(e) Comment: One state commented that the proposed episodic event requirements did not achieve the stated goal of providing greater program flexibility in that the requirements for CESQGs for an episodic event actually exceed the general SQG requirements in several instances, particularly notification and the 45-day time limit (214). Another state is concerned that the episodic generation provision is too cumbersome for generators to follow and comply with and too difficult for the states to monitor and enforce (217).Several commenters, while supportive of the concept of episodic generation events, stated that some of the proposed conditions were overly restrictive (241, 263). In particular, one commenter said the accumulation time limit and extension request procedures were too restrictive and argued that the Subpart K (alternative standards for managing hazardous waste at academic labs) model where a running 90-day average of waste generation volumes is used might be a better way to calculate waste generator classification (244).
(e) EPA Response: EPA's guide in structuring the episodic generation provisions was to ensure management of the hazardous waste that was protective of human health and the environment. EPA considers the final conditions for management of the hazardous waste, notification, and recordkeeping necessary to ensure safe management of hazardous waste under the episodic generation provision. EPA received significant positive comment on this provision and is finalizing it with some changes, but does not consider the conditions in the final rule to be overly cumbersome or restrictive. EPA has extended the basic duration of an episodic event to sixty days to accommodate comments regarding the usefulness of the provision to generators, but also notes that a generator would have to option to operate under episodic generation or to operate as an SQG if it believes that is a better option for management of hazardous waste. In addition, EPA has removed one of the proposed petitions to be handled by EPA or the authorized state (the extension of an episodic event), which will simplify implementation of the provision by the states. EPA has determined that it is not appropriate to generally revise the long-standing method for classifying monthly generator status in the RCRA regulations to a 90-day average from being based on the monthly generation levels, as described in the RCRA statute.
(f) Comment: One commenter stated that the regulatory language in 262.14(e) should reference the generation or the generation and accumulation of hazardous waste in accordance with subpart L instead of just the accumulation of hazardous waste.
(f) EPA Response: EPA agrees with the commenter and has made this revision in the final rule.
(g) Comment: One commenter suggested that EPA revise the episodic generation provision to allow for greater accumulation of hazardous waste even if the levels of monthly generation are not higher than those limits in the definition of each generator type. (0103)
(g) EPA Response: EPA is not making this change in the final rule. EPA has determined that levels of accumulation that exceed that exceed the limits for a generator category without higher than normal levels of generation would only occur if the generator is stockpiling the hazardous waste on site rather than transporting it to a RCRA-designated facility. The purpose of this provision is to facilitate the timely transportation of hazardous waste from generators to facilities where they can be treated, recycled, or disposed, not to allow long periods of accumulation at the generator site and, therefore, EPA does not find this revision to be appropriate.
(h) Comment: One commenter stated that they generally support the idea of episodic generation but have concerns about the provision being used by facilities storing waste illegally to potentially thwart enforcement action. The commenter stated that the proposed rules do not speak to situations where excess hazardous waste is already on site, potentially using an episodic event as a way to remove long-accumulated hazardous waste. (0108)
(h) EPA Response: EPA agrees that the episodic generation provisions should not be used in a way that prevents enforcement against a facility that has been operating as an illegal TSDF. The conditions that EPA has attached to the episodic generation provision are designed to protect against such abuse by requiring prior notification to the implementing agency of any impending planned event and notification within 72 hours of any unplanned event. In addition, the hazardous waste generated as part of the event must be labelled as episodic hazardous waste and with the date of the start of the event. These requirements are designed to prevent abuse such as the commenter described.
(i) Comment: One commenter asked about the structure of the regulations in part 262 subpart L for episodic generators and what regulations are applicable if a generator fails to meet the requirements for episodic generation. (0178)
(i) EPA Response: The episodic generation provision is a conditional exemption that allows the generator to maintain its current regulatory category when it meets the conditions. Therefore, if the conditions are not met but the generation levels of the status in which the generator has been operating are exceeded, then the generator is not complying with those generator conditions for exemption and technically is in violation of the permitting requirements.
(j) Comment: One commenter stated that proposed 262.16(c)(2) should be revised to include an option for SQGs that mix hazardous waste and non-hazardous waste to use Subpart L if they exceed their generation limit. (0217)
(j) EPA Response: EPA is not adding a reference to subpart L into section 262.16(c)(2). The mixture provisions have been revised in the final rule and now appear in 262.13. EPA does have a reference to part 262 subpart L in the small quantity generator regulations at 262.16(f).
(k) Comment: One commenter stated that they believe that the episodic generation provisions should be revised to require that the episodic generator's hazardous waste requirements during the episodic event are based on the amount of hazardous waste generated in the event. For example, if a VSQG generates more than 1000 kg of hazardous waste in a month as a result of the episodic event, it would have to follow the standards in proposed § 262.232(b) rather than § 262.232(a). The commenter argued that this approach would be more protective. (0178)
(k) EPA Response: EPA is not revising the final rule based on this comment. The commenter's suggestions would complicate the episodic generation provision and require the generators to keep track of their monthly generation of waste in the episodic event to determine which management provisions to operate under. The episodic event provisions are designed to simplify the regulations for generators going through an irregular event. EPA has determined that the provisions for management of wastes by VSQGs operating under an episodic event -- marking and labeling and managing in closed containers that are in good condition and compatible with the hazardous waste being accumulated therein and in tanks that are in good condition, are compatible with the hazardous waste accumulated therein, and that have procedures in place to prevent the overflow -- are protective for the management of hazardous waste for the limited duration of the episodic event.

