disagree that the training requirements should solely be placed in a
planning document.  Instead, EPA believes a more traditional approach
with specific performance-based requirements in the regulations
accompanied by an eligible academic entity’s planning document
describing its intended best practices for training will result in
overall better environmental management, safer unwanted materials
handling and protection of human health in the environment.

Comment: We heard from one commenter suggesting that if EPA adds
non-academic institutions to the rule, EPA should allow the transient
workforce to receive waste management instruction, in lieu of training,
including individuals who do not perform independent research tasks
(Commenter No. 14).  The commenter stated that, under these criteria,
undergraduate summer hires and student interns would be equivalent to
the university student for purposes of receiving instructions.

Response:  We thank the commenter for this suggestion; however, Subpart
K, as finalized, does not include non-academic entities in the scope of
the rule.  In addition, the distinction between instruction and training
has been removed from the final rule.

Comment: We heard from one commenter expressing concern that there are
no specified time frames for the initial training for lab workers or
students such as requiring training within a specified time from first
conducting laboratory duties, and there are also no time requirements
specified for recurring training (Commenter No. 105).  The commenter
also stated that the type and amount of training that will be given by
the university or laboratory should be a required part of the Laboratory
Management Plan.

Response:  We agree with the commenter that the participating entity’s
LMP should include a required training component.  Therefore, as was
proposed, the final rule requires that all participating eligible
academic entities develop an LMP and review the LMP as needed.  The
training requirements are performance-based in nature and provide
flexibility for institutions to provide an effective method of training
to students and laboratory workers provided the training meets the
specific requirements for training relevant individuals.  § 262.214
requires participating eligible academic entities to describe in Part II
of its Laboratory Management Plan (LMP) their intended best practices
for providing training to students and laboratory workers commensurate
with their duties, and for ensuring safe transfers of unwanted materials
and hazardous wastes on-site by trained professionals.  The Agency
believes the performance-based training requirements under this rule are
sufficient to ensure that students, laboratory workers and those
conducting the hazardous waste determination and transferring unwanted
materials on-site are adequately trained commensurate with their duties.
 In keeping with the nature of performance-based requirements the final
rule does not set time-based requirements for initial training or
recurring training.  However, individuals must be trained commensurate
with their duties and, thus, it follows that individuals must first
possess the training or knowledge to adequately perform their duties.
Additionally, trained professionals must receive the full compliment of
RCRA training in accordance with the generator status (SQG status for
CESQGs).  Current LQG training requirements do contain time-based
provisions for initial training and provides for an annual review.

Comment: We heard from one commenter noting that, on page 29731 of the
preamble, the Agency implies that laboratory workers must be
RCRA-trained (Commenter No. 88).  The commenter recommended deleting the
sentence in column 1 of page 29731, which states “Therefore, for the
purpose of Subpart K, laboratory workers must…emergency response
duties or other duties, as appropriate.”

Response:  The Agency is replacing the term “RCRA-trained
individual” with “trained professional.”  This does not affect the
substance of the definition from the proposal, but is merely a change in
terminology since Subpart K is part of the RCRA hazardous waste
regulations and including “RCRA” as part of the term is unnecessary
and may, in fact, imply that anyone who is trained under Subpart K is
not “RCRA” trained.  The final preamble explains more clearly that
students and laboratory workers must be trained commensurate with their
duties.  Training commensurate with ones duties should correspond with
the level of knowledge or practical application needed by individuals to
perform their assigned functions or fulfill their job or enrollment
classification including emergency response duties performed by the
laboratory worker.  The preamble further clarifies that the hazardous
waste determinations and on-site transfers of unwanted materials outside
the laboratory must be performed by trained professionals (also see §
262.207).

Comment: We heard from one commenter stating that the proposal appears
to be silent in the matter of personal protection and safety for the
laboratory workers.  The commenter suggested minimum standards for
training content, and particularly regarding personal protection and
safety (Commenter No. 102).

Response:  We believe the requirements under Subpart K provide a
protective set of regulations for human health and the environment.
Subpart K contains provisions focused on safe management of unwanted
materials and specifically requires training in the laboratory for
students and laboratory workers which current satellite area regulations
do not.  Additionally, individuals performing the hazardous waste
determination and transferring unwanted materials on-site must also be
“trained professionals”.   We believe the requirement for
participating eligible academic entities to develop and maintain a
Laboratory Management Plan as contained in this final rule will lead to
better planning and continued improvements to standard practices.  We
believe compliance with the provisions in this final rule ultimately
translates into better personal safety for those involved in unwanted
materials management in the laboratory.  Additionally, EPA realizes that
other regulatory bodies such as the US Occupational Safety and Health
Administration and the US Department of Transportation require
laboratory safety training and it is not EPA’s intention to duplicate
training but rather to ensure proper handling and management of unwanted
materials that will enhance safety in the laboratory setting.

Comment:  We heard from one commenter stating that it is not clear in
the regulation how the regulator will determine whether the contractor
or vendor has the requisite training to conduct the waste determination
correctly, since the training records of a contractor or vendor are not
required to be kept on-site by the college or university (Commenter No.
102).  The commenter recommended that either the training records of the
contractor or vendor be kept on-site at the college or university where
that contractor or vendor makes a waste determination, or that
"contractors or vendors" be removed from the definition of "RCRA-trained
individual."

Response:  We have retained the flexibility in the definition of
“trained professional” to include contractor/vendors.  We realize
that contractors and vendors are commonly used by eligible academic
entities to make or verify hazardous waste determinations.   Contractors
and vendors used in this capacity should have the appropriate RCRA
training.  However, while it is the responsibility of the eligible
academic entity to provide training to its employees or laboratory
workers, it is not the responsibility of the eligible academic entity to
provide the required training to a contractor or vendor.  Although we
are not requiring an eligible academic entity that hires contractors to
review the training and training records or to keep training records of
the contractor it hires on-site we strongly believe that this would be a
good business practice.

Comment: We heard from one commenter suggesting that additional details
need to be provided for the training requirements for the RCRA-trained
individual (Commenter No. 44).

Response:  We received a host of comments pertaining to the level of
detail for training requirements under Subpart K, not all of which were
consistent with each other.  Some commenters stated the proposed
performance-based training requirements were not flexible enough, others
agreed with the requirements as proposed while some said the
requirements should be more prescriptive.  After careful review of the
comments, we maintain a performance-based set of training requirements
coupled with a more traditional regulatory approach is most appropriate
under this final rule.   Therefore, § 262.207 provides the base set of
training requirements a participating eligible academic entity must
adhere to and § 262.214 requires each eligible academic entity to
describe its intended best practices for meeting these requirements.
EPA believes this approach will foster better planning, and
identification and implementation of improvements as needed

7.2	Commensurate with Duties

Comment: We heard from 11 commenters stating that all training and
instruction be commensurate with the duties and activities of the
personnel (Commenter Nos. 11, 16, 17, 25, 54, 60, 61, 76, 78, 100, 108).
 One of these commenters clarified that colleges and universities should
provide a training and instruction program offering information to
laboratory personnel commensurate with their duties, irrespective of
their status as students or laboratory workers (Commenter No. 60).
Under a performance-based approach, the commenter believes this
distinction is not necessary provided proper waste management duties are
carried out.  The commenter stated that that the laboratory waste
management activities should be risk-informed, and workers need to
understand the risk associated with the material and/or activity and
take commensurate precautions.  Another commenter stated that there
should be only two categories of training requirements: (1) a
comprehensive program for those responsible for the collection, transit
and management of central accumulation areas (“fully RCRA trained
employees”); and (2) a more tailored training program for others
working with or generating unwanted materials (Commenter No. 108).  The
commenter stated that training for both groups should be commensurate
with responsibilities, and believes this two-tiered system will be much
simpler to administer while adequately ensuring the safe and appropriate
management of all unwanted materials.

Response:  We agree with the commenters stating that all training and
instruction be commensurate with the duties and activities of the
personnel and that the distinction between instruction for students and
training for laboratory workers is unnecessary provided proper waste
management duties are carried out.  Therefore, EPA has eliminated the
distinction between students and laboratory workers thereby removing an
unneeded layer of complexity.  The final training requirements removed
this complexity by collapsing training requirements for students and
laboratory workers.  Under Subpart K, both students and laboratory
workers must be trained commensurate with their assigned duties or
job/enrollment classifications.  The final training requirements closely
resemble the suggestion offered by commenter No. 108 in that students
and laboratory workers receive training commensurate with their
individualized assigned duties while individuals performing hazardous
waste determinations and on-site transfers of unwanted materials must be
trained professionals which have received the full complement of RCRA
training in accordance with the eligible academic entity’s generator
status (CESQGs must receive SQG training).  We also believe this
approach will be simpler to administer while ensuring proper training to
adequately protection human health and the environment.

7.3	Training of Personnel Conducting On-site Transfers

Comment: We heard from 15 commenters expressing concern about the
requirement for college or university on-site transportation personnel
to be RCRA trained (Commenter Nos. 11, 16, 25, 43, 48, 52, 54, 60, 68,
76, 77, 79, 92, 100, 110).   The commenters stated that this requirement
is unnecessary and does not recognize that colleges and universities
have been safely transporting hazardous waste on site for years and that
a person can safely transport unwanted material with appropriate safety
training.  In addition, one commenter pointed out that RCRA-trained
personnel are not required to take virgin material into a laboratory;
virgin material often presents a greater hazard to personnel and the
environment (Commenter No. 43).  Another commenter stated that
individuals involved in transporting materials must most importantly
have good driving skills and additionally they must have knowledge of
proper packing techniques, vehicle bracing, security, and emergency
response; none of these skills or knowledge is related to RCRA training
(Commenter No. 68).  The commenter stated that a better approach would
be to include in the LMP a list of appropriate skills and knowledge, and
let an institution develop applicable training.

Response:  We believe that the person transferring unwanted materials
on-site must be a “trained professional” according to the definition
in § 262.200, which requires that the individual complete the
applicable RCRA training requirements of § 265.16 for LQGs, or §
262.34(d)(5)(iii) for SQGs and CESQGs.  Despite the fact that commenters
stated otherwise, this requirement is consistent with the Agency’s
existing interpretation for on-site transfers of hazardous waste (see
memo March 17, 2004, Springer to Regions, RCRA Online #14703).
Furthermore, we believe that this level of training is
“commensurate” with the duties of the individual transferring the
unwanted materials on-site, which are to transfer the materials safely,
to avoid spills or releases, and to respond properly to any releases,
among other things.  Specifically, we believe that the on-site transfer
of unwanted materials outside of the laboratory should be conducted by
an individual who has received the full complement of RCRA training in
accordance with the eligible academic entity’s generator status, to
ensure that that individual is knowledgeable about the RCRA
requirements, especially with regard to compatibility of chemicals,
spill prevention, and emergency response.  This is especially important
considering that the unwanted materials from many individual
laboratories will often be collected together during the on-site
collection and transfer of those materials.

Comment: We heard from one commenter stating that students and non-RCRA
trained staff should not transport wastes to a CAA (Commenter No. 84).
The commenter stated that the rule should address this more directly, or
EPA should revise the definition of “transportation” to include
“removal from a lab.”

Response:  We agree with this commenter and have specifically stated in
the preamble to final rule that the person transferring unwanted
materials on-site must be a “trained professional” according to the
definition in § 262.200, which requires that the individual complete
the applicable RCRA training requirements of § 265.16 for LQGs, or §
262.34(d)(5)(iii) for SQGs and CESQGs.  Despite the fact that certain
commenters stated otherwise, this requirement is consistent with the
Agency’s existing interpretation for on-site transfers of hazardous
waste (see memo March 17, 2004, Springer to Regions, RCRA Online
#14703).   Furthermore, we believe that this level of training is
“commensurate” with the duties of the individual transferring the
unwanted materials on-site, which are to transfer the materials safely,
to avoid spills or releases, and to respond properly to any releases,
among other things.  Specifically, we believe that the on-site transfer
of unwanted materials outside of the laboratory should be conducted by
an individual who has received the full complement of RCRA training in
accordance with the eligible academic entity’s generator status, to
ensure that that individual is knowledgeable about the RCRA
requirements, especially with regard to compatibility of chemicals,
spill prevention, and emergency response.  This is especially important
considering that the unwanted materials from many individual
laboratories will often be collected together during the on-site
collection and transfer of those materials.

