain a fair enforcement process. (0200)
Comment: This proposal could potentially require some SQGs or LQGs to maintain waste determination records for decades, if not longer. There is no additional environmental benefit by requiring SQGs and LQGs to maintain waste determination records until closure of the site beyond three years from the date that a waste last sent to on-site or off-site treatment, storage and disposal. Thus, this proposal is unnecessarily burdensome and only serves to create an ongoing, recordkeeping obligation for SQGs and LQGs that would be enforceable beyond the statute of limitations of any underlying violation (e.g., making an inadequate or incorrect hazardous waste determination or a violation resulting from incorrectly managing or disposing hazardous waste).
(0201)
Comment: This record retention proposal will require that they retain records for the entire life of the facility and beyond. Given the expanded scope of records proposed by EPA, this will result in an unmanageable volume of records, necessitating off-site storage solutions and time lag for retrieval if requested during an inspection. We recommend that records be maintained for three years and remove the language "after the last day of generation." (0205)
Comment: Purdue believes that documenting all waste determinations for a minimum of three years as proposed in §262.11(e) would be extremely burdensome in an academic setting such as Purdue. (0208)
Comment: EPA has requested comment on requiring small quantity generators (SQGs) and large quantity generators (LQGs) to maintain records of waste determinations until the generator closes it site, rather than for three years. This is unnecessary and burdensome. There is not rational reason to retain these records well beyond the statute of limitation for enforcement or interest in these records. EPA should not expand the record keeping retention requirement. (0212)
Comment: Record retention - waste analyses and profiles should be for three years from when the waste was last sent off site for disposal. (0214)
Comment: Many of the States believe there is no added benefit to having generators keep their waste determination records until closure. Some States believe there is merit to requiring all generators, including CESQGs, to maintain these records for at least 3 years. However, one State disagrees with the idea of requiring a CESQG to maintain documentation of hazardous waste determinations. This State feels there would be no environmental benefits attained from this requirement, as a lack of facility documentation does not necessarily mean the facility has improperly disposed of their hazardous wastes. (0217)
Response: The Agency is not prepared to require CESQGs/VSQGs to document their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made.
Comment: This is an unacceptable proposal. Large complex facilities such as mines and many other facilities in a spectrum of industries generate a wide variety of wastes. As technologies, processes, and materials improve with time, products are continually being replaced with new products. The waste materials change right along with the products so maintaining waste determinations until the facility closes would be an extreme burden on industries. These determinations, over-time would become nearly impossible to maintain and keep organized.
(0220)
Comment: The FRRC believes there is absolutely no reason EPA should require that these records should be kept throughout the life of the facility. Some of these facilities exist for decades and decades, and it is extremely burdensome to require such records be maintained for essentially forever. More importantly, RCRA enforcement actions are subject to a statute of limitations, and there is no reason to require a facility to maintain these records beyond that timeframe. (0224)
Comment: TCCI strongly opposes the maintenance of generator characterization data for a period of time greater than 3 years for SQGs and LQGs. However, Tennessee does require that the most recent characterization be maintained until the waste stream is no longer generated even if it is greater than 3 years old. A requirement to keep all waste stream characterization information for the life of the facility is excessive and extremely burdensome. (0225)
Response: The Agency believes maintaining a facility's most recent characterization of a solid
and hazardous waste generated, even if it is greater than 3 years old, is a best management practice that should be considered by other facilities, if it is not already occurring.
Comment: If the intent is that this provision be specific to laboratories, shops, and other areas that traditionally produce hazardous wastes, there will still be significant negative impacts. Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any benefit in safety or compliance. The proposed rule also appears to weaken the use of generator knowledge for making hazardous waste determination by requiring that the basis of that knowledge is documented. This is unnecessarily burdensome, and the EPA already has the authority to challenge generator knowledge without the added recordkeeping.

While opting into Subpart K, for those institutions in states that allow it, would relieve this requirement for laboratories, it would still apply to our maintenance, cleaning, and other non-laboratory activities.

Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0226)
Comment: For the following reasons, we believe that the current records retention period of 3 years is appropriate and should be preserved. First, Arizona State University has been at its current location in Tempe, AZ since 1885. Since there is no prospect of our closure, requiring us to maintain waste determination records until ASU closes its sites would require that we retain waste determination records in perpetuity, which is burdensome and unreasonable. Second, as noted above, the current§ 262.11 requires that any person who generates a solid waste must determine whether that waste is a hazardous waste and prescribes the methodology for doing so. Accordingly, even in the absence of written waste determinations, an EPA inspector could still demand a demonstration of compliance with this requirement.