Section 6.1 - Need for provision

All comments organized to this section of the comment outline are responded to under Issue 6.

Section 6.2 - One event per year

(a) Comment: The comments EPA received on this aspect of the proposal argued for a wide variety of options. Some commenters suggested that two events per year should be allowed (77, 107, 129, 138), some suggested allowing a petition for a third (87, 113,131, 224) and one commenter supported allowing up to three episodic events in a year provided the generator has a standing agreement with a facility to accept the waste (171). Another commenter supported allowing 2-3 events per year (192). Some of the commenters who supported two events per year noted that then facilities could plan one event per year and still take advantage of the episodic generation provisions if a second unplanned event occurred (129, 201, 240). However, many of the commenters, including several of the states, supported limiting the episodic generation provision to one event per calendar year (126). Of the commenters who supported one event per year, some argued that there should be no possibility for a second event (182, 217, 223, 248) while others argued that the proposed one event and a petition was appropriate (134, 163, 181, 217, 243) at a minimum (192). One state also suggested that the implementing agency should examine the causes of each event at each generator and determine if the episodic event could be held.
(a) EPA Response: EPA is finalizing the episodic generation provision with conditions stating that a VSQG or an SQG may exceed its generator category limits only once per calendar year without affecting its generator category, with the opportunity to petition EPA for a second event. In addition, EPA has determined that it is appropriate to allow a facility to petition for a second event in a calendar year under certain circumstances. A generator can have one planned and one unplanned event in the calendar year under these regulations.
EPA has several reasons for finalizing the provision in this way in the final rule. First, if a VSQG or SQG exceeds its generator category limits more frequently than once per calendar year, EPA is concerned that these generators are more likely to be routinely generating greater amounts of hazardous waste and thus it is more appropriate for the generator to comply with the regulations applicable to the higher generator category, at least for the months they exceed the quantity limits for their generator category. In particular, if EPA were to allow up to three episodic events of 60 days each, that would account for approximately half of a year, which would not indicate episodic events. EPA is allowing the petition for a second event to allow for the infrequent unplanned event, such as a storm that causes releases of hazardous waste or a spill. Second, EPA believes most hazardous waste generators experience an episodic event infrequently, such as once every few years, and these events are typically planned maintenance projects. Third, the Agency is not limiting an episodic event to a single project within the generator's facility. In fact, a generator could start and complete multiple projects (e.g., a small demolition project, a tank cleanout, and removal of excess chemicals) at different dates within the 60-day time limit, so long as all projects are completed within the 60-day start and end dates identified on the notification form. Under that scenario, all hazardous waste generated would be considered part of the same episodic event.
Regarding oversight of episodic events, EPA is not finalizing a requirement that the state review and approve the first episodic event at a generator in a year, though the second event must be petitioned for and approved. States implementing the RCRA program do have the option to be more stringent and could include this in their state programs.
(b) Comment: Some commenters requested EPA clarify that the limit of one episodic event per year applies to each physical site where the waste is generated and not the entire company (93, 120, 149). One commenter also asked that EPA clarify that multiple waste streams can be generated during a single remediation, which would be considered a single episode (120).
(b) EPA Response: EPA is clarifying that the episodic generation events are per facility as generator is defined in §260.10 as "any person, by site, whose act or process produces hazardous waste identified or listed in Part 261 or whose act first causes a hazardous waste to become subject to regulation." Furthermore, EPA clarifies that different waste streams can be generated in a single episodic event.
(c) Comment: One commenter suggested that the episodic generator provisions could be administered on a rolling calendar basis, which would prevent generators from bunching episodic events and circumventing the RCRA LQG standards (240).
(c) EPA Response: EPA is limiting episodic events to one planned event in a calendar year and one unplanned event in the same calendar year. The provision requires that the generator must petition EPA or the authorized state for the second of the two events. EPA is relying on the calendar year as a time frame for the episodic events and believes that an alternate system that relies on a rolling calendar or other standard would be a complication not necessary for protecting human health and the environment under this provision.