7.4	Other Trainings Provided to Laboratory Personnel

Comment: We heard from seven commenters describing other regulatory
bodies (e.g., U.S. Department of Transportation, U.S. Nuclear Regulatory
Commission, OSHA, Hazard Communication Act (HazCom)) that require
trainings on hazardous chemicals (Commenter Nos. 5, 8, 11, 25, 54, 79,
88).  These commenters emphasized the importance of being allowed to
coordinate with Subpart K’s training requirements, to avoid redundant
trainings.  Three of the commenters stated that they would intend to
satisfy the proposed training requirements through the OSHA training
(Commenter Nos. 5, 8 and 79).

Response:  The Agency believes that neither the “traditional” RCRA
generator regulations nor Subpart K prohibits the use of other training
programs to satisfy the training requirements of Subpart K, provided the
other training program(s) address the relevant RCRA requirements for
trained professionals, and the relevant Subpart K requirements to train
laboratory workers and students commensurate with their duties.

Comment: We heard from one commenter expressing concern that there are
no other appropriate regulatory requirements for training specific
enough to be appropriate for RCRA compliance (Commenter No. 7).  The
commenter stated that 24 or 48 hour OSHA “HAZWOPER” training (29CFR
1910.120) is the only regulatory compliance training routinely required
by many lab-pack vendors as well as waste generators.  The commenter
stated that this usually does not effectively cover the making of waste
determinations.

Response:  EPA shared this commenter’s concern and, after careful
review of existing training requirements, finalized Subpart K to include
performance-based training requirements in order to provide flexibility
to participating eligible academic entities.  Therefore, the final rule
requires participating eligible academic entities to train their
students and laboratory workers in Subpart K requirements commensurate
with their assigned duties and degree of involvement in handling
unwanted materials.  Participating eligible academic entities have
flexibility in choosing how they go about meeting these requirements,
and can meet these training requirements in a variety of ways.  For
instance, students in a supervised classroom setting should be trained
to place the products of experiments in the appropriate containers of
unwanted materials.  On the other hand, students conducting research
where such containers are not provided should be trained to store
unwanted materials in containers to minimize risk and label containers
with the words “unwanted materials,” or another equally effective
term, so that EH&S staff know that the containers are not longer wanted,
as well as the contents of the container and the accumulation start
date.  Additionally, training for laboratory workers commensurate with
one’s duties include, but are not limited to, training to perform
their duties to comply with the Subpart K labeling and container
management standards, supervising students in the laboratory, preparing
containers for transport, emergency response duties, and/or other
duties, as appropriate.  Finally, individuals entrusted to make the
hazardous waste determination or transfer unwanted materials on-site
must receive the full complement of RCRA training in accordance with
their particular generator status (i.e.,  § 265.16 for LQGs, or §
262.34(d)(5)(iii) for SQGs and CESQGs).

Comment: We heard from two commenters on the importance of RCRA training
for personnel who make hazardous waste determinations (Commenter Nos. 5
and 44).  These commenters agreed that hazardous waste determinations be
performed only by personnel that have received proper training.

Response:  We agree with commenters on the importance of RCRA training
for individuals making the hazardous waste determination and support a
requirement that only RCRA trained individuals may perform the hazardous
waste determination.  Further, the Agency maintains that only
individuals properly trained in RCRA may transfer unwanted materials
on-site.  The final rule requires that these functions are only
performed by RCRA trained individuals to assure safe and proper unwanted
materials management that will adequately protect human health and the
environment.

8.0 	Removal Frequency for Unwanted Materials

	8.1	General

Comment: We heard from 17 commenters expressing general or partial
support for the removal frequency requirements (Commenter Nos. 7, 11,
15, 25, 39, 51, 53, 54, 71, 73, 77, 79, 86, 87, 88, 99, 102). One of the
commenters stated that it is in favor of the proposal to regulate the
removal of unwanted material primarily by time and secondarily by
volume; it agrees with the EPA that this proposed rule will result in
much safer and environmentally sound waste management (Commenter No.
71).  One of the commenters stated that it generally supports the
extended timeframes for waste collection and characterization contained
in the proposed rule, but encouraged EPA to consider revising certain of
the timeframes to correspond to the lab practices currently in place in
most teaching and research facilities (Commenter No. 77).

Response:  We thank the commenters for their support and we have
maintained the time-driven approach as the primary approach for removing
unwanted materials from the laboratory, with a volume-driven approach as
the secondary approach.  We prefer time as the primary approach, with
volume as a secondary approach because, for most laboratories, it is
rare to accumulate 55 gallons of unwanted material.  Without a time
limit, unwanted materials could remain in the laboratory for extended
periods of time.

Comment: We heard from ten commenters stating that EPA should modify the
requirement to remove all unwanted material from a laboratory during
either the regularly scheduled removal or when greater than 55 gallons
of material is accumulated (Commenter Nos. 8, 33, 39, 51, 61, 72, 81,
99, 107, 110).  The commenters expressed concern that the requirement
would require partially filled containers and/or containers still in
active use to be removed, creating unnecessary burden and wasted
containers.  Three commenters (Commenter No. 8, 72, 81) specifically
suggested that we should require only full containers of unwanted
material to be removed at regularly scheduled removals.

Response:  	We recognize the commenters’ concerns regarding the
requirement to remove “all” unwanted materials from the laboratory
during regularly scheduled removals or when volumes have been exceeded.
However, we do not consider the alternative suggested by commenters - to
require that only full containers of unwanted material have to be
removed from the laboratory - to be practical.  It would be easy to
circumvent the intent of the regulations for regular systematic removals
of unwanted materials from the laboratory by simply not completely
filling containers of unwanted materials.  In this scenario, the removal
of unwanted materials from the laboratory would be based primarily on
volume, rather than based on EPA’s preferred approach of time.  As for
the concern about using too many containers, consolidation of compatible
materials is allowed within in a laboratory as well as at an on-site CAA
or on-site TSDF, which could then return some or most of the reuseable
containers for use in collecting unwanted material.

Comment:   We heard from 11 commenters stating that EPA should increase
the removal intervals and/or make the removal provisions more flexible
and performance-based so that colleges and universities can tailor their
operations accordingly (Commenter Nos. 11, 19, 25, 48, 52, 60, 68, 77,
107, 108, 110).  We heard from one commenter suggesting that EPA
consider adopting a system that mirrors the Universal Waste system at 40
CFR 273.15 for tracking the amount of time that unwanted materials are
stored (Commenter No. 33).  Under such a system, a lab would be allowed
to demonstrate the length of time that each container stores unwanted
material from the date the container first receives the material.

Response:  We agree with the commenters and under the final rule there
are now two alternative time-driven approaches allowed for regular
removals of unwanted materials.  The first approach is the one that was
proposed.  That is, all containers of unwanted material must be removed
from the laboratory on a regular basis, not to exceed six months.  Under
this approach, however, it is possible that a container that began
accumulating unwanted materials the day before the regularly scheduled
removal would be required to be removed.  This approach is easy to
implement, as all containers of unwanted material would be removed from
the laboratory, regardless of when they began accumulating unwanted
materials.

The second alternative being added today allows the removal of
containers of unwanted material using a “rolling” six months
approach.  That is, no individual container of unwanted material could
remain in the laboratory for more than six months.  We believe this
alternative approach provides additional flexibility that many
commenters sought by adding a choice of implementation methods for the
removal of unwanted materials, while maintaining the intent of the
regulations by requiring regular, systematic, time-driven removals of
unwanted materials.  Since there is already a requirement that all
containers have an accumulation start date associated with them, this
approach would rely on checking the dates associated with each container
in order to determine which containers would have to be removed from the
laboratory.  Individual containers could potentially remain in the
laboratory longer than under the other alternative approach and
therefore, would be more likely to be full or nearly full.  On the other
hand, this approach would likely require more frequent removals from the
laboratory to ensure that no container accumulating unwanted materials
remains in the laboratory longer than six months.

Each eligible academic entity choosing to be subject to Subpart K must
select and identify in Part I of its LMP, the approach it chooses for
complying with regular removals of unwanted materials from the
laboratory.  In Part II of its LMP, the eligible academic entity must
describe how it plans to comply with the approach it has chosen for
regular removal of unwanted materials from the laboratory.

Comment: We heard from one commenter asking for further explanation on
what supporting information may be required to show that a removal was
offered but was determined not to be necessary because no material was
unwanted (Commenter No. 79).

Response:  	We realize that some laboratories will not generate any
unwanted materials during a six month period and we do not intend for
EH&S personnel or other staff or contractors to make a trip to the
laboratory if they know that the laboratory does not have any unwanted
materials.  The eligible academic entity must describe in Part II of its
LMP how it will determine whether a removal of unwanted material is
necessary at each individual laboratory.  For example, a form or an
e-mail could be sent to each laboratory asking whether the laboratory
has any accumulated unwanted material and the EH&S could respond
accordingly.

	8.2	Regularly Scheduled Removals of Unwanted Material

Comment: We heard from one commenter stating that, in its experience,
regularly scheduled pickups are not efficient because of the varying
nature of research; rather, waste is picked up when a request is made
(Commenter No. 5).  The commenter described its procedures for picking
up unwanted material, including excerpts from its Chemical Hygiene Plan.
 The commenter noted that, even though it does not conduct regular
removals, it has established maximum shelf lives for all chemicals.  The
commenter stated that, if Subpart K is extended to its government lab,
its policy would be that unwanted material may be accumulated for
whichever comes first, six months or the individual collecting container
is full.

Response:  We disagree with the commenter that regularly scheduled
pickups are inefficient.  On the contrary, we have often heard from
stakeholders that the current satellite accumulation area regulations
are inefficient because their requirement to remove an excess of 1 qt of
acute hazardous waste or 55 gallons of hazardous waste within 3 days
creates a barrier to establishing regularly schedule pickups.  These
commenters have indicated that a regulatory approach that allows
regularly scheduled pickups is preferable because it allows for better
planning and use of limited EH&S personnel.

Comment: We heard from 23 commenters asking for a longer or more
flexible timeframe (e.g., an academic year) for regular removals of
unwanted material from labs (Commenter Nos. 8, 11, 15, 16, 19, 20, 25,
31, 47, 48, 54, 58, 61, 70, 72, 76, 77, 79, 81, 86, 88, 108, 110).
These commenters believe that six months is too frequent for some
laboratories (e.g., laboratories that have episodic generation,
containers that have not filled up yet), would be burdensome, and is
unnecessary.  They provided the following alternative
approaches/timeframes:

One commenter expressed concern about a time-based system for removals
because it is too restrictive (Commenter No. 76).  The commenter
suggested that lab containers should continue to be subject to the
existing SAA time requirements and/or be subject to performance-based
provisions to be addressed in the LMP.

Ten commenters suggested the interval be an “academic year” (i.e.,
11 to 13 months) (Commenter Nos. 11, 15, 16, 20, 25, 54, 61, 72, 77,
86).  These commenters believe this removal frequency would coincide
better with colleges and universities’ academic timeframes.  We heard
from five commenters suggesting that EPA create a definition for
“academic year,” to better align with college or university research
and academic schedules (Commenter Nos. 11, 25, 76, 85, and 109).
Commenters suggested the following: "An academic year means the 11-13
month period that corresponds to a college or university's annual
teaching and research activities.”  The commenters noted that each
college or university has appropriate landmark dates on its calendar
(e.g., spring commencement or the end of summer session) that signal the
date of transition from one academic year to the next.  The commenters
believe the 11-13 month interval is necessary because the academic year
typically varies by a week or two due to placement of holidays and class
schedules.

Two commenters suggested a removal frequency of 12 months (Commenter
Nos. 47, 70).  One of the commenters noted that the American Chemical
Society recommends an annual integrity check of chemicals (Commenter No.
70).  The commenter stated that its university conducts routine
laboratory inspections annually. The commenter believes this annual
inspection would provide an opportunity to ensure that small generators
are removing their wastes on an annual basis (at a minimum), while
larger generators could continue to remove waste materials on the
routine schedule, which would be provided in the LMP.

Four commenters stated that EPA should establish a performance-based
requirement rather than setting specific timeframes for regular removals
(Commenter Nos. 60, 88, 108, 110).  The commenters suggested that
colleges and universities should address the safe and timely removal of
unwanted material in their LMPs.  One commenter believes the intent of
the removal frequency can be accomplished though approaches described in
the Laboratory Management Plan; these approaches may include a routine
review of laboratory waste generation, scheduled waste pickups, on-call
and on-line pickup request systems, clean-outs and similar
administrative or management systems (Commenter No. 110).  Another
commenter stated that, consistent with the performance-based approach of
Subpart K, the commenter believes that rather than a fixed time
limitation, institutions should be able to assess their own removal
needs (Commenter No. 108). For laboratories that typically generate
greater volumes of hazardous waste, the commenter believes an
institution can schedule more frequent pickups than it would for those
that generate small volumes or only generate hazardous waste on a
sporadic basis.  If EPA feels that a removal time limit is necessary,
the commenter believes it should be risk-based, defined by the
institution’s LMP and should be no less than a full academic year.