As explained above, universities address correct hazardous waste determinations and appropriate hazardous waste management by having procedures for the identification, collection and disposal of hazardous waste. EPA has acknowledged that such procedures ensure proper management of hazardous waste as well as the safe disposal of wastes that are not RCRA regulated. Considering this, rather than prescribing new and burdensome recordkeeping for solid and hazardous waste determinations, we recommend that EPA instead require that generators develop and implement appropriate procedures, modeled after§ 262.207(b) of Subpart K. We believe these procedures effectively substitute for records of waste determinations because they explain what university wastes are RCRA regulated and how they are managed safely and compliantly. (0228)

Response: At this time, in lieu of requiring non-hazardous waste determination documentation and keeping records for the life of the facility, 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, as discussed above, 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.
Regarding the comment recommending that EPA instead require that generators develop and implement appropriate procedures, modeled after§ 262.207(b) of Subpart K, EPA encourages college and universities to use Subpart K, which was specifically designed to address the concerns of this sector, including the types of concerns expressed in this comment.
Comment: The MPCA does not support the proposed requirement for SQGs/LQGs to maintain hazardous waste evaluation records until the site closes. Previously discussed changes to 40 CFR 262.11(e) already would require generators to retain their hazardous waste records for three years from the last date a waste was generated. Therefore the MPCA believes the EPA's concern expressed at 80 FR 57945 that "...Because an inspector may not be able to inspect every SQG and LQG within three years from when the solid or hazardous waste was first generated, a generator may discard its waste determination records prematurely..." is misplaced, since the EPA therein assumed that evaluation records would only be required to be maintained for three years from when a waste was first generated, not the last date as actually proposed. Thus, unless a site generated a hazardous waste, then immediately ceased doing so and did not resume it over the next three years, a very unusual occurrence, waste evaluation records would reasonably be expected to be available for any EPA or state inspection in a reasonable time. The EPA continues to repeat this application error through the discussion of this proposed mandate.

The MPCA's concern regarding an effectively open-ended (as long as a site continues operating, its record retention requirement would continue in perpetuity) records retention requirement is on relevance and reasonableness - under the proposed mandate, a site could be considered in violation for failing to be able to provide information about a waste generated 20 years previously that hasn't been generated or handled in a decade. Though as business best management practices the MPCA does encourage hazardous waste generators to retain hazardous waste records for as long as possible, particularly for SuperFund and tort liability defense, the MPCA believes that such a recommendation is very different from a regulatory requirement. The MPCA believes that a standard of evaluation record retention of three years from the date the waste was last generated is sufficient for regulatory assurance purposes.

The MPCA also here comments on the EPA's invitation for feedback considering CESQG/VSQG evaluation document retention. As discussed in the MPCA's comment above (VIII., B., 6.), the MPCA has already long required such preparation and retention by VSQGs of evaluation documentation, and has observed that the great majority of VSQGs are well able to meet this standard without undue burden. The MPCA considers that requiring VSQGs to evaluate their waste, as the EPA's nationwide standards already do, and this proposal would clarify, without also requiring retention of the records underlying and documenting that evaluation is largely pointless - without records, verifying the sufficiency and correctness of a VSQG generator's evaluation, by either the generator themselves or a regulator, is extremely difficult if not impossible. As already suggested by the MPCA above, the MPCA recommends that the EPA strongly consider ensuring that VSQGs retain documentation of evaluations regarding waste they believe is non-hazardous. (0232)
Response: The Agency is not prepared to require CESQGs/VSQGs to document and keep records of their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made.
Comment: CRWI believes that three years is an appropriate length of time to retain records for waste determination. This length of time is adequate to allow inspectors to determine if the facility is properly characterizing the waste and maintaining the required records. In the past, the Agency has reduced the recording keeping requirements (e.g., see the 2006 Burden Reduction rule (64 FR 16,862, April 4, 2006). In this rule, the Agency made a number of changes in the recordkeeping requirements that resulted in a three year record retention requirement. These are summarized in Table 2 at 64 FR 16,866. The purpose of the Burden Reduction rule was to remove requirements that were not necessary. We believe that the current three years records retention requirements falls in line with the Agency's policy on recordkeeping as discussed in the Burden Reduction Rule. (0255)
Comment: While MU understands EPA is not proposing a change at this time, MU wishes to be clear it does not support a recordkeeping burden tied to the existence of the generator. The current requirement of three years retention extends automatically in the event of an unresolved enforcement action regarding a waste determination. For some generators, such as public universities, the generator will never "close" and this suggestion would become a permanent recordkeeping requirement that could continue for centuries. MU would support a reasonably longer record retention policy with a defined end such as "...until the generator closes its site or 20 years, whichever comes first." (0256)
Comment: EPA's proposal to require generators to retain outdated documentation for 50, 75, or 100 years places a burden on the regulated community without providing any environmental benefit. The Agency's presumption that records are kept electronically (and therefore retention is not burdensome) is not universally correct. In addition, as technology and software changes, any initial electronic versions may no longer be supported or accessible, requiring the regulated community either to keep paper copies of documents (which are not easily retrievable or searchable over time) or to continually change electronic documentation to new software as it emerges simply to meet this retention requirement.