Section 6.3 - Petition process for second event

(a) Comment: Many commenters were in favor of two or more episodic generation events per year while others supported one event per year with the option of petitioning for a second event. One commenter specifically supported allowing generators to petition EPA or the authorized state requesting they be allowed an additional episodic event in a calendar year without having to comply with the higher generator standards (192). One commenter requested EPA provide a specific timeframe for the regulator to respond to the petition request and clarification on what actions a generator must take when a request is denied and/or is delayed by the regulatory agency (93). One state asked EPA to clarify whether a facility could request a second episodic event in a year and/or a 30-day extension to the event (217). Two states did not support the idea of allowing a petition for a second episodic event in a year (223, 248).
(a) EPA Response: While the Agency believes that most generators will experience an episodic event infrequently, we also recognize that there may be situations, often unexpected, where a hazardous waste generator may have more than one episodic event within a calendar year, such as an unexpected product recall, a major spill, or an act of nature. Therefore, the Agency is finalizing a provision to allow VSQGs and SQGs to petition EPA for permission to manage one additional planned or unplanned episodic event per year without impacting the hazardous waste generator category (provided that they do not have two of the same type of event within the same calendar year).
EPA proposed that VSQGs and SQGs could petition EPA for permission regarding an additional episodic event per year, either planned or unplanned, potentially resulting in two planned or two unplanned events at a facility in a year. However, in response to some of the comments from states that implement the RCRA program, EPA has determined that it is most appropriate to allow only one event of each type per year and to require the generator to petition EPA for the second event and be approved. That is, if a generator holds a planned event early in the year, it can petition EPA or the authorized state for an unplanned event later in the year if needed. For instance, if the generator has already held a planned episodic event in a year, a planned second 60-day event in the course of the year could indicate that the generator should be operating at a higher generator category. However, a generator that is truly a VSQG or SQG could have an occasion where it has performed a clean out or system shut down already during the year and then an act of nature or other truly unplanned event occurs. EPA would not expect this to be a regular occurrence for generators and will depend on the implementing agencies operating the RCRA programs to take note and act accordingly if a generator is regularly requesting a second episodic event.
In parallel fashion, if the generator has an unplanned event early in the year, it can still petition EPA to hold a planned event later in the year. At the same time, a generator may be planning to conduct an episodic event such as a tank clean out or maintenance project late in the year when it gets struck with a hurricane that can be managed as an unplanned episodic event for hazardous waste. In this case, the generator can hold an episodic event to respond to the storm and then petition EPA for a second event for the cleanout, while explaining that it needs the second event because of the occurrence of the storm earlier in the year.
In both cases, EPA must approve the petition for a second event. EPA wants to allow for the case of a second event, in cases where the generator is legitimately having episodic events, but has determined that not allowing a generator to hold two planned events in a year ensures that the provision is being used for true cases of episodic generation and not as a way for generators to regularly avoid managing hazardous waste at higher generator categories. Similarly, EPA has determined that not allowing the generator to hold two unplanned events in one year will ensure that the episodic generation provision is not used in a way that creates an incentive for irresponsible management of hazardous waste. Because a petition for a second event distinguishes between an unplanned event and a planned event, EPA added definitions of planned episodic event and unplanned episodic event to the regulations in subpart L.
EPA also believes that limiting the type of event that a generator can petition for will reduce the numbers of petitions submitted as a part of this provision, which is responsive to some of the comments received by states concerned about increased workload. EPA is not finalizing a time frame for states to respond to petitions for second episodic events, having determined that it is not appropriate to finalize this provision with a condition that could result in automatic approvals of petitions. EPA expects that the revisions to the proposal will decrease the number of petitions from generators to EPA or authorized states for second episodic events.
EPA also notes that it has not finalized the petition to extend the event duration, instead revising the duration of an episodic event to 60 days. In addition, EPA is not promulgating criteria for evaluating petitions for a second unplanned episodic event, but recommends that the implementing agency base its decision on factors including the validity of the proposed episodic event, the generator's enforcement history and evidence of the generator's ability to responsibly manage the waste. EPA did not receive any comments on criteria to use for evaluating petitions and believes they are best done on a case-by-case basis.