Response:  We disagree with the commenters and we have determined, based
on all the available information, to keep six months as the maximum time
between regularly scheduled removals.  We have retained six months as
the maximum time between regularly scheduled removals of unwanted
materials from the laboratory for several reasons.  First, we believe
that implementing regular removals on the basis of an “academic
year” could be confusing because not all eligible academic entities
operate according to an “academic year” and even within an
institution, the length of an “academic year” varies from year to
year.  Second, as we indicated in the preamble to the proposed rule, our
goal is to have unwanted materials removed from laboratories at least
once each semester because we agree with one commenter that explained
its preference for a schedule that allows removals on a semester basis
as follows: “colleges and universities generally use the semester’s
end to encourage laboratory workers and students to have unwanted
materials removed from their laboratories before leaving campus.  This
practice reduces the risk that unknown materials will be left behind by
a student or laboratory worker who does not return the following
semester.  Also it limits the amount of waste material stored in
laboratories during the break, when fewer people are around to monitor
or be aware of the conditions in the laboratory.”  Finally, as
discussed in the proposal, we believe that allowing unwanted materials
to accumulate for longer than six months would not serve to reduce risk
to laboratory personnel and provide the benefits to human health and the
environment to the same extent as allowing unwanted materials to
accumulate for a six month period.

Finally, we believe that allowing each eligible academic entity to
decide for itself an appropriate time interval for the removal of
unwanted material, without providing a maximum interval, would not
provide adequate protection to human health and the environment.

Comment: We heard from one commenter stating that a timeframe is not
needed, because it is too restrictive for the level of protection
provided (Commenter No. 58).

Response:  We disagree with the commenter.  We prefer the time-driven
approach, with the maximum volumes as a backup because, for most
laboratories, it is rare to accumulate 55 gallons of unwanted material.
Without a time limit, unwanted materials could remain in the laboratory
for extended periods of time and be more likely to result in dangerous
situations.

Comment: We heard from three commenters asking EPA to clarify that
unwanted materials can be picked up within the regularly scheduled
intervals (Commenter Nos. 11, 25, 54).

Response:  Six months is the maximum interval allowed between regularly
scheduled removals of unwanted materials.  Of course, unwanted materials
may always be picked up with greater frequency than specified in either
the regulations or the eligible academic entity’s LMP.

Comment: We heard from three commenters asking EPA to clarify that a lab
clean-out qualifies as a regular removal (Commenter Nos. 11, 25, 77).

Response:  We view laboratory clean-outs to be distinct from routine,
regularly scheduled removals of unwanted materials.  In the course of
normal laboratory operations, many chemicals are used and will become
unwanted materials and ultimately may be determined to be hazardous
wastes.  This can occur as a result of teaching or research activities
or, in the case of teaching hospitals, as a result of clinical or
diagnostic activities.  We expect that these routinely generated
wastestreams will comprise the bulk of the unwanted materials that are
removed from the laboratory during regularly scheduled removals.  On the
other hand, a laboratory often can accrue a large number of unused
chemicals in its inventory, some of which can become dangerous over
time, developing the potential to cause significant harm.  It has been
our observation that it is unusual for laboratories to remove unused
chemicals from their inventories on any regular basis.   Therefore, a
regularly scheduled removal of unwanted material does not qualify as a
laboratory clean-out.  Nor does a laboratory clean-out qualify as a
regularly scheduled removal.  However, nothing prohibits these two
events from happening concurrently in order to coordinate waste
management activities.

Removal of Unwanted Material when Volumes are Exceeded

Comment: We heard from fourteen commenters that indicated support for
the 10-day removal frequency for unwanted materials that exceed
specified volume limits in the laboratory (Commenter Nos. 11, 15, 25,
51, 53, 54, 71, 73, 77, 79, 86, 87, 88, 99).

Response:  We thank the commenters for their support.  We have retained
the requirement that if a laboratory accumulates more than 55 gallons of
unwanted material, all unwanted materials (including reactive acutely
hazardous unwanted material) must be removed within 10 calendar days, or
at the next regularly schedule removal, whichever comes first.
Likewise, we have retained the requirement that if a laboratory
accumulates more than 1 quart of reactive acutely hazardous unwanted
material, all reactive acutely hazardous unwanted materials must be
removed within 10 calendar days, or at the next regularly schedule
removal, whichever comes first.

Comment: We heard from one commenter suggesting an increased volume
limit for unwanted material in a lab (Commenter Nos. 107).  The
commenter stated its belief that the proposed rule would result in the
accumulation of greater quantities of unwanted materials in college or
university labs.  The commenter noted that the proposed revisions would
apply to all unwanted materials in the laboratory that have the
potential for being RCRA hazardous wastes.  The commenter was uncertain
that EPA had considered the quantity of unwanted materials that would
result from such provisions.  The commenter encouraged EPA to increase
the volume limit for accumulation of unwanted materials in a lab to 110
gallons.

Response:  We agree with the commenter that there may be greater
quantities of unwanted materials in the laboratories, because the
definition of unwanted material may capture materials that eventually
turn out not to be solid or hazardous waste.  However, we do not believe
it is necessary to increase the volume limit for accumulation of
unwanted materials to 110 gallons because most commenters have told us
that their laboratories rarely accumulate 55 gallons of hazardous waste.
  We also do not believe that increasing the volume limit for
accumulation of unwanted materials would provide the protection that we
are seeking in promulgating these alternative regulations for
laboratories.

Comment: We heard from one commenter stating its preference for either
10 working days or 14 calendar days (Commenter No. 107).  The commenter
also stated that, under the rule, if the volume limits for accumulation
of unwanted materials and acutely reactive unwanted materials are
reached in a laboratory, the materials must be picked up within 10
calendar days or at the next regularly scheduled removal, whichever
occurs first.  The commenter expressed concern that the next scheduled
removal may be the next day and this would put a strain on a site’s
limited waste management resources.  The commenter suggested rewording
the provision to address this.

Response:  We have decided to retain ten calendar days for removing
unwanted materials from the laboratory when maximum volumes are
exceeded.  We believe that ten calendar days will provide sufficient
flexibility to respond to the occasions when 55 gallons of unwanted
material (or 1 quart of reactive acutely hazardous unwanted material) is
exceeded, while maintaining protection to human health and the
environment.  We prefer to rely on “calendar days” rather than
“working days,” because there is no ambiguity over what a
“calendar day,” is and therefore the term provides more consistency
and is easier to implement.

The final rule retains the requirement that if the volume limits for
accumulation of unwanted materials and acutely reactive unwanted
materials are reached in a laboratory, the materials must be picked up
within 10 calendar days or at the next regularly scheduled removal -
whichever occurs first.  With the requirement to pick up the unwanted
materials at whichever date occurs first, we intended to ease the strain
on a site’s limited waste management resources.  We do not agree with
the commenter that this would be a burden.

Comment: We heard from one commenter stating that a problem with the
section 262.208 provisions is that the physical dimensions of
“laboratory” are not clear as it relates to the 55 gallon limit
(Commenter No. 39).  The commenter stated that, with open laboratory
configurations, which allow for more collaboration, a “laboratory”
appears to include a large number of laboratory hoods or bays and
encompass the work of many researchers.  Since some streams can be
generated in larger volumes on occasion, like hazardous wastewater and
spent solvents, the commenter believes the rule could require that all
the researchers would have to label all their different waste stream
containers with the date that 55 gallons was exceeded and move all of
their partially full containers of accumulating material to the
centralized collection area in an abrupt manner.

Response:  We agree with the commenter that the physical dimensions of
“laboratory” are not clear as it relates to the 55 gallon limits.
This has also been true of the existing satellite accumulation area
(SAA) regulations.  With all the possible permutations for laboratory
arrangements and configurations, we believe that it is not possible, in
a regulation or in guidance, to delineate for all situations what
constitutes a single laboratory (or SAA) or multiple laboratories (or
SAA).  Therefore, what constitutes one laboratory (or SAA) versus
multiple laboratories (or SAAs) has and will continue to    depend on
the facts.

Comment: We heard from three commenters that objected to the extended
time for removals (Commenter Nos. 40, 41, 58).  Two commenters stated
that it would not be protective of human health or the environment, as
it would allow and even reward generators for failing to maintain some
awareness of the amount of unwanted materials accumulating at various
laboratories on a campus (Commenter Nos. 40, 41).  These commenters
recommended retention of the three-day period.  Another commenter stated
that the extended timeframe is not needed (Commenter No. 58).  The
commenter stated that colleges and universities could remove an unwanted
material to the CAA before it reaches the volume limit, thereby avoiding
the need for an extended removal timeframe.

Response:  Under the SAA regulations of § 262.34(c), if the maximum
volumes are exceeded, the excess of 55 gallons of hazardous waste (or 1
quart of acutely hazardous waste) must be removed from the area within
three days.  We have frequently heard that the three-day time limit was
problematic, especially during long weekends and holidays.  This has
been particularly problematic at large institutions that can have
hundreds of individual laboratories.  Many commenters were supportive of
the extension from three days to ten calendar days the removal of
unwanted materials from the laboratory when the maximum volumes are
exceeded and therefore we have retained the ten calendar days.  We
should note, however, that we view this volume limit as a secondary
approach to the primary approach of time-driven removals required by
Subpart K.  As such, we agree with the commenter, and believe that most
removals of unwanted materials will occur during regularly scheduled
removals, before maximum volumes are exceeded.

Comment: We heard from one commenter expressing puzzlement with the
notion that a regulatory change is needed to allow additional time for a
college or university to remove unwanted material that has exceeded
specified limits (Commenter No. 43).  The commenter believes regulators
should already recognize that colleges and universities may need
additional time to remove their wastes (e.g., because of holidays and
weekends).

Response:  Although we have long recognized that colleges and
universities may need additional time to remove from the laboratory
their hazardous wastes in excess of 55 gallons (e.g., because of
holidays and weekends), until now, the generator regulations have,
nonetheless, required the excess of 55 gallons of hazardous waste (or 1
quart of acutely hazardous waste) to be removed within 3 days.

Comment: We heard from one commenter that stated that the proposed
requirement to move the unwanted material when 55 gallons have been
accumulated would be better crafted to mean "in any one container "
(Commenter No. 51).

Response:  We disagree with the commenter.  First, it is rare for a
teaching or research laboratory to accumulate unwanted materials or
hazardous waste in 55 gallon containers.  The containers used for
accumulating unwanted materials in such laboratories tend to be liter,
4-liter, and sometimes 5-gallon containers.  Second, under the existing
SAA regulations it has always been our interpretation, and it continues
to be under Subpart K, that the 55 gallon accumulation limit applies to
all hazardous wastes or unwanted materials combined.  That is, all
unwanted materials (or hazardous wastes) in the laboratory (or SAA) must
be counted toward the 55 gallon limit.

Comment: We heard from one commenter requesting that Subpart K be
consistent with current satellite regulations regarding the volume limit
“per waste stream”, rather than total volume (Commenter No. 76). The
commenter stated that, in lieu of the time limit, EPA should use current
satellite accumulation area limits per waste stream and/or establish a
performance-based requirement to be included in the Laboratory
Management Plan.

Response:  We disagree with the commenter on his/her interpretation of
the satellite accumulation area regulations.  Under the existing SAA
regulations it has always been our interpretation, and it continues to
be under Subpart K, that the 55 gallon accumulation limit applies to all
hazardous wastes or unwanted materials combined.  That is, all unwanted
materials (or hazardous wastes) in the laboratory (or SAA) must be
counted toward the 55 gallon limit.

Comment: We heard from one commenter that stated that, because the
individual containers of unwanted materials will be of varying size
(original bottles, beakers, other laboratory containers), it will be
very difficult to determine if 55-gallons has been accumulated at any
one time (Commenter No. 105).  The commenter also stated that it will be
difficult to determine the quantity accumulated for reactive acutely
hazardous unwanted materials.

Response:  We appreciate the commenter’s concern that because the
individual containers of unwanted materials will be of varying size
(original bottles, beakers, other laboratory containers), it may be
somewhat difficult to determine if 55-gallons has been accumulated at
any one time.  We view this volume limit as a secondary approach to the
primary approach of time-driven removals required by Subpart K.  As
such, we believe that most removals of unwanted materials will occur
during regularly scheduled removals, before maximum volumes are
exceeded, and therefore any such difficulty will occur in only a few
laboratories.