Furthermore, the proposal's documentation retention requirement may not have the desired outcome if the corresponding waste shipment records are not also retained until the generator closes its site, which the EPA does not address in these proposed revisions. However, if these waste determination records will always be subject to inspection, generators will be compelled to retain waste shipment records for the same period of time, thus the proposal will unintentionally increase the burden being placed upon a generator to retain records relating to waste determinations and disposal. As an alternative that would be more practical and less burdensome to the regulated community, the City urges EPA to consider only extending the time for retaining the waste determinations from, for example, three years to five years. (0257)
Response: As stated above, the Agency is not changing the time period waste determination records must be maintained.
Comment: If the intent is that this provision be specific to laboratories, shops, and other areas that traditionally produce hazardous wastes, there will still be significant negative impacts. Laboratories produce a multitude of small containers of different mixtures of chemicals in different sizes and types of containers. Most containers are less than 5 liters and the largest in most labs would be 20 liters. The documentation that would be required for a hazardous determination on a container-by-container basis would increase the workload in laboratories without any benefit in safety or compliance.

The proposed rule also appears to weaken the use of generator knowledge for making hazardous waste determination by requiring that the basis of that knowledge is documented. This is unnecessarily burdensome, and the EPA already has the authority to challenge generator knowledge without the added recordkeeping.

While opting into Subpart K, for those institutions in states that allow it, would relieve this requirement for laboratories, it would still apply to our maintenance, cleaning, and other non-laboratory activities.

Most colleges and universities have been in their location for more than 100 years, and the vast majority will continue to be present for centuries to come. The proposed rule will essentially require these records to be maintained in perpetuity, which is clearly unreasonable. (0258)
Comment: We also support requiring LQGs, SQGs, as well as CESQGs to maintain records of their waste determinations until the generator closes its site, rather than for at least three years from the date that the waste was sent for treatment, storage, or disposal. (0264)
Response: Upon evaluation of all comments, the Agency agrees with those commenters
that believed that expanding the waste determination records requirement to the life of the facility is unnecessary, and unduly burdensome. EPA is thus not moving forward with the change. Similarly, the Agency is not prepared to require CESQGs/VSQGs to document their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made.
Comment: The MPCA does not support the proposed requirement for SQGs/LQGs to maintain hazardous waste evaluation records until the site closes. Previously discussed changes to 40 CFR 262.11(e) already would require generators to retain their hazardous waste records for three years from the last date a waste was generated. Therefore the MPCA believes the EPA's concern expressed at 80 FR 57945 that "...Because an inspector may not be able to inspect every SQG and LQG within three years from when the solid or hazardous waste was first generated, a generator may discard its waste determination records prematurely..." is misplaced, since the EPA therein assumed that evaluation records would only be required to be maintained for three years from when a waste was first generated, not the last date as actually proposed.
The MPCA's concern regarding an effectively open-ended (as long as a site continues operating, its record retention requirement would continue in perpetuity) records retention requirement is on relevance and reasonableness - under the proposed mandate, a site could be considered in violation for failing to be able to provide information about a waste generated 20 years previously that hasn't been generated or handled in a decade.
The MPCA believes that a standard of evaluation record retention of three years from the date the waste was last generated is sufficient for regulatory assurance purposes. (0281)
Comment: ATA would also like to express its opposition in response to the EPA's request for comment on requiring SQG's and LQG's to maintain records of their waste determinations until the generator closes its site, rather than the current three year maintenance requirement.
If generators are required to maintain solid and hazardous waste determination documentation until the generator site is closed, the space required for either hardcopy or electronic storage would be massive and not economically feasible. Furthermore, for carriers that generate waste in transit, this requirement raises additional concerns, including how the carrier would determine if the generation "site" has been closed. For these reasons, the EPA should maintain its existing requirement that generators maintain hazardous waste determination records for three years from the date the waste was generated. However, should the EPA implement this document retention requirement, it should either issue guidance or provide an exemption for carriers that generate waste in transit for the reason stated above.
ATA does not take a position at this time as to whether or not to impose such a requirement. However, to the extent a retention requirement is applied to VSQG's, the requirement should not extend beyond three years from the date of waste generation, due to storage concerns as described above.
EPA should retain the three year requirement for hazardous waste generators to preserve documents pertaining to solid and hazardous waste determinations and not require generators to maintain those records until the generator closes;