Section 6.4 - Notification

(a) Comment: Some commenters were concerned that they didn't know the purpose of notification and stated that if EPA was going to put an additional burden on the regulated community, EPA needed to demonstrate what the benefit is (73, 154). Other commenters argued that notification seems unduly burdensome to both the generator and the regulator and that on-site recordkeeping should be sufficient (81, 138, 182, 217). One commenter asked EPA to consider ways to recognize episodic generator status to alleviate the need to re-notify (121). MPCA stated that it does not support the notification requirement and thinks EPA has underestimated the number of "over-generation" events. MPCA argued it does not have the resources to appropriately handle the notifications and does not see a specific environmental protection purpose (232). Some of the comments on the notification provision singled out the notification for an unplanned episodic event as difficult to meet (93, 98, 117, 120, 149, 165, 168, 177, 213, 224, 240, 241). Most of these commenters stated that 24 hours is an insufficient time frame and did not mention EPA's addition of the phrase "or as soon as possible" in the proposal. Commenters noted that in the case of an unplanned event, the generator may not know if the waste is hazardous or if there is enough hazardous waste to make an episodic event necessary. Commenters suggested alternative approaches that included allowing longer time frames for notification, including 72 hours, 7 days or 30 days or simply "as soon as possible." Another suggested approach was to require notification 24 hours after a waste determination was made (177). EPA also heard that having a specific time frame in which the notification must be made is critical for making the requirement enforceable by the states. Other commenters agreed with the notification condition, stating that it was reasonable and necessary to ensure the provision is not used as a loophole for a generator to avoid day-to-day waste management practices (181, 243, 248). One commenter asked what the mechanism for the notification was. (0142)
(a) EPA Response: EPA disagrees that there is little to be gained from notification and, instead, has determined that it is critical to the enforceability of this provision and for the states to oversee the hazardous waste activity under their authority. The notification must be made with the EPA Site ID form (EPA Form 8700-12). Electronic versions of this form are acceptable if the state can accept them. Without a notification requirement for episodic waste, a generator could potentially operate as if under an episodic event at all times, changing the starting date, so that during any given inspection, it appears as though there is an episodic event on site. EPA does not expect that many generators would manage hazardous waste in this way, but the regulations must include checks and balances to prevent such abuse and the notification requirement is one way to allow the implementing agencies to follow up in person if such action is warranted.
Regarding the notification for an unplanned event, in response to the comments stating that EPA's proposal would be difficult to comply with in an emergency situation, EPA has revised this condition in the final rule. In the case of an unplanned episodic event, a generator has 72 hours to notify EPA or the authorized state via phone or email, and then must subsequently submit EPA Form 8700 - 12 (Site ID form) with the same information laid out above for a planned event. In the case of spills of hazardous materials, a 72-hour time frame for reporting the spill to the authorities is common and allows the facility some time to evaluate the situation before requesting the episodic event. A facility would have to wait for EPA to respond to the petition for a second event, but this should not impact the initial steps that the generator has to take to appropriately manage the hazardous waste since those standards still apply. EPA has determined that it is reasonable, however, to adjust the time frame for initial notification to EPA of an unplanned episodic event by phone, email, or fax within 72 hours from when the event begins. EPA believes that this adjustment provides the generator with some additional time in case there is a necessary delay in contacting EPA due to emergency conditions, but does think that a timely notification to the Agency is important in the case of unplanned events at the generator to ensure proper oversight. A 72-hour limit ensures that timely notification.
EPA also is not finalizing the language "or as soon as possible" in the final rule, to provide an exact time frame in which the notification must occur, as the commenters requested.
(b) Comment: One commenter noted a concern with the proposed language of §262.232(a)(2), which would require an SQG to report on Form 8700-12 the name of the emergency coordinator to EPA. The commenter notes that under the current regulations, SQGs are not required to report the name of the emergency coordinator to EPA and that the episodic generation provisions should not be more stringent than current SQG requirements (256).
(b) EPA Response: EPA has determined that in the case of an episodic event at a generator, in which a facility is generating more hazardous waste than usual, it is appropriate for those operations to be taking place under the watch of an identified emergency coordinator for the sake of protectiveness of human health and the environment. The VSQG experiencing an episodic event could be generating SQG levels of hazardous waste during the event, but could also be generating LQG levels of hazardous waste and the identity of an emergency coordinator is an important item to be included in the notification to EPA. EPA is finalizing this condition of the provision.
(c) Comment: One commenter stated that requiring CESQGs to notify and obtain an EPA ID number was particularly burdensome and may serve as a deterrent to using the episodic generation provisions and suggested removing them (262).
(c) EPA Response: Similarly to the comment above regarding an emergency coordinator, EPA believes that the notification to EPA and the subsequent receipt of an EPA ID number is a critical piece in ensuring that there is appropriate oversight for these generating facilities that are generating higher levels of hazardous waste than typical. Without notification, EPA cannot ensure that the generator is keeping to the limit of episodic events in the regulations. EPA is finalizing the condition that CESQGs notify and obtain an EPA ID number.
(d) Comment: A couple states requested clarification on whether the notification for episodic events is applicable to emergencies and temporary one-time cleanups or just active registered episodic generators (112, 214).
(d) EPA Response: The notification for episodic events is only valid for meeting the RCRA requirements for holding an episodic generation event. Other notification requirements, such as those under EPCRA or notifications to the National Response Center are not being replaced and still must be complied with.
(e) Comment: One commenter stated that episodic generators do not need to get full permanent EPA ID numbers for the case of an episodic event and pointed out that their state uses a provisional or temporary ID for these situations. (0178)
(e) EPA Response: If an authorized state RCRA program already addresses similar situations to the ones described by the Episodic Event provisions with an alternate system of provisional EPA ID numbers that works for that state and is at least equally stringent to the federal program, EPA does not intend to interfere with this system in the implementation of part 262 subpart L.
(f) Comment: One commenter asked how notification information will be disseminated from EPA to state and local regulatory agencies in a timely manner. (0196)
(f) EPA Response: Although EPA's proposed and final regulations state that the notification would go to EPA, when a state is authorized, the state revises those regulations to mandate that notifications go to the state and all authorized states manage the data from EPA Form 8700-12 themselves. EPA expects that whatever systems are currently in place between state and local governments for the dissemination of information from the Site ID Form will be used to pass along information about episodic generators as well.

Section 6.4.1 - Notify 30 days before planned event

(a) Comment: One commenter questioned the need for prior notification of a planned episodic event and suggested annual reporting using EPA Form 8700-12. This commenter was concerned that the generator would not be able to notify until after a decision had been made to dispose of unwanted materials and characterize and quantify the amount of hazardous waste within the stock (254). Another commenter had a similar concern in that it's not always possible for a CESQG or SQG planning a special project to anticipate generating an amount of waste that would not cause an exceedance or vice versa. This commenter urged EPA not to require prior notification or, at a minimum, to allow a generator to withdraw a notification if it can document the planned episodic event did not occur (257). Florida DEP gave an example of a CESQG cleaning out a tank of hazardous waste and filling 3 55-gallon drums, one on July 20, one on August 31, and the last drum on September 1 and asked how an inspector would know when the waste was generated if the CESQG did not notify of an episodic event (214). Another commenter was concerned that there are no provisions to change the start and end date if the start date of a planned event is significantly delayed for unforeseen circumstances (131).
(a) EPA Response: As explained above, EPA has determined that a generator must notify if they are going to use the episodic generation provisions to remain in a lower generator category. If a generator finds that it notifies of an event and then it turns out that the material in question is not hazardous waste or does not in fact top the limit for the generator's category, the generator can work with EPA or the state by explaining that the event was not necessary after all. Under the previous regulations, that generator would have to manage the excess generated material as hazardous waste until it is determined not to be, which would have included a notification of a higher generator category, so the requirement being finalized is not an additional burden. Similarly, if the start date of an episodic event is delayed, the generator can work with EPA or the authorized state to revise the notification to the correct date. Florida DEP's hypothetical example explains why notification is important so that a facility can show that it is complying with the episodic generator provisions and not in violation of the higher generator category standards.