Comment: We heard from one commenter that the proposed rule would
require unwanted material to be removed from the lab when specified
volume limits are met (Commenter No. 7).  The commenter stated, however,
that EPA does not state how this removal will occur at colleges and
universities that choose to make hazardous waste determination in the
laboratory and do not have a central accumulation area. The commenter
states that, if waste is eventually shipped directly from the
laboratory, then this requirement would require having a hazardous waste
vendor on site to dispose of the materials within 10 calendar days.

Response:  We agree with the commenter’s assessment and point out that
this is an increase in the time allowed under the current SAA
regulations, under which the same generator would have only three days
in which to ship the hazardous waste off-site (or come into compliance
with the requirements for 90/180/270-day generator accumulation areas).

Comment:  We heard from five commenters suggesting that EPA drop the
requirement for designation of reactive acutely hazardous unwanted
materials in the proposed rule (Commenter Nos.  61, 70, 72, 86, 101).
Two commenters stated that this requirement means that laboratory
workers must make a similar type of hazardous waste determination to
those that have been problematic to colleges and universities previously
(Commenter Nos. 61 and 72).  They encouraged EPA to keep the
requirements for hazardous waste determinations and labeling simple to
implement.  Another commenter stated that, given that all but seven
P-listed materials are exempted from the one-quart limit, it is
appropriate to exempt all P-listed wastes from the one-quart limit
(Commenter No. 70). The commenter believes that the safe handling and
disposal of the seven P-listed materials can be facilitated through
education and proper guidance without the need for the one-quart storage
limit requirement.  Another commenter noted that its college program has
not generated the EPA listed materials in the past five years and
believes it is very unlikely it would generate more than a quart of them
at a given location (Commenter No. 86).  In addition, the commenter
believes the list could be confusing and divert attention away from
other waste handling issues.  Another commenter noted that EPA’s list
is relatively short and should be dropped (Commenter No. 101).

Response:  Under the SAA regulations of § 262.34(c), if more than 1
quart of an acutely hazardous waste listed in § 261.33(e) is
accumulated, the excess of 1 quart must be removed from the SAA within
three days and taken either to an on-site CAA or TSDF, or transported
off-site.  Section 261.33(e), which is commonly referred to as the “P
list” of hazardous wastes, currently comprises 124 chemicals.  The
P-list is a list of commercial chemical products that are considered
acutely hazardous waste when discarded because they are considered
hazardous even when managed in small quantities.  Under Subpart K, the
Agency is reducing the number of chemicals that are subject to removal
from the laboratory at the 1-quart threshold from all 124 chemicals on
the P-list to the six chemicals that are on the P-list because they are
reactive.  We focused on the reactive chemicals on the P-list because,
as reactive chemicals, they have the potential to cause significant and
immediate harm to individuals and property.  Given that commenters have
not disagreed with our assessment of the danger of these reactive
chemicals and that a list of six chemicals is far easier to implement
than the current 124, we are finalizing this provision as proposed,
along with the change to the definition of reactive acutely hazardous
unwanted material that was previously discussed under Section 3.7 of
this document.

9.0	On-site Transfers of Unwanted Material Outside the Laboratory

	9.1	General

Comment: We heard from two commenters asking EPA to clarify the meaning
of “transportation” in the preamble to the final rule, or in the
language of the regulatory text (Commenter Nos. 8, 84).  One of the
commenters stated that the term “transport” does not mean movement
within the same building or laboratory; this will be particularly
important if the concept of a “super satellite area” is adopted by
the Agency (Commenter No. 8).  The other commenter stated that students
and non-RCRA trained staff should not transport wastes to a CAA
(Commenter No. 84).  The commenter stated that the rule should address
this more directly, or EPA should revise the definition of
“transportation” to include “removal from a lab.”

Response:  We agree with the commenter that the use of the term
“transport” in Subpart K is confusing.  The term “transport” is
not defined, but the term “transportation” is defined in 40 CFR
260.10 as the movement of hazardous waste by air, rail, highway or
water.”  And the term “transporter” is defined in 40 CFR 260.10,
as “a person engaged in the off-site (emphasis added) transportation
of hazardous waste by air, rail, highway or water.”  Therefore, we
have revised the regulatory language to replace the term “transport”
with the term “transfer” when we are referring to on-site movement
of unwanted materials and hazardous wastes outside the laboratory.
Thus, trained professionals must accompany all transfers of unwanted
materials and hazardous wastes when they are removed from the laboratory
and brought to other on-site areas, such as other laboratories, central
accumulation areas, and TSDFs.  The term “transport” is now used
only in reference to off-site movements or shipments of hazardous waste.

	9.2	Comments on “Directly”

Comment:  We heard from one commenter that “directly” needs to be
defined as a specific timeframe (e.g., one day) (Commenter No. 66).  We
heard from one commenter stating that “directly” should be defined
as one working day (Commenter No. 53).  One commenter stated that EPA
should clarify the term “directly” even if it does not finalize the
rule (Commenter No. 58).  Two other commenters stated that
“directly” should be defined as “same day” (Commenter Nos. 14,
79).  One of these commenters stated that the definition of
“directly” should take into account that many institutions may have
several “on-campus” buildings (Commenter No. 14).  The commenter
stated that the definition should allow wastes to be picked up from
multiple locations on campus before being delivered to the central
accumulation area or treatment, storage, and disposal facility (TSDF) as
long as the wastes are transported in secondary containment, and the
transport vehicle is kept locked when not attended. The commenter stated
that the definition of “directly” should also state that wastes that
are picked up from laboratories must be delivered to the central
accumulation area or TSDF the same day that they are picked up.

Response:  In reviewing the comments, we have decided it is not
necessary to add a regulatory definition of “directly” because it
could eliminate necessary flexibility.  Rather we will simply reiterate
and expand upon the preamble discussion from the proposed rule.

In general, if the unwanted material is sent from the laboratory or
laboratories to the on-site CAA or TSDF within the same work day, this
would meet the intent of the regulation.  We realize that many eligible
academic entities will collect unwanted materials from many laboratories
at a time, in series, and will deliver all the unwanted materials to an
on-site CAA or TSDF at the end of the collection process.  This would be
an acceptable practice under today’s regulations, provided the
unwanted materials are in continuous custody of the trained professional
that is collecting and transferring the unwanted materials and they are
delivered to the on-site CAA or TSDF at the end of the work shift.  It
is not necessary to bring the unwanted material from each individual
laboratory directly to the on-site CAA or TSDF and then in a separate
trip bring the unwanted materials from the next laboratory.  Such an
arrangement would only increase the amount of time that trained
professionals would spend in removing unwanted materials from
laboratories and that unwanted materials would spend in transport, with
no benefit.  On the other hand, if unwanted materials were left on a
cart in the hallway overnight, this would not be an acceptable practice
and would not meet the intent of the regulation.

Comment: We heard from one commenter that as long as the term
“directly” negates any interim unloading/storage but does not
interfere with the transportation phase, it is appropriate (Commenter
No. 7).

Response:  We agree with the commenter that our use of the term
“directly” is intended to prevent interim storage of unwanted
materials during the course of collecting them from the laboratories.
We also agree that we do not intend to interfere with the routine
practices currently in use for the on-site collection and transfer of
unwanted materials outside the laboratory, provided those transfers are
carried out by a trained professional.

Comment: We heard from one commenter that “directly” need not be
defined (Commenter Nos. 8).  The commenter believes the term is
sufficiently clear given the preamble discussion.  We also heard from
four commenters stating that the term “directly” should not be
replaced with a more specific time-frame or same-day requirement
(Commenter Nos. 11, 25, 54, 73).  Four commenters stated that
flexibility is important because colleges and universities transport
material on campus in many different ways; as such, they recommended
that “without unnecessary delay” replace “directly” in the
regulations (Commenter Nos. 11, 25, 54, 77).  Two of these commenters
stated that it is reasonable to require that an appropriately trained
person supervise the unwanted material or that it be in a secure
location (e.g., locked in a vehicle) during the time between collection
from the laboratory and delivery to the central accumulation area
(Commenter Nos. 11 and 25). The commenters stated that, if a specific
timeframe, security precaution, or safety procedure is appropriate for a
college or university, it should be described in section 262.214(a)(5)
of the Laboratory Management Plan.

Response:  We agree with the commenters and we have decided it is not
necessary to add a regulatory definition of “directly” because it
could eliminate necessary flexibility.  Rather we will simply reiterate
and expand upon the preamble discussion from the proposed rule.

In general, if the unwanted material is sent from the laboratory or
laboratories to the on-site CAA or TSDF within the same work day, this
would meet the intent of the regulation.  We realize that many eligible
academic entities will collect unwanted materials from many laboratories
at a time, in series, and will deliver all the unwanted materials to an
on-site CAA or TSDF at the end of the collection process.  This would be
an acceptable practice under today’s regulations, provided the
unwanted materials are in continuous custody of the trained professional
that is collecting and transferring the unwanted materials and they are
delivered to the on-site CAA or TSDF at the end of the work shift.  It
is not necessary to bring the unwanted material from each individual
laboratory directly to the on-site CAA or TSDF and then in a separate
trip bring the unwanted materials from the next laboratory.  Such an
arrangement would only increase the amount of time that trained
professionals would spend in removing unwanted materials from
laboratories and that unwanted materials would spend in transport, with
no benefit.  On the other hand, if unwanted materials were left on a
cart in the hallway overnight, this would not be an acceptable practice
and would not meet the intent of the regulation.

We also agree with the commenter that the LMP is the appropriate place
to outline the procedures the eligible academic entity will use for
ensuring safe on-site transfers of unwanted materials and hazardous
wastes by trained professionals.  Due to the splitting of the LMP into
two sections, however, this section of the LMP has been renumbered and
is now found in 40 CFR 262.214(b)(3).

Comment: We heard from one commenter that suggested that exceptions to
the “directly” requirement be specified to allow for daily
collections at multiple sites within the college or university’s
contiguous campus (e.g., storage in transport vehicle while collecting
materials at multiple sites) Commenter No. 90).

Response:  We do not view the commenter’s example as an exception to
the requirement for unwanted materials to be brought “directly” from
the laboratory to an on-site CAA or TSDF.  Rather, we view collections
at multiple laboratories within a contiguous campus to be within our
meaning of the term, provided the unwanted materials are in continuous
custody of the trained professional that is collecting and transferring
the unwanted materials and they are delivered to the on-site CAA or TSDF
at the end of the work shift.

10. 0	On-site Consolidation Areas

Comment: We heard from three commenters that expressed opposition to the
creation of a consolidation area (Commenter No. 53, 58, 66).  One
commenter stated that a consolidation area would complicate inspections
since there would be too many different types of accumulation areas for
inspectors to keep track of, each with different regulatory requirements
(Commenter No. 53). The commenter also stated that a consolidation area
as proposed would lack the appropriate level of oversight, such as what
is required under the satellite accumulation rule (e.g. “under the
control of the key staff individual”). The commenter is concerned that
a consolidation area would not be adequately monitored for releases and
could easily become the repository for significant quantities of
unwanted materials from different teaching laboratories.  Another
commenter stated that it opposes a “super satellite collection area”
because safe chemical management controls may not be in place (Commenter
No. 66).  The commenter stated that, if a university or college desires
to take advantage of the rule, it should designate a central
accumulation area that is defined and regulated by the rule.

Response:  After analyzing the comments and considering the flexibility
that is already provided in the regulations, we have decided not to
establish a “consolidation area” as another type of accumulation
area for unwanted materials.  We agree with the commenters that argued
that adding another type of accumulation area with another set of
standards would be confusing for implementers and enforcers with little,
if any, benefit.  Therefore, the final rule does not include a new type
of accumulation area such as a “consolidation area” or “super
satellite area.”

Comment:  We heard from 26 commenters that expressed general or partial
support for the creation of a consolidation (i.e., super-satellite) area
(Commenter No. 5, 7, 8, 11, 15, 16, 24, 25, 43, 51, 54, 61, 69, 70, 73,
76, 77, 79, 81, 83, 85, 86, 87, 97, 99, 109).  The commenters stated
that a consolidation area could be beneficial to colleges and
universities (e.g., as staging area prior to transfer to the CAA or
onsite TSDF, enable for the safe and efficient management of unwanted
materials until the pickup is made, and encourage greater college or
university participation in the rule.  One of the commenters stated that
EPA should extend the consolidation area approach to non-academic labs
(Commenter No. 87).  One commenter stated that the concept of a central
accumulation area should be a benefit to the university settings, but
could also be expanded to all RCRA generators (Commenter No. 24).