To the extent that EPA wishes to apply the waste determination document retention requirement to CESQGs, that requirement should not exceed three years from the date of waste generation. (0283)
Response: The Agency is not prepared to require CESQGs/VSQGs to document their hazardous waste determinations at this time. Further evaluation is necessary before a final decision can be made.
Comment: At FR Vol. 80, No 186 (57945/3), the Agency requests comment on adding provisions to 262.11 requiring SQGs and LQGs to maintain records of their waste determinations until the generator closes its site. This is a perfect example of a proposed requirement that is very difficult to comment on without being provided proposed regulatory language. Because of the multitude of potential impacts and complications associated with such a requirement, both the requirement itself and EPA's intent are not clear in the proposal. The Agency failed to provide any reason a generator would want to maintain records of its solid and hazardous waste determinations to support or respond to any future questions. (0286)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their non-hazardous waste determinations for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Comment: EPA recommends that records be kept until facility closure instead of the mandatory three years. This could result in an unmanageable amount of records for small entities. It would be helpful to have additional guidance on specifically which types of records should be kept beyond the required date so this does not become overly burdensome. (0235)
Response: The Agency is not finalizing the proposed requirement that SQGs and LQGs maintain records of their hazardous waste determinations until the facility closes for the reasons discussed in the preamble. Generators shall keep records only for those solid wastes found to be hazardous wastes.

Section <IP_ADDRESS> - Hazardous waste determination electronic decision tool

The Agency requested comment on the utility of developing an electronic tool to assist generators in making a hazardous waste determination. Comments fell into three categories: (1) unlikely to be useful or of limited value; (2) useful and supportive and (3) alternative approaches to what was proposed.
Unlikely to be useful or of limited value (0077, 0078, 0089, 0092, 0094, 0134, 0152, 0182, 0214, 0217, 0219, 0232, 0255). A majority of commenters stated that developing a waste determination electronic tool would not be a useful effort and would be of limited value. Several commenters specifically questioned whether an accurate waste determination decision tool could be developed for facilities with complex operations, or developing a tool with a "one-size fits all" approach. (0077, 0089, 0094, 0182, 0217, 0232, 0241, 0255). A few commenters questioned the implications of developing an electronic tool that resulted in inaccurate waste determinations and whether either the generator or developer would be subject to an enforcement action, in which case it would have limited value to the regulated community (0078, 0094, 0214).
One commenter (0219) questioned the tool's feasibility since no commercial entity has attempted to develop such an electronic tool suggesting that it may not be feasible. This commenter questioned EPA's ability to successfully develop an electronic tool that would capture all of the waste determination nuances. Consequently, at most, such a tool should be issued as a compliance assistance tool, i.e., as guidance, instead of as a mandated program that every generator must use and abide by. Very importantly, even if the tool were generally very comprehensive and accurate, the authorized states would need to accept its use by generators before generators would be able to confidently rely on it.
Useful and supportive (0085, 0139, 0154, 0178, 0189, 0248, 0251, 0284). Conversely, several commenters supported development of an electronic waste determination decision tool, either with or without caveats. However, Colorado also recognizes the difficulty of developing such a tool; hazardous waste determination can be very facility/process specific and the development of a tool that is more than cursory in nature could prove too difficult. However, an on-line tool that could help especially SQGs and CESQGs (VSQGs) for common waste streams could prove valuable. (0085)

This tool should be promoted and shared to the regulated community during compliance inspections, especially in situations where the generator is inadequately performing waste determinations. (0139)

An electronic tool to help with waste determinations would be helpful but should not be the use of it must not be made mandatory. (0154)