Section 6.4.2 - Notify as soon as possible for unplanned event

(a) Comment: Several commenters objected to the requirement to notify EPA within 24 hours of an unplanned episodic event for a variety of reasons. USWAG and others stated that this would be extremely difficult because the facility may not know at the time whether the material generated during the event is considered hazardous and it can take several days to a few weeks to receive the results of analysis. They suggested modifying the notification requirement for unplanned events to be anywhere from within 24 hours to 7 days to 30 days of determining the materials are hazardous waste (93, 98, 120, 149, 168, 177, 213, 241). One commenter simply stated that since the event is unplanned, recording the date when it began is not always possible (165). Another commenter noted that this timeframe is unrealistically short and suggested 3 business days (117). Another commenter recommended making this requirement match the National Response Center's (NRC) requirement for reporting incidents as soon as possible but no later than 72 hours (240). Others mentioned the "as soon as possible" language as helpful but were concerned that the 24-hour reference would set unreasonable expectations or it wouldn't be clear that "as soon as possible" means more than 24 hours could pass before notification (168, 224).
(a) EPA Response: EPA understands that in the case of an unplanned episodic event, a generator will have competing priorities, particularly if a spill has occurred. However, the notification requirement for the episodic generation provision is critical in maintaining the appropriate levels of oversight for the generators taking advantage of this provision. EPA determined that it would not be appropriate to base the time frame for notification on when a waste determination is made, as that would not be parallel to any other area of the generator program and would be difficult to enforce. In addition, EPA found that the suggestions for the notification time limit to be lengthened to 7 or 30 days would result in excessive delays between the start of an episodic event and notification to EPA, compromising the ability to provide adequate oversight.
However, in response to the comments stating that EPA's proposal would be difficult to comply with in an emergency situation, EPA has revised this condition in the final rule. In the case of an unplanned episodic event, a generator has 72 hours to notify EPA or the authorized state via phone or email, and then must subsequently submit EPA Form 8700 - 12 (Site ID form) with the same information laid out above for a planned event. In the case of spills of hazardous materials, a 72-hour time frame for reporting the spill to the authorities is common and allows the facility some time to evaluate the situation before requesting the episodic event. A facility would have to wait for EPA to respond to the petition for a second event, but this should not impact the initial steps that the generator has to take to appropriately manage the hazardous waste since those standards still apply. EPA has determined that it is reasonable, however, to adjust the time frame for initial notification to EPA of an unplanned episodic event by phone, email, or fax within 72 hours from when the event begins.
(b) Comment: Some commenters asked for clarification on the requirement to provide notice within 24 hours of an unplanned episodic event. The Texas Commission on Environmental Quality (TCEQ) asked who is to be notified, what format should be used, and whether this notification is the same or different from notice of an emergency response? (112). One commenter noted that the preamble proposed to allow 24 hours for the facility to notify EPA of an additional unplanned release but the proposed regulatory language did not (192). The Florida Department of Environmental Protection stated that the 24-hour timeframe was reasonable for "release" events but not clear with respect to other events, such as a renovation project (214).
(b) EPA Response: EPA has made revisions to this condition in the final rule in response to comments. As mentioned above, EPA has revised the time limit for notification to 72 hours to allow time for competing priorities in an emergency but still to be a timely notification. In addition, EPA has stated clearly in the preamble, that if there is a change in the details of the event or if an event proves to not actually generate more waste than the monthly generation limit for the facility, the generator should work with EPA or the authorized state, as appropriate, to revise or withdraw the episodic event. EPA has also revised the regulatory text to clarify that a notification of an unplanned event should take the form of phone, email, or fax and should be followed up by submittal of the Site ID form (EPA Form 8700-12) with the necessary information.
Section 6.4.3 - VSQG must notify fire department

(a) Comment: The few commenters on this provision were not in favor of it. The commenters stated that the notification requirement was excessive and would be an unnecessary burden to both the VSQGs and to the fire departments that would have received the notifications. The commenters also stated that the fire department is not the appropriate authority for RCRA compliance (96, 107, 192, 214, 232). Another commenter asked for clarification on this proposed requirement, particularly the form and documentation required for notification (213).
(a) EPA Response: EPA did not receive support in the public comments for this proposal. Commenters on this provision included both industry stakeholders and state agencies. Therefore, EPA is not finalizing this notification requirement as part of subpart L.

Section 6.4.4 - Other

There are no comments organized to this section of the comment outline.

Section 6.5 - VSQGs must get EPA ID#

(a) Comment: A couple commenters said that having a CESQG get an EPA ID number was excessive and would create confusion since they are not normally regulated (165, 262). Some commenters asked for clarification on whether all CESQGs would need to get an EPA ID number or just those experiencing an episodic event (112, 235). One commenter also asked if there would be a way to distinguish those generators that are only notifying as an episodic generator from regular notifications (112). At least two states disagreed with the statement that generators couldn't initiate a shipment to a RCRA TSDF without an EPA ID number and noted that many TSDFs routinely fill in "CESQG" instead of an EPA ID number or are assigned a state generated number that is not equivalent to an EPA ID number (214, 232). Other states supported the requirement for VSQGs to obtain EPA ID numbers (232, 248), with one noting they have required it for their VSQGs since 1987. They have observed it to be only a minimal burden to generators and a small but reasonable burden to the regulatory agencies (232). The other state asked for clarification on how long the VSQG would need to continue to maintain its EPA ID number after the episode is completed (248). One commenter asked for more details on the availability of an electronic portal for obtaining the EPA ID numbers since one is not available now and it would help with timing issues, particularly for weekends (240).
(a) EPA Response: EPA has determined that the notification to EPA and the subsequent receipt of an EPA ID number is a critical piece in ensuring that there is appropriate oversight for these generating facilities that are generating higher levels of hazardous waste than typical (VSQGs who are not operating under the episodic generation provisions of part 262 subpart L do not need to obtain an EPA ID number). EPA disagrees that this requirement is excessive, confusing, or unnecessary. Without notification, EPA cannot ensure that the generator is keeping to the limit of episodic events in the regulations. Therefore, EPA is finalizing the condition that VSQGs notify and obtain an EPA ID number. If a VSQG that has notified in order to carry out an episodic event wants to remove its ID from the system or otherwise revise its notification, it should work with the authorized state, but should be aware that if it needs another episodic event in the future, it would have to have an EPA ID number. How episodic generators are identified on the form and in the database system will depend on the exact nature of the revisions that are made as a result of this rulemaking and will be rolled out in the change process for those forms. In addition, EPA is working to make electronic reporting more prevalent in its processes, but those changes are not a part of this rulemaking.
(b) Comment: One commenter asked for further details about the availability of an electronic portal for submissions of the Site ID form. (0240)
(b) EPA Response: This rulemaking is not a venue for any action on electronic submissions for EPA forms. EPA is developing an electronic submittal system, but the Site ID forms are managed by the authorized states and the ability for the submittals to be made electronically will depend on the availability of those capabilities by the states.