Response:  Although we have not added to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” we believe that the flexibility that is already in
Subpart K can provide the benefits of a consolidation area, without
establishing a new regulatory category for them.

It has been EPA’s regulatory interpretation that hazardous wastes can
not be moved from one SAA to another (see memo from Robert Springer,
Director, OSW, to EPA Regional Directors; March 17, 2004, RCRA Online
#14703).  One reason for this prohibition is that it would be easy to
circumvent the 55-gallon limit in an SAA by moving hazardous wastes from
one SAA to another SAA and thus remain below the volume limits, allowing
hazardous wastes to remain in the SAA indefinitely.

Under Subpart K, however, the removal of unwanted materials is based on
time primarily, and volume secondarily.  Containers must be marked with
the date that unwanted materials first begin to accumulate.  This
requirement is necessary in order to verify that unwanted materials are
being removed from the laboratory on a regular basis.  The requirement
for a date to be associated with each container provides laboratories
with additional flexibility that does not exist in SAAs.  That is, under
Subpart K, unwanted materials can be safely consolidated within an
on-site laboratory, such as in a chemical stockroom.

As with all on-site transfers of unwanted material outside of a
laboratory, the transfer of unwanted materials between laboratories must
be accompanied by a trained professional.  Further, any laboratory in
which unwanted materials are consolidated from other laboratories is
subject to the time and volume limits for all laboratories that are
subject to Subpart K (i.e., if the laboratory accumulates more than 55
gallons of unwanted material (or 1 quart of reactive acutely hazardous
unwanted material), the unwanted material must be removed from the
laboratory within 10 calendar days).   In addition, the date that an
unwanted material first begins to accumulate in a container would remain
the same, regardless of where the container is moved.  In other words,
no re-dating of a container would be permitted if it were moved to
another laboratory or chemical stockroom.  If the contents of two or
more containers with compatible materials are combined into one
container; however, the earliest date associated with the original
containers must be used.  The date that is associated with each
container will allow inspectors to verify that containers are being
removed from the laboratory on a routine basis not to exceed six months,
as required.  And the 55-gallon volume limit will ensure that large
quantities of unwanted materials are not consolidated without the
additional protections required at CAAs.

Comment: We heard from eight commenters that provided input on the
definition for a consolidation area (Commenter Nos. 11, 25, 54, 61, 64,
68, 80, 97):

Four commenters suggested the definition:  “A consolidation area means
an accumulation area for unwanted materials, within the same building as
the laboratory generating the unwanted materials, managed in accordance
with section 262.206(c) of this Part” (Commenter Nos. 11, 25, 61, 97).
 Two of these commenters also included suggested regulatory language for
a new section 262.206(c), entitled Management of Containers in a
Consolidation Area.

Another commenter recommended a modified version of the definition
offered above: “A consolidation area means an accumulation area for
unwanted materials, within the same building as the laboratory
generating the unwanted materials, managed in accordance with section
262.206(c) of this Part. A college or university may accumulate as much
as 55 gallons of unwanted material or 1 quart of reactive acutely
hazardous unwanted material in containers in a consolidation area
without a permit and without complying with either section 262.34(a) of
this Part (large quantity generators), section 262 .34(c) of this Part
(satellite accumulation), or section 262.34(d) of this Part (small
quantity generators)" (Commenter No. 54).

Another commenter suggested the definition: “A consolidation area”
means an accumulation area for unwanted materials, within the same
building or located within 50 feet of the same building which is under
the administrative control of the university or college, managed in
accordance with section 262.206(c) of this Part” (Commenter No. 64).
The commenter believes this definition will give colleges and
universities greater flexibility than requiring the consolidation area
to be within the laboratory building.

Another commenter suggested the definition: “A consolidation area
means an accumulation area for unwanted materials, located as close as
is practical to the laboratory generating the unwanted materials,
managed in accordance with §262.206(b) of this Part. A college or
university may accumulate as much as 55 gallons of unwanted material or
1 quart of reactive acutely hazardous unwanted material in containers in
a consolidation area without a permit and without complying with either
§262.34(a) of this Part (large quantity generators), section 262.34(c)
of this Part (satellite accumulation), or §262.34(d) of this Part
(small quantity generators)” (Commenter No. 68).  The commenter
believes the standards applicable to labs should apply to consolidation
areas because the risks are comparable.

Another commenter stated that the definition should denote the area as a
non-permitted area outside of the laboratory, utilized for storage of
unwanted materials prior to removal for disposal.  This area would be in
the same building as the laboratory, and would provide a safe
alternative for laboratory space constraints, without the need to meet
all current “satellite accumulation area” restrictions (Commenter
No. 80).

Response:  Because we are not to adding to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” the suggested definitions are moot.

Comment: We heard from one commenter stating that the consolidation area
should be subject to quantity limits and time-based removal requirements
(Commenter No. 73).

Response:  We agree with the commenter and although we have not added a
new type of accumulation area called a “consolidation area,” or
“super satellite area,” as discussed above, we believe that Subpart
K provides the flexibility to consolidate unwanted materials within
another laboratory.  Any laboratory in which unwanted materials are
consolidated from other laboratories is subject to the time and volume
limits for all laboratories that are subject to Subpart K (i.e., if the
laboratory accumulates more than 55 gallons of unwanted material (or 1
quart of reactive acutely hazardous unwanted material), the unwanted
material must be removed from the laboratory within 10 calendar days).

Comment: We heard from three commenters that an unwanted material should
not be considered a hazardous waste before it arrives at the
consolidation area (Commenter Nos. 5, 51, 99).  These commenters do not
believe hazardous waste determinations should necessarily be made before
the unwanted material arrives at the consolidation area, and believe a
hazardous waste designation would unfairly penalize such wastes, which
could have the potential for beneficial reuse elsewhere at the college
or university.

Response:  It has always been the case under existing RCRA regulations,
and continues to be the case under Subpart K, that chemicals that are
fit for continued use are not solid or hazardous wastes (see §
261.2(e)(1)) and can be transferred between SAAs, laboratories, and
chemical stockrooms.  Under Subpart K, we realize that some chemicals
that are initially identified as unwanted materials will turn out not to
be solid or hazardous wastes.  If, for example, an unwanted material is
brought to an on-site CAA or TSDF for a hazardous waste determination,
and it is determined that such unwanted material can be reused, then it
is not a solid or hazardous waste and is not subject to Subpart K or the
Subtitle C hazardous waste regulations, once the determination is made.
That is, if a chemical is initially labeled as an unwanted material and
then it is subsequently discovered that it can continue to be used, the
chemical can be returned to a laboratory or chemical stockroom for
redistribution.  EPA selected the term “unwanted material” over
“laboratory waste,” in part to indicate that the material may
potentially still be useable.

Nevertheless, EPA continues to stress that today's final rule does not
alter or move the point of generation of any hazardous waste, but merely
allows the hazardous waste determination to be made at an on-site CAA or
on-site TSDF; or in the laboratory, but at a point in time after the
initial generation of the waste.  The point of generation of the
hazardous waste continues to be the location and time at which the
hazardous waste is first generated.  Therefore, the applicability of the
land disposal restrictions (LDRs) to hazardous wastes generated in the
laboratory are not affected by today’s rule and continue to
“attach” at the point of generation of the hazardous waste.  In
addition, RCRA’s statutory inspection and enforcement authorities
continue to apply in the laboratory, even though under Subpart K the
hazardous wastes are referred to as “unwanted materials,” while they
remain in the laboratory.

Comment: We heard from six commenters stating that hazardous waste
determinations should be allowed at the consolidation area (Commenter
Nos. 11, 25, 51, 54, 76, 79).

Response:  Because we are not to adding to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” the suggestion is moot.  However, since Subpart K
provides the flexibility to allow the consolidation of unwanted
materials within a laboratory and the hazardous waste determination may
be made in the laboratory before the unwanted materials are removed, the
hazardous waste determination may be made in a laboratory where unwanted
materials are consolidated.  In such a situation, the eligible academic
entity does not have to make the hazardous waste determination when the
unwanted material is removed from the first laboratory.  Rather, the
hazardous waste determination may be made when the unwanted material is
removed from the final laboratory where the unwanted materials are
consolidated.

Comment: We heard from one commenter that the LMP could describe how the
consolidation area is being used (Commenter No. 76).

Response:  Because we are not to adding to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” the suggestion is moot.  However, an eligible
academic entity could choose to include in Part II of its LMP procedures
for consolidating unwanted materials into a laboratory.

Comment: We heard from three commenters that EPA should clarify that one
cannot transport unmanifested hazardous wastes to offsite locations
(e.g., CAA) that are not subject to a permit (Commenter No. 24, 56, 88).
 The commenters were concerned that some colleges and universities may
misinterpret the consolidation provisions.  One of the commenters
suggested that, as an alternative, EPA could provide a new definition of
“onsite generator” that allows colleges and universities to
establish offsite accumulation areas (Commenter No. 56).

Response:  We agree with the commenters.  Consolidation of unwanted
materials is limited to on-site laboratories at the eligible academic
entity.  This is because, in all cases, regardless of where the eligible
academic entity chooses to make the hazardous waste determination, the
hazardous waste determination must be made on-site before the unwanted
material can be sent off-site.

Off-site consolidation of hazardous wastes is another matter, and in
most cases, a permit or interim status is required in order for a
facility to receive hazardous waste from off-site locations.

Comment: We heard from one commenter recommending that EPA clarify in
the preamble that all transfers that would occur under Subpart K could
be conducted without requiring that the waste be sent to a treatment,
storage, or disposal facility (TSDF) that is under a permit and without
use of a manifest (Commenter No. 64).  The commenter believes this would
result in benefits such as the beneficial reuse of unwanted materials.

Response:  We disagree with the commenter.  In all cases, regardless of
where the eligible academic entity chooses to make the hazardous waste
determination, the hazardous waste determination must be made on-site
before the unwanted material can be sent off-site.  Further, those
unwanted materials that are hazardous wastes must be manifested when
sent off-site and must be sent to a designated facility such as a
permitted or interim status TSDF.

Comment: We heard from one commenter expressing a desire for EPA to
allow colleges and universities to redistribute unwanted materials that
have arrived at the consolidation area, if it determines such material
is recyclable (Commenter No. 16).

Response:  It has always been the case under existing RCRA regulations,
and continues to be the case under Subpart K, that chemicals that are
fit for continued use are not solid or hazardous wastes (see §
261.2(e)(1)) and can be transferred between SAAs, laboratories, and
chemical stockrooms.  Under Subpart K, we realize that some chemicals
that are initially identified as unwanted materials will turn out not to
be solid or hazardous wastes.  If, for example, an unwanted material is
brought to an on-site laboratory for consolidation or an on-site CAA or
TSDF for a hazardous waste determination, and it is determined that such
unwanted material can be reused, then it is not a solid or hazardous
waste and is not subject to Subpart K or the Subtitle C hazardous waste
regulations, once the determination is made.  That is, if a chemical is
initially labeled as an unwanted material and then it is subsequently
discovered that it can continue to be used, the chemical can be returned
to a laboratory or chemical stockroom for redistribution.  EPA selected
the term “unwanted material” over “laboratory waste,” in part to
indicate that the material may still be useable.

Comment: We heard from one commenter stating that the concept of a
consolidation area should be extended to other RCRA generators
(Commenter No. 24).

Response:  Because we are not to adding to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” the suggestion to extend them to other RCRA
generators is moot.

Comment: We heard from five commenters suggesting new and revised
language applicable to the use of consolidation area, including
requirements such as labeling/dating, container management, training,
removal frequency, hazardous waste determinations, inspection, spill
response, signage, and documentation in the LMP  (Commenter Nos. 11, 25,
54, 70, 76).

Response:  Because we are not to adding to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” the suggestions for how to regulate them are moot.

Comment: We heard from two commenters stating that consolidation areas
should not be subject to the existing requirements for SAAs, 90/180-day
accumulation areas, or permitted units (Commenter Nos. 11, 25).

Response:  We agree with the commenter and although we have not added a
new type of accumulation area called a “consolidation area,” or
“super satellite area,” as discussed above, we believe that Subpart
K provides the flexibility to consolidate unwanted materials within
another laboratory while the SAA regulations do not.  Therefore, any
laboratory in which unwanted materials are consolidated from other
laboratories is subject to the time and volume limits for all
laboratories that are subject to Subpart K (i.e., if the laboratory
accumulates more than 55 gallons of unwanted material (or 1 quart of
reactive acutely hazardous unwanted material), the unwanted material
must be removed from the laboratory within 10 calendar days).  Under
Subpart K laboratories are not subject to the requirements for
90/180-day accumulation areas or permitted units.

Comment: We heard from one commenter stating that the provisions
applicable to a consolidation area should be comparable to those for a
laboratory (Commenter No. 68).

Response:  We agree with the commenter and although we have not added a
new type of accumulation area called a “consolidation area,” or
“super satellite area,” as discussed above, we believe that Subpart
K provides the flexibility to consolidate unwanted materials within
another laboratory.  Any laboratory in which unwanted materials are
consolidated from other laboratories is subject to the time and volume
limits for all laboratories that are subject to Subpart K (i.e., if the
laboratory accumulates more than 55 gallons of unwanted material (or 1
quart of reactive acutely hazardous unwanted material), the unwanted
material must be removed from the laboratory within 10 calendar days).

Comment: We heard from one commenter recommending that the management
standards for “super satellite areas” be qualitative measures
designed to protect human health and the environment and allow the
facilities to best develop the requirements for their specific “super
satellite areas” (Commenter No. 81).  The commenter also suggested EPA
select a name for consolidation area that clearly distinguishes it from
existing accumulation areas under RCRA (e.g. “10-day accumulation
area).

Response:  Because we are not to adding to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” the suggestions for how to regulate and name them are
moot.

Comment: We heard one commenter stating that unwanted material arriving
at the consolidation area should not be subject to RCRA requirements
because it has not been determined to be hazardous waste and OSHA
regulations apply in any case (Commenter No. 79).

Response:  Because we are not to adding to the final rule a new type of
accumulation area such as a “consolidation area” or “super
satellite area,” the suggestions for how to regulate them are moot.

Nevertheless, EPA continues to stress that today's final rule does not
alter or move the point of generation of any hazardous waste, but merely
allows the hazardous waste determination to be made at an on-site CAA or
on-site TSDF; or in the laboratory, but at a point in time after the
initial generation of the waste.  The point of generation of the
hazardous waste continues to be the location and time at which the
hazardous waste is first generated.  Therefore, the applicability of the
land disposal restrictions (LDRs) to hazardous wastes generated in the
laboratory are not affected by today’s rule and continue to
“attach” at the point of generation of the hazardous waste.  In
addition, RCRA’s statutory inspection and enforcement authorities
continue to apply in the laboratory, even though under Subpart K the
hazardous wastes are referred to as “unwanted materials,” while they
remain in the laboratory.

Comment: We heard from one commenter that described its own process for
transferring chemicals from individual labs to a central workroom and
accumulating the chemicals in the workroom while determining if the
chemical qualified as a solid and hazardous waste (Commenter No. 5).  If
the material had a further use, it would be redistributed to another
user, but if it qualified as hazardous waste, it is sent to the 90-day
accumulation area.  The commenter stated that it is unclear whether or
not an accumulation start date needs to be placed on a container if the
determination happens to be made on the day that the material arrives at
its workroom.

Response:  The accumulation start date must be added to the container
label when the container first begins accumulating unwanted material in
the laboratory.  In addition, the date that an unwanted material first
begins to accumulate in a container would remain the same, regardless of
where the container is moved.  In other words, no re-dating of a
container would be permitted if it were moved to another laboratory or
chemical stockroom.  If the contents of two or more containers with
compatible materials are combined into one container; however, the
earliest date associated with the original containers must be used.

11.0 	Hazardous Waste Determinations

	11.1	General

Comment: We heard from seven commenters expressing general support for
providing flexibility to colleges and universities in making a hazardous
waste determination for their lab waste (Commenter Nos. 11, 15, 25, 54,
87, 92, 99).

Response:  We thank the commenters for their support and today we are
finalizing the regulations pertaining to where and when the hazardous
waste determination must be made with some minor changes to address the
expansion of the applicability of the final rule to include eligible
academic entities that are CESQGs.  Eligible academic entities that are
LQGs or SQGs will continue to have the choice of making the hazardous
waste determination in the laboratory before the unwanted material is
removed from the laboratory, or within four calendar days of arriving at
an on-site CAA or interim status or permitted TSDF.  Because CESQGs
would not have an on-site CAA or TSDF, CESQGs are required to make the
hazardous waste determination in the laboratory before the unwanted
material is removed from the laboratory.

Comment: We heard from two commenters asking EPA to clarify that the
hazardous waste determination can be made in any of the three areas
identified in the rule, rather than in one of the three areas identified
in §262.209 (i.e., CAA, lab, on-site TSDF) (Commenter Nos. 11, 25).

Response:  We agree with the commenter and have changed the regulatory
language to reflect the comment.  For LQGs and SQGs, it is not necessary
for the eligible academic entity to limit itself to making the hazardous
waste determination in the same place all the time.  We realize that
this could change depending upon circumstances.  For instance, during
typical operations, an eligible academic entity may choose to make the
hazardous waste determination in its on-site CAA.  However, during a
laboratory clean-out, the hazardous waste determination might be made in
the laboratory.  Eligible academic entities that are CESQGs; however,
are limited by regulation to making the hazardous waste determination in
the laboratory before the unwanted materials are removed from the
laboratory and sent off-site.

Comment: We heard from one commenter noting that the preamble states
that once the hazardous waste determination is made in the central
accumulation area, the discarded chemical is a RCRA hazardous waste
retroactive to its generation back in the lab (Commenter No. 84).  The
commenter asked EPA to clarify the compliance and enforcement
implications under this scheme (e.g., If there is a fire in the central
accumulation area due to the mixing of incompatible wastes which
arguably were misidentified based on information from the laboratory, is
the lab worker then potentially liable under RCRA for a hazardous waste
violation?).

Response:  EPA continues to stress that the final rule does not alter or
move the point of generation of any hazardous waste, but merely allows
the hazardous waste determination to be made at an on-site CAA or
on-site TSDF; or in the laboratory, but at a point in time after the
initial generation of the waste.  The point of generation of the
hazardous waste continues to be the location and time at which the
hazardous waste is first generated.  Therefore, the applicability of the
land disposal restrictions (LDRs) to hazardous wastes generated in the
laboratory are not affected by today’s rule and continue to
“attach” at the point of generation of the hazardous waste.  In
addition, RCRA’s statutory inspection and enforcement authorities
continue to apply in the laboratory, even though under Subpart K the
hazardous wastes are referred to as “unwanted materials,” while they
remain in the laboratory.

Comment: We heard from one commenter that asked for clarification on the
timing of the hazardous waste determination in regard to unwanted
materials destined for redistribution (Commenter No. 81).  The commenter
believes, for example, that clarification is needed on whether such
unwanted materials can be legally transferred from one site’s
stockroom to another before the RCRA hazardous waste determination is
made.

Response:   It has always been the case under existing RCRA regulations,
and continues to be the case under Subpart K, that chemicals that are
fit for continued use are not solid or hazardous wastes (see §
261.2(e)(1)) and can be transferred between SAAs, laboratories, and
chemical stockrooms.  Under Subpart K, we realize that some chemicals
that are initially identified as unwanted materials will turn out not to
be solid or hazardous wastes.  If, for example, an unwanted material is
brought to an on-site CAA or TSDF for a hazardous waste determination,
and it is determined that such unwanted material can be reused, then it
is not a solid or hazardous waste and is not subject to Subpart K or the
Subtitle C hazardous waste regulations, once the determination is made.
That is, if a chemical is initially labeled as an unwanted material and
then it is subsequently discovered that it can continue to be used, the
chemical can be returned to a laboratory or chemical stockroom for
redistribution.  EPA selected the term “unwanted material” over
“laboratory waste,” in part to indicate that the material may still
be useable.

Comment: We heard from one commenter noting that EPA has not discussed
how it will be determined when and where the hazardous waste
determination is made (Commenter No. 102). The commenter stated that
this information is necessary in order to determine if the college and
university complied with §262.209(b) and (c), which requires a
hazardous waste determination to be made within four days of arriving at
the on-site central accumulation area or TSDF.

Response:  In Part II of its LMP, an eligible academic entity is
required to describe its intended best practices for making hazardous
waste determination, including specifying the duties of the individuals
involved in the process.  While the contents of Part II of the LMP are
not enforceable, the regulations pertaining to making the hazardous
waste determination (i.e., 40 CFR 262.11, 262.209-262.212), are
enforceable.  These regulations require that the hazardous waste
determination must be made within four calendar days of arriving at an
on-site central accumulation area or TSDF.  If the unwanted material is
a hazardous waste, the words “hazardous waste” must be written on
the container label that is affixed or attached to the container.  If
the unwanted material is not a hazardous waste, it is not regulated
under the RCRA Subtitle C regulations.  In its LMP, however, an eligible
academic entity may choose to indicate on the container label that the
container’s contents have been examined and determined not to be a
hazardous waste (e.g., non-hazardous).

Comment: We heard from one commenter suggesting two modifications to the
rule’s provisions on hazardous waste determinations: 1) that no mixing
or blending of the waste with other wastes or materials can occur until
the waste determination is made (e.g., no dilution to mask
characteristics or blur listing criteria), and 2) the determination must
be made before the waste is offered for transportation off of the
generator’s site. It cannot be made at an off-site TSDF (Commenter No.
24).

Response:  With regard to the commenter’s first point, EPA interprets
Subpart K to mean that in order to ensure accurate hazardous waste
determinations, only containers of the same unwanted material may be
consolidated in the laboratory, before the hazardous waste determination
is made.  Furthermore, because the land disposal restrictions apply from
the point of generation to those unwanted materials that are hazardous
wastes, the dilution prohibition of 40 CFR 268.3 applies, as well.
Therefore, unwanted materials may not be diluted prior to making the
hazardous waste determination.  Additionally, unwanted materials may not
be diluted after making the hazardous waste determination, except as
allowed by 40 CFR 268.3.  Because EPA's interpretation under Subpart K
is consistent with the commenter's suggested modification, EPA does not
believe that any modification is necessary.

With regard to the commenter’s second point, we agree with the
commenter that the hazardous waste determination must be made, in all
cases, before the hazardous wastes may be transported off-site.  This is
true regardless of whether the hazardous waste determination is made in
the laboratory, or at an on-site central accumulation area or on-site
TSDF.  We have modified the final regulatory language to make this
clearer and addressed this in the preamble to the final rule.

Comment: We heard from one commenter suggesting that the LMP be allowed
to include procedures whereby a RCRA-trained person can create a
one-time written documentation that specific streams are not considered
hazardous waste (Commenter No. 61).  The commenter believes this will
allow important efficiencies by avoiding unnecessary paperwork and
evaluations of materials determined to be non-hazardous.

Response:  In Part II of its LMP, an eligible academic entity is
required to describe its intended best practices for making hazardous
waste determination, including specifying the duties of the individuals
involved in the process.  Part II of the LMP is intended to include the
eligible academic entity’s best management practices and may include
the types of procedures that the commenter suggests.  It is important to
note that the eligible academic entity is responsible for making
accurate hazardous waste determinations, regardless of the procedures
used to make the hazardous waste determination.

Comment: We heard from one commenter stating section 262.215 should be
revised as follows, so as not to add additional requirements with
respect to material that is not solid or hazardous waste: “Unwanted
materials are not subject to this subpart until they are determined to
meet the definition of solid waste or hazardous waste by a RCRA trained
individual” (Commenter No. 79).

Response:  We disagree with the commenter.  On the contrary, all
unwanted materials are subject to Subpart K even if it is later
determined that they are not solid waste or hazardous waste.  Once the
hazardous waste determination is made, those unwanted materials that are
not solid wastes or hazardous wastes are no longer subject to Subpart K.

Comment: We heard from one commenter requesting clarification on the
requirements for making the various determinations for unwanted
materials at the central accumulation area or the on-site TSDF
(Commenter No. 107).  The commenter stated that, as provided in the
rule, the RCRA trained staff is required to determine if the unwanted
material is useable, is not solid waste, or is a hazardous waste.  The
commenter stated that, if the unwanted material is useable or is only
solid waste, no documentation or record of those determinations is
required.  If the unwanted material is hazardous waste, then additional
labeling is required.   The commenter asked if there should be a
requirement for the RCRA trained staff to document the useable and solid
waste.