Section 6.6 - Accumulation standards for VSQGs

(a) Comment: Two states expressed support for the proposed container and tank management requirements for VSQGs and SQGs using the episodic generation provisions (145, 232). Another commenter said that the physical equipment would not always be available or possible, especially for VSQGs (165).
(a) EPA Response: EPA is finalizing that a VSQG generating episodic hazardous waste that would otherwise cause the VSQG to exceed its generator category limit for the calendar month must comply with the following accumulation standards for containers and tanks that manage the episodic wastes. EPA believes these standards are necessary because the quantity of hazardous waste that is accumulated during this episodic period requires standards for safe management in order to adequately protect human health and the environment. Generators must safely manage the hazardous wastes being generated and these standards exist to ensure this safe management. As for the comment concerning the lack of physical equipment for VSQGs, VSQGs will need to make any arrangements to ensure the availability of any physical equipment that is necessary to meet this requirement.
(b) Comment: Several commenters argued that it was reasonable to prohibit VSQGs from conducting on-site treatment of episodic waste, although one state would allow elementary neutralization. One commenter noted that even if VSQGs are sophisticated facilities with the capability to safely treat, EPA must design the regulations to be protective and not based solely on the most sophisticated actors. If a sophisticated VSQG wants to perform generator treatment, it can choose to operate as an SQG and meet the standards that apply to that category (82, 112, 145, 217). Other commenters encouraged EPA to allow VSQGs to treat their episodic waste onsite per the additional requirements of the episodic generator provisions if they have the expertise (92, 93, 126, 182, 188, 213, 214, 216, 248). One commenter stated that VSQGs should be allowed to treat as part of episodic events because treatment is allowed under 261.5(f) and (g) for generators. (0214)
(b) EPA Response: After considering the comments on treatment by VSQGs managing hazardous waste under an episodic event, EPA has determined that VSQGs may not treat hazardous waste on site under an episodic event. Although VSQGs must meet some additional waste management requirements for an episodic event, the provisions allowing treatment by SQGs and LQGs in containers and tanks were based on those containers meeting the more extensive standards that containers and tanks at TSDFs must meet in subparts I and J of parts 264 and 265. These same standards still apply to SQGs and LQGs, though they have been copied into part 262 as a part of the reorganization in this final rule. However, under the episodic generation provisions, VSQGs holding an episodic event do not have to meet these same standards for waste management -- they must meet a performance standard instead. EPA believes that the performance standard is appropriate for accumulating that waste on site for 60 days or less until it is sent offsite for treatment or disposal, but is not appropriate for treatment onsite by the VSQG.
Regarding the standards in 261.5(f) and (g) that mention treatment by VSQGs, EPA believes that it is clear that the statement at 261.5(f)(3) and the corresponding statement in 261.5(g) that say, "a conditionally exempt small quantity generator may either treat or dispose of his hazardous waste in an on-site facility or ensure delivery to an off-site TSDF..." refers not to generator treatment in containers, as EPA is discussing in this section, but instead to treatment or recycling of the hazardous waste that would be akin to waste management. For example, if a permitted Subtitle C landfill or a permitted RCRA treatment facility was also a VSQG, this phrase about treating or disposing on-site would apply to them. It is clear that this language is not saying that any VSQG can treat or dispose of its hazardous waste on-site without any other restrictions.
(c) Comment: VSQGs exceeding generation limit during normal operations -- EPA received some comments stating that a VSQG that does not discover until the end of the month that it has exceeded its threshold for generation of hazardous waste as a VSQG would have difficulty complying with the episodic generation provision because of the notification requirements (0168, 0233)
(c) EPA Response: EPA would not consider the situation described by the commenters to be a case of an episodic event because the VSQG in this case is exceeding its generation limit in the course of normal operations. An episodic event is an activity that does not occur within normal operations that causes the generator to exceed its normal limit.
(d) Comment: One state commented that if a generator is managing episodic hazardous waste in tanks, it may be a good idea for those tanks to meet some or all of the LQG requirements for tanks (i.e., certification by a P.E., secondary containment, and the air emission standards) (217).
(d) EPA Response: EPA has determined that in the case of episodic events, the standards in the final rule for management of hazardous waste in tanks are sufficient to protect human health and the environment. SQGs must meet the typical SQGs standards for tanks and VSQGs must meet a performance standard, inspect the tanks daily, and have procedures to prevent overflow. In the case of an episodic event, a tank will hold hazardous waste for a very limited period of time before the waste is removed and shipped off-site and EPA has determined more proscriptive standards are not necessary for waste accumulation during that limited window.

Section 6.7 - VSQG must manifest and send to a RCRA TSDF

(a) Comment: Some commenters agreed that a VSQG should have to dispose of their episodic hazardous waste at a RCRA-designated facility (i.e., a RCRA-permitted TSDF) (132, 134, 181, 185, 243). One state government said they agreed that VSQGs must use manifests for shipment of the episodic waste (248).
(a) EPA determined that it is appropriate for VSQGs holding an episodic event and operating under the provisions of subpart L to manifest the hazardous waste generated from the episodic event and send it to a RCRA-designated facility. Generally, VSQGs are not required to manifest their hazardous waste to a RCRA-designated facility, but can ship them without a manifest to one of eight types of facilities listed in § 262.14(a)(5). However, because the VSQG will be generating quantities of hazardous waste that exceed its normal generator category thresholds, the Agency has determined that the use of a hazardous waste manifest and the shipment of the hazardous waste to a RCRA-designated facility is most protective of human health and the environment.
However, the condition to manifest the hazardous waste and send it off site to a RCRA-designated facility only applies to the hazardous waste generated as a result of the episodic event. The condition does not apply to other hazardous waste generated at the same time as, but separately from, the episodic event. However, if the VSQG desires to ship all hazardous waste generated and accumulated on site to a RCRA-designated facility at once, for economic or logistical reasons, then it can be sent off site together. This applies whether the hazardous waste was generated as a result of the episodic event, independent of the episodic event, or prior to the event.

Section 6.8 - Accumulation standards for SQGs

 (a) Comment: Only a few commenters specifically commented on accumulation standards for SQGs. Two states expressed support for the proposed container and tank management requirements for VSQGs and SQGs using the episodic generation provisions (145, 232). One commenter found the container labeling to be confusing and excessive (133). One state was concerned that some of the requirements would be hard to enforce, particularly verifying that SQG label containers "episodic hazardous waste" (217). Another state agreed with the labeling of the words "episodic Hazardous Waste," the contents, and the hazards but did not support the date being added (248).
(a) EPA Response:For containers and tanks, EPA decided to finalize the following accumulation standards as conditions for managing waste under the episodic generation provisions. When accumulating hazardous waste generated as a result of an episodic event in containers, the SQG must mark its containers with the following: (1) The words "Episodic Hazardous Waste"; and (2) an indication of the hazards of the contents of the container. These standards are the same as those for SQGs accumulating hazardous wastes in containers in the course of normal business operations and are necessary to protect human health and the environment. In addition to these standards, the SQG is required to mark the date that the episodic event began clearly on each container. For tanks, the SQG must mark or label the tank containing hazardous waste accumulated during the event with the words "Episodic Hazardous Waste" and is required to use inventory logs, monitoring equipment, or other records to identify the hazards of the contents and to identify the date that the episodic event began and ended. EPA does not think that these few labelling requirements are excessive or confusing. They are necessary for both the generator and any implementing agency to be able to identify what hazardous wastes are being generated under an episodic event and whether the event is still occurring and whether the wastes are legally still on the generator's site. Without labeling of episodic waste and event dates, this information cannot be determined by looking at a container or tank. The other labelling requirements are in line with the labeling changes to all hazardous waste being finalized in this rulemaking.
In addition, the generator must have records containing this information on site and available for inspection. The SQG must also comply with all the conditions of the exemption in § 262.16 -- for example, the waste accumulation, waste management, employee training, and emergency preparedness and prevention conditions.
(b) Comment: One commenter asked how the requirement at SQGs use the tank specifications in part 265 interacts with the exemption from part 265 in 265.1(c)(11) to immediate responses to releases, discharges, or threats to human health, public safety, property, or the environment. (0214) (b) EPA Response: Section 265.1(c)(11) refers to the immediate threat or aftermath of an emergency. In those cases the exemption from part 265 can apply while the situation remains unstable. When the immediate response is over, a generator can choose to operate under the episodic generation provisions in subpart L (if applicable) if the event resulted in a higher than normal generation level for the month for that generator and then they would have to comply with part 265 technical standards for tanks. Note that not every unplanned episodic event would rise to the level of this exemption from part 265.