Response:  In Part II of its LMP, an eligible academic entity is
required to describe its intended best practices for making hazardous
waste determination, including specifying the duties of the individuals
involved in the process.  While the contents of Part II of the LMP are
not enforceable, the regulations pertaining to making the hazardous
waste determination (i.e., 40 CFR 262.11, 262.209-262.212), are
enforceable.   These regulations require that the hazardous waste
determination must be made within four calendar days of arriving at an
on-site central accumulation area or TSDF.  If the unwanted material is
a hazardous waste, the words “hazardous waste” must be written on
the container label that is affixed or attached to the container.  If
the unwanted material is not a hazardous waste, it is not regulated
under the RCRA Subtitle C regulations.  In its LMP, however, an eligible
academic entity may choose to indicate on the container label that the
container’s contents have been examined and determined not to be a
hazardous waste (e.g., non-hazardous).

Comment: We heard from three commenters stating that material that may
otherwise be hazardous, but can be reused, is not considered a
“waste” and may be returned to a chemical stockroom or to another
user (Commenter Nos. 5, 77, 81).  The commenters asked EPA to clarify
this point.

Response:  It has always been the case under existing RCRA regulations,
and continues to be the case under Subpart K, that chemicals that are
fit for continued use are not solid or hazardous wastes (see §
261.2(e)(1)) and can be transferred between SAAs, laboratories, and
chemical stockrooms.  Under Subpart K, we realize that some chemicals
that are initially identified as unwanted materials will turn out not to
be solid or hazardous wastes.  If, for example, an unwanted material is
brought to an on-site CAA or TSDF for a hazardous waste determination,
and it is determined that such unwanted material can be reused, then it
is not a solid or hazardous waste and is not subject to Subpart K or the
Subtitle C hazardous waste regulations, once the determination is made.
That is, if a chemical is initially labeled as an unwanted material and
then it is subsequently discovered that it can continue to be used, the
chemical can be returned to a laboratory or chemical stockroom for
redistribution.  EPA selected the term “unwanted material” over
“laboratory waste,” in part to indicate that the material may still
be useable.

Comment: We heard from four commenters that disagreed with EPA’s
statement that under existing RCRA regulations the "hazardous waste
determination" must be made in the laboratory, at the point of
generation (Commenter Nos. 5, 43, 56, 58).  One commenter stated that it
is not aware of any language in the regulation that requires spent
material that is accumulated at the point of generation to be classified
in the satellite accumulation area and then be taken directly to a 90 or
180 day storage area (Commenter No. 5).  The commenter stated that the
only guidance in the RCRA regulation is for the quantity exceeding 55
gallons in a satellite accumulation area.  Another commenter stated that
the only determination required of the laboratory worker is whether or
not the material can be discarded as normal trash (Commenter No. 43).
The commenter referenced an Aug 16, 2002 memo from Ms. Cotsworth, cited
in the preamble, wherein: "The issue is whether a hazardous waste
determination must be made in the laboratory...EPA is not addressing
that question in this memo, but intends to address this question in a
future guidance or rulemaking."

Response:  We disagree with the commenters.  40 CFR 262.11 contains the
regulations for making the hazardous waste determination.  In addition
to the regulations, EPA has had a long-standing policy that the
hazardous waste determination must be made at the point of generation.
In fact, over the years colleges and universities have had enforcement
actions taken against them for neglecting to make the hazardous waste
determination at the point of generation.  We recognize that making the
hazardous waste determination at the point of generation has been
difficult due to the variable nature of wastes from laboratories, and
the fact that students are involved in generating many of the hazardous
wastes.  The recognition of this difficulty forms the basis for
undertaking this rulemaking.  The fact that EPA did not address this
question in the memo cited by the commenter is not an indication EPA had
not previously addressed the question of when and where to make a
hazardous waste determination.  It was merely an indication that it was
not included in that particular memo.

Comment: We heard from one commenter disagreeing with EPA’s discussion
that a hazardous waste determination can be simplified into several
basic steps (Commenter No. 5).  The commenter stated that the first step
(i.e., determining if the material is a solid waste) is not simple and
is open to many interpretations.

Response:  We were summarizing the regulations found in 40 CFR 262.11
for making the hazardous waste determination.  These regulations are
broken into four paragraphs, or “steps,” in the process.  We agree
with the commenter, that each of these steps can be complicated and did
not intent to suggest otherwise.

Comment: We heard from one commenter noting that section 262.215
provides that it is the determination of the RCRA trained individual
that removes a material from the definition of solid or hazardous waste
(Commenter No. 12).  The commenter expressed concern that this language
implies that a material is a solid or hazardous waste based on the
accuracy of the RCRA trained individual’s determination, not on
whether the material is in fact a solid or hazardous waste.  The
commenter asked EPA to revise this language by referring to the existing
hazardous waste determination provisions at 40 CFR 262.11

Response:  We agree with the commenter that the wording of the proposed
regulatory text implied that whether an unwanted material was a solid or
hazardous waste was up to the discretion of the RCRA-trained
professional, and did not depend on whether the unwanted material is, in
fact, a solid or hazardous waste.   This, of course, was not the intent
of the regulation, and we have revised the final regulatory text to make
our intent clearer.  The definitions of 40 CFR 261.2 and 261.3 determine
whether an unwanted material is a solid and hazardous waste,
respectively.  40 CFR 262.11, contains the process for making the
hazardous waste determination.

	11.2	Assignment of Hazardous Waste Codes

Comment: We heard from 26 commenters objecting to the requirement to
label hazardous waste containers with waste codes (Commenter Nos. 7, 8,
11, 16, 25, 31, 54, 58, 61, 69, 70, 71, 72, 73, 76, 79, 80, 81, 82, 85,
86, 91, 96, 101, 109, and 110).  These commenters stated that the
requirement is burdensome, unnecessary (e.g., it is of no value to
on-site personnel) and more stringent than existing RCRA regulations.
We heard from 15 commenters stating that the requirement should be
changed to require only that appropriate waste codes be associated with
the container before the hazardous waste may be transported off-site
(Commenter Nos. 11, 25, 54, 61, 69, 70, 72, 73, 80, 85, 86, 91, 96, 101,
109).  Commenters argued against the requirement that the hazardous
waste code(s) be placed on the container within four days of arriving at
the on-site CAA because this essentially would preclude these entities
from using vendors to make the hazardous waste determinations for them.
These commenters believe that placing the words “hazardous waste” on
the container is sufficient to indicate that a hazardous waste
determination has been made and that they should be allowed to delay
putting the hazardous waste code(s) on the container until the vendor
comes to ship the hazardous wastes off-site.  Additionally these
commenters pointed out that the majority of hazardous wastes generated
in a laboratory are lab-packed when they are transported off-site and
that putting the hazardous waste code(s) on the label that is affixed to
the container, then placing the container inside of a lab pack is of no
value because the hazardous waste code(s) would not be able to seen.
The commenters suggested allowing the hazardous waste code(s) to be
placed on the label that is “associated with the container” rather
than the label that is “affixed or physically accompanies the
container.”

Response:  We agree with these commenters that the practice of using
vendors to make the hazardous waste determination should not be limited
to those eligible academic entities that make the hazardous waste
determination in the laboratory.  Eligible academic entities that make
the hazardous waste determination in an on-site CAA or interim status or
permitted TSDF also should be able to use vendors to assist them with
their hazardous waste determination.  In today’s final rule;
therefore, the hazardous waste determination must still be made within
four calendar days of arriving at an on-site CAA or TSDF, and for those
unwanted materials that are hazardous waste, the words “hazardous
waste” still must be added to the label that is affixed or attached to
the container within those four calendar days.  We also continue to
require that hazardous waste code(s) must be added to the label that is
affixed or attached to the container.  However, in response to comments,
the Agency is amending the final rule so that eligible academic entities
may delay assigning the hazardous waste code(s) until immediately prior
to shipping the hazardous waste(s) off-site.  When containers of
unwanted materials arrive at an on-site CAA, they are subject to the CAA
regulations appropriate to the site’s generator status, including
dating of the containers to calculate the 90/180/270 days that the
containers may be accumulated on-site, and the container management
standards.  Likewise, when containers of unwanted materials arrive at an
on-site TSDF, the unwanted material becomes subject to the terms of the
facility’s hazardous waste permit or interim status, as soon as it
arrives.  Therefore, since the containers must be managed as hazardous
waste upon arriving at an on-site CAA or TSDF, we believe there is no
decrease in protection of human health and the environment by delaying
the addition of the hazardous waste code(s).

Since the final regulations have been revised so that the hazardous
waste code(s) do not need to be added until just before the hazardous
waste is transported off-site and since most containers will be
lab-packed, we agree that placing the hazardous waste code(s) on the
container label that is affixed or attached to the container provides no
value.  Therefore, we have revised the regulatory language in §§
262.210(b)(2), 262.211(e)(2), and 262.212(e)(2) to allow the appropriate
hazardous waste code(s) to be placed on the container label that is
associated with the container.  This will allow the practice of putting
hazardous waste code(s) on a packing slip or inventory list for a lab
pack to continue.

Comment: We heard from one commenter requesting that the post-hazardous
waste determination labeling and waste management requirements be
flexible to allow facilities to choose to use the same labeling
requirements for all hazardous wastes generated on their campus (i.e.,
laboratory and non-laboratory wastes) (Commenter No. 81).

Response:  Subpart K applies only to unwanted materials generated in the
laboratory.  Therefore, the hazardous waste determination for
non-laboratory hazardous wastes must continue to be made at the point of
generation.  Non-laboratory hazardous wastes that accumulate on-site
continue to be subject to the labeling requirements in 40 CFR 262.34(a)
for LQGs, 262.34(d) for SQGs, or 262.34(c) for hazardous wastes at SQGs
or LQGs in satellite accumulation areas.

Comment: We heard from one commenter expressing concern about the
wording of when the label with the hazardous waste codes must be applied
(Commenter No. 5).  The commenter notes that the proposal states,
“Once the RCRA-trained individual makes the determination, whether it
is in the laboratory or an on-site CAA or TSDF…”.  The commenter
stated that, under its governmental procedures, its determinations are
made in an office where information is available to assist in making the
determination, and the process may involve several days before the
information is taken back to the area where the chemicals are located.
The commenter stated that, depending on the definition of the term
“once,” its labs could be cited for not labeling in a timely manner
if there is a day or two between the knowledge of the classification of
a given container and the application of the label even though the time
interval was spent in the office classifying other material located in
the same workroom.

Response:  We are amending the final rule so that eligible academic
entities may delay assigning the hazardous waste code(s) until
immediately prior to shipping the hazardous waste(s) off-site.
Therefore, we believe the comment is now moot.

Comment: We heard from one commenter that described its process for
placing small containers into a larger secondary container, and asked
EPA to allow labs to place the label (e.g., waste codes, accumulation
start date) on the secondary containers instead of the smaller ones that
are inside (Commenter No. 5).  The commenter stated that a lab pack may
contain numerous, small containers.  Its practice is to label the
secondary container, accompanied by other descriptive paperwork.

Response:  Under the existing satellite accumulation area regulations,
we have interpreted the regulations to allow generators to place small
containers that are too small to label inside larger, secondary
containers and to label the secondary container instead of each
individual small container.  This has the added benefit of secondary
containment, should the small containers break.  Under Subpart K, this
also would be an acceptable practice.

	11.3	Four-Day Limit for Hazardous Waste Determination

Comment: We heard from 20 commenters expressing concern about the
four-day limit for making a hazardous waste determination at the CAA or
on-site TSDF and asking that it be extended (Commenter Nos. 5, 7, 8, 11,
25, 31, 43, 52, 60, 68, 69, 70, 73, 76, 77, 79, 86, 99, 107, 108).  The
commenters stated that four days is not a sufficient time for colleges
and universities to make hazardous waste determinations for their lab
waste, particularly for unknown materials, and the requirement is more
stringent than the existing regulations.

Response:  Given that (1) under existing regulations the hazardous waste
determination is required to be made at the point of generation and that
the Agency is providing considerable flexibility in Subpart K for where
and when to make the hazardous waste determination and (2) the initial
hazardous waste determination should be more straight forward without
the addition of the hazardous waste code(s), we are not providing
additional time.  Thus, under today’s final rule, the hazardous waste
determination must be made within four calendar days of arriving at an
on-site CAA or TSDF.

We recognize that, in some cases, chemicals will be managed in the
laboratory and that when those chemicals are eventually disposed, it may
not be possible to identify the chemicals.  This sometimes happens when
a researcher retires and leaves unlabeled chemicals behind.  In
addition, some laboratories synthesize new compounds as part of their
research.  When these “unknowns” are disposed of, it may not be
possible to make a hazardous waste determination without analysis.  As a
result, we have added a requirement that an eligible academic entity
must develop, in Part II of its LMP, procedures for the timely and
reliable characterization of unknown chemicals.  We did not believe it
was appropriate to extend the four day time limit for all instances, in
order to accommodate the more atypical instances of unknowns.

Comment:  We heard from one commenter suggesting a seven calendar day
time limit (Commenter No. 8).  We heard from one commenter suggesting a
two-week maximum time limit and the LMP should set the practical time
limit based on college or university-specific conditions (Commenter No.
7).  We heard from one commenter suggesting that the timeframe be
increased to 30 days (Commenter No. 79).  We heard from two commenters
asking for the timeframe to be left to the college or university
discretion (Commenter Nos. 68 and 108).  The commenters stated that a
college or university could document in its LMP the appropriate
timeframe for its hazardous waste determinations, taking relevant
considerations (e.g., relevant risks) into account.

Response:  Given that (1) under existing regulations the hazardous waste
determination is required to be made at the point of generation and that
the Agency is providing considerable flexibility in Subpart K for where
and when to make the hazardous waste determination and (2) the initial
hazardous waste determination should be more straight forward without
the addition of the hazardous waste code(s), we are not providing
additional time.  Thus, under today’s final rule, the hazardous waste
determination must be made within four calendar days of arriving at an
on-site CAA or TSDF.

Comment:  We heard from 11 commenters that the appropriate timeframe
should be anytime before the material is transferred off-site under the
90/180/270-day accumulation requirements (Commenter Nos. 11, 25, 31, 43,
60, 69, 70, 73, 77, 86, 99).

Response:  Although we are allowing eligible academic entities to delay
assigning the hazardous waste code(s) until immediately prior to
shipping the hazardous waste(s) off-site, we have retained the
requirement to make the hazardous waste determination within four
calendar days of arriving at an on-site central accumulation area or
TSDF.  Therefore, for those unwanted materials that are hazardous
wastes, the words “hazardous waste” still must be added to the label
that is affixed or attached to the container within those four calendar
days.  This is necessary to distinguish hazardous waste from
non-hazardous waste that may also be accumulating in the 90/180/270-day
area.

Comment: We heard from one commenter suggesting a four “working day”
limit (Commenter No. 76).  We heard from another commenter that it
should be spelled out in “business days,” not “calendar days”
(Commenter No. 79).

Response:  We believe that relying on “working days” or “business
days” would be confusing because not everyone shares the same
“working” or “business” days.  By relying on “calendar”
days, we are providing consistency and clarity in calculating the
timeframes within the rule.

Comment: We heard from one commenter suggesting 45 days is needed for it
to accommodate materials that require characterization (Commenter No.
107).

Response:  We recognize that, in some cases, chemicals will be managed
in the laboratory and that when those chemicals are eventually disposed,
it may not be possible to identify the chemicals.  This sometimes
happens when a researcher retires and leaves unlabeled chemicals behind.
 In addition, some laboratories synthesize new compounds as part of
their research.  When these “unknowns” are disposed of, it may not
be possible to make a hazardous waste determination without analysis.
As a result, we have added a requirement that an eligible academic
entity must develop, in Part II of its LMP, procedures for the timely
and reliable characterization of unknown chemicals.  We did not believe
it was appropriate to extend the four day time limit for all instances,
in order to accommodate the more atypical instances of unknowns.

Comment: We heard from one commenter stating that it needs 30 to 40 days
to classify its incoming materials collected from its government labs
(Commenter No. 5).  The commenter stated that this timeframe is in
addition to the 90-day accumulation clock.  The commenter stated that
the proposed rule would not provide it any relief because it only
provides four days from the time the material is removed from a lab.

Response:  This rule was never intended to extend on-site accumulation
times for generators in the manner suggested by the commenter.

Nevertheless, we understand the commenter’s concern and under the
final rule the initial hazardous waste determination should be more
straightforward without the addition of the hazardous waste code(s).
Thus, under the final rule, although the hazardous waste determination
must be made within four calendar days of arriving at an on-site CAA or
TSDF, eligible academic entities may delay assigning the hazardous waste
code(s) until immediately prior to shipping the hazardous waste(s)
off-site.

Comment: We heard from two commenters stating that it deems moot the
question of allowing four calendar days to do a hazardous waste
determination in the central accumulation area (Commenter No. 56, 58).
The commenter stated that the current regulations have already been
clearly interpreted to allow whatever time is needed so long as the
waste has been properly managed from the point of generation .

Response:  We disagree with the commenter and find the commenter’s
interpretation of the existing regulations regarding making the
hazardous waste determinations to be erroneous.  On the contrary, the
existing hazardous waste generator regulations have consistently been
interpreted to require that the hazardous waste determination be made at
the point of generation.

Comment: We heard from one commenter expressing support for the four-day
limit for making a hazardous waste determination at the CAA or on-site
TSDF (Commenter No. 71).

Response:  We thank the commenter for his/her support and have retained
requirement that the hazardous waste determination must be made for
unwanted materials within four calendar days of arriving at the on-site
central accumulation area or on-site TSDF.

Comment: We heard from six commenters stating that the four day
timeframe should be included in the 90/180-day accumulation time limit
(Commenter Nos. 8, 11, 58, 71, 79, 81).  One of the commenters expressed
concern that adding the four days to the 90/180-day timeframe would
prolong the process (Commenter No. 79).   Two commenters expressed
concern about the added administrative burden of a new dating
requirement (Commenter No. 8 and 71).  Another commenter stated that
inclusion of the four days within the 90/180 day timeframe would ensure
alignment with other hazardous wastes being accumulated (Commenter No.
81).

Response:  We agree with the commenters and under the final rule, the
four calendar days for making the hazardous waste determination is
included as part of the 90/180/270 days allowed for on-site accumulation
of hazardous wastes.  Therefore, under the final rule, a container’s
date of arrival at an on-site CAA will be used for two purposes:  (1)
calculating the four calendar days allotted for making the hazardous
waste determination and (2) calculating the maximum accumulation time in
the CAA.

Comment: We heard from two commenters stating that, if EPA agrees that
the determination can be made anytime before the waste is shipped
off-site, then it is moot whether the four day timeframe should be
included in the 90/180-day accumulation time limit (Commenter Nos. 11,
25).  They stated that the containers should be dated when they arrive
at the CAA or on-site TSDF and the 90/180-day clock should begin.

Response:  Although we have changed the final rule to allow eligible
academic entities to delay assigning the hazardous waste codes until
just prior to shipment off-site, the hazardous waste determination must
still be made within four calendar days of arriving at the on-site CAA
or on-site TSDF.  Therefore, under the final rule, a container’s date
of arrival at an on-site CAA will be used for two purposes:  (1)
calculating the four calendar days allotted for making the hazardous
waste determination and (2) calculating the maximum accumulation time in
the CAA.

Comment: We heard from two commenters stating that the four day
timeframe should not be included in the 90/180-day accumulation time
limit (Commenter Nos. 7 and 107).  One commenter stated that it would be
burdensome to “back-date” material accumulation dates and such dates
would be largely unenforceable (Commenter No. 7).  The other commenter
stated that the clock should not begin until the material is determined
to be hazardous waste (Commenter No. 107).  The commenter stated that a
second dating provision would be needed.

Response:  We disagree with the commenters and under the final rule, the
four calendar days allowed for making the hazardous waste determination
at an on-site accumulation area are included in the 90/180/270 days
allowed for accumulation.  This method requires only a single dating of
containers when they arrive in the on-site central accumulation area.
Under the commenters’ suggestion, it would be necessary to have a two
dating requirements:  one for calculating the four calendar days
allotted for making the hazardous waste determination and a second date
for calculating the maximum accumulation time in the CAA.  Having two
dates on a container would not only add burden but could be confusing to
both implementers and enforcers.  Therefore, under the final rule, a
single date is required upon arrival at an on-site CAA that will be used
for two purposes:  (1) calculating the four calendar days allotted for
making the hazardous waste determination and (2) calculating the maximum
accumulation time in the CAA.

Comment: We heard from two commenters expressing opposition to the
requirement to add an additional dating requirement for the four day
time limit (Commenter Nos. 11, 25).  The commenters believe the proposed
recordkeeping requirements are sufficient, and any additional
requirements will limit college or university participation.

Response:  We agree with the commenters and have not added an additional
dating requirement for determining the four day time limit for making
the hazardous waste determination.  Therefore, under the final rule,
there is a single dating requirement for containers arriving at an
on-site CAA.  A container’s date of arrival at an on-site CAA will be
used for two purposes:  (1) calculating the four calendar days allotted
for making the hazardous waste determination and (2) calculating the
maximum accumulation time in the CAA.

Comment: We heard from one commenter stating that the hazardous waste
determination should be made as soon as possible so the process
knowledge will not be lost (Commenter No. 66).  The commenter believes
that, if this is not possible, the waste should be labeled with chemical
mixture process knowledge before transfer to the CAA.

Response:  We agree with the commenter that the hazardous waste
determination should be made as soon as possible to avoid the loss of
process knowledge.  Therefore, we have maintained the requirement that
the hazardous waste determination be made within four days of arriving
at an on-site central accumulation area or on-site TSDF (or in the
laboratory before the unwanted materials are removed from the
laboratory).  We believe that the container labeling requirements are
sufficient to convey the necessary information to make proper hazardous
waste determinations.

12.0 	Laboratory Clean-outs

	12.1	General

Comment: We heard from 31 commenters expressing general or partial
support for the proposed clean-out provisions (Commenter Nos. 8, 11, 14,
17, 25, 37, 44, 51, 52, 56, 70, 71, 73, 74, 78, 84, 85, 99, 107, 108,
109, 111).

Response:  We thank the commenters for their support.  We continue to
believe that providing incentives for eligible academic entities to
remove “legacy chemicals” from laboratories is important for
improving the safety of laboratories and thereby protecting human health
and the environment.  We have maintained the laboratory clean-out
provisions in the final rule, although we have made some revisions from
the proposed laboratory clean-out provisions.

Comment: We heard from one commenter expressing general opposition to
the proposed clean-out provisions (Commenter No. 58).  The commenter
stated that it does not agree that colleges doing lab clean-outs should
be provided added additional time to get it done. The commenter does not
believe there is evidence that EPA’s intended encouragement of lab
clean-outs would actually be effective in its purported aim. The
commenter also believes the proposed counting exemption would become an
enforcement nightmare for inspectors attempting to determine dates of
waste generation to determine what wastes and quantities of wastes are
eligible for the exemption. The commenter stated that there is the
probability of colleges being a CESQG as a result of the clean-out
exemption and then being allowed to dispose the now CESQG wastes to
municipal solid waste landfills.  The commenter does not believe this is
in the best interests of the public or the environment and cannot be
characterized as promoting "safer management of laboratory hazardous
wastes."

Response:  We disagree with the commenter and believe that the
laboratory clean-out provisions are necessary to remove the regulatory
barriers that act as disincentives for conducting laboratory clean-outs.
 EPA has often been told that the current satellite accumulation area
regulations are a barrier to conducting clean-outs of laboratories.
Specifically, when laboratory clean-outs are conducted, it is likely
that more than 55 gallons of chemicals will be generated.  The existing
satellite accumulation area rules require that once 55 gallons of
hazardous waste (or 1 quart of acutely hazardous waste) is exceeded, the
excess of 55 gallons must be removed within three days.  Stakeholders
have told EPA that the current requirement to remove the excess of 55
gallons (or 1 quart of acutely hazardous waste) within three days is an
impediment to comprehensive laboratory clean-outs, because it does not
provide enough time to sort through and evaluate the many chemicals that
can be part of a laboratory clean-out.  EPA has been told that another
barrier to conducting laboratory clean-outs is the possibility that the
volume of hazardous waste generated during a laboratory clean-out would
be sufficient to change the entity’s generator status.  This change in
generator status would add additional regulatory burden, such as fewer
days for on-site accumulation in a central accumulation area, or a
requirement to have a contingency plan.  The result of these
disincentives, as EPA inspections and enforcement cases have revealed,
is that used and unused chemicals that are clearly no longer useable,
have in some cases remained in laboratories at academic institutions for
years and even decades.

We share the commenter’s concern that as a result of the laboratory
clean-out provision that allows some hazardous waste not to count toward
the eligible academic entity’s generator status, some eligible
academic entities that are typically CESQGs but would become either SQGs
or LQGs as a result of a laboratory clean-out (absent Subpart K), would
be able to maintain their CESQG status.  If this were the case,
hazardous wastes that should normally be managed as hazardous waste