Section 6.9 - 45-day limit for event

(a) Comment: Most of the comments EPA received on the episodic generation provision in the proposal revolved around how long each episodic event could be. EPA proposed a 45-day limit for an episodic event with an option to petition for a 30-day extension, for a potential total of 75 days. EPA proposed 45 days because it believed that 45 days allowed enough time for an event to be initiated and completed and for the waste to be removed. The petition option was meant to account for any unexpected problems that the generator might have with transporting the waste offsite. EPA did not want to extend the episodic event for so long that it might represent a large portion of the year. EPA determined that if the episodic event provision were too expansive, it would be more likely to allow generators that are more permanently generating in a higher category to try to use the provision as a way to avoid those requirements.
However, many commenters on this aspect of the provision argued that the 45-day limit was too restrictive (125, 129, 134, 182, 201, 217, 238, 241) and one stated that the limit "undermines the benefits to operators of the episodic event rule" (88). However, it should be noted that there was also some support for the 45-day time frame in the comments (181, 227, 241), as well as at least one commenter who argued that 45 days is too long for an episodic event because most truly episodic events are very short-term spikes (232). One state asked for clarification on the maximum time frame and whether the waste had to be shipped off-site or received at the TSDF in that time frame (112).
One of the main reasons that commenters argued that 45 days is too restrictive a time period for episodic events was the time needed for waste disposal contracts to be competitively bid and the time needed for generators to classify waste and prepare and schedule shipments (75, 77, 81, 93, 113, 117, 120, 131, 134, 149, 155, 177, 214, 238, 240, 257, 258, 280). Other commenters also pointed out that events themselves may take place over several weeks (138, 182, 217) and that some remote facilities may have special circumstances that require longer time frames to resolve (98). Other commenters argued that some events may be special projects or demolition or remediation projects that would take longer than 45 days (97). One commenter was particularly concerned that the generator would not know they would become an episodic generator until after a contractor or consultant had helped them characterize their unwanted materials, in which case much or all of the 45 days may have passed (254).
Many commenters suggested a 90-day time frame, to match up with the requirements for large quantity generators (75, 81, 93, 98, 113, 120, 131, 138, 149, 155, 177, 201, 214, 238, 240, 258, 262, 280) and some suggested at least a 60-day time frame (129, 214, 224, 241, 257). Other commenters suggested time frames as long as 180 days (117, 182, 240) or time frames commensurate with the higher generator status (i.e., 90 days for LQGs or 180/270 days for SQGs) (88, 192, 217). One commenter also suggested 120 days for generators that are located farther away from RCRA designated facilities (241).
(a) EPA Response: EPA's goal was to find a balance between a time frame that would be useful and workable for industry and not making episodic generation a loophole for generators to use to circumvent the regulations by holding episodic events over a large part of the year. The first part of achieving this balance was determining how long an event should be. EPA was persuaded by the commenters who stated that a longer time frame than 45 days was appropriate for an episodic event, particularly because of the arguments surrounding the planning needed to remove waste from the generator site in the case of an unplanned event, even if the event itself is very short. For planned events, it should be a matter of course for the generator to have characterized waste as hazardous or not and made arrangements for shipment off site in advance. However, in the case of an unplanned event, the generator might not know if the material that must be disposed qualifies as a hazardous waste and may not have a waste hauler available for a pick up. If the generator has to competitively bid for the service, as some of the commenters on the rule argued that they must, the process of getting the waste off site will take longer.
However, EPA was not persuaded by the commenters who argued that some events themselves will take longer than the time allowed, such as long-term demolition or remediation projects. Rather, these bigger long-term projects do not appear to be the kind of event that EPA would consider an "episodic" event and warrant the facility shifting into the larger waste category for the duration of the increased waste generation to properly manage the site and the hazardous waste itself.
Therefore, EPA is finalizing a longer time frame than proposed to account for some of the challenges in managing waste from an unplanned episodic event. EPA has determined that 60 days is an effective balance between allowing time for the generators to use the provision without making the time frame so long that it becomes something generators can abuse. A 90-day time frame or longer, suggested by many of the commenters, struck EPA as being excessively long, as it would mean that a generator could consider the waste being generated during a full quarter of the year as waste from an episodic event. Shortening the event time and allowing a full 90 days of accumulation time also went counter to the Agency's goal of encouraging these generators that are generating above their normal category to arrange for the shipment of the waste to a RCRA-designated facility as soon as possible.
Therefore, EPA has decided that VSQGs and SQGs can have 60 calendar days to initiate and complete an episodic event, which includes generation, accumulation, and management (e.g., recycling, treatment and disposal --  either on site, such as waste neutralization in a container, or off site at a RCRA-designated facility) of all hazardous waste resulting from the episodic event. In order to maintain a parallel structure for planned and unplanned episodic events, EPA is finalizing a 60-day time frame for both types of events. In the case of a planned event, the 60 days start on the first day of any activities affiliated with the event and in the case of a storm or spill, the 60 days start on the day of the storm. All hazardous waste generated from the episodic event must be removed, transported by hazardous waste transporter with a hazardous waste manifest, and sent to a RCRA-designated facility by the end date of the event, no more than 60 days from its start. In addition, the Agency sees no reason to preclude a generator from taking advantage of this provision to also dispose of other hazardous wastes generated during the time of the episodic event. EPA has determined that events requiring more than 60 days to complete are not episodic generation of hazardous waste and the generator should be operating in a higher generator category to accumulate and manage that hazardous waste.

Section 6.10 - Petition process for extension of event

(a) Comment: One commenter on the petition process requested EPA set a specific time frame for the regulator to respond to the request. This commenter also requested EPA clarify what actions a generator must take if the petition is denied or delayed by the regulatory agency (93). Two states did not support allowing generators to petition for an extension of an episodic event (232, 248). One state also asked for clarification on what criteria should be considered in determining whether to grant an extension to the 45-day storage period for episodic wastes (112). Another state asked that EPA explicitly state that in order to get a 30-day extension, the hazardous waste must not be beyond the allowable accumulation period (206). Another state disagreed with making the 30-day extension more stringent than what's currently required under existing §262.34(b) for non-episodic events (214).
(a) EPA Response: As a result of allowing a longer time frame for the episodic event, EPA also determined that a petition for a 30-day extension to an episodic event is no longer necessary. The longer time frame of 60 days should mean that extensions are not necessary in many cases. In addition, EPA took into consideration the comments from the authorized states that they are concerned about the potential volume of petitions they might receive from the proposed episodic generation provisions, as well as their implementation questions, and eliminating the option to petition for an extension is responsive to their concerns about the effect of the new provision on their resources. Accordingly, if a generator operating under the episodic generator conditions finds itself at the end of the 60-day time period and is unable to remove the waste from its site before the deadline, its generator category will change to SQG or LQG once the deadline has passed and the hazardous waste must be managed under the appropriate generator standards.

Section 6.11 - Recordkeeping for episodic event

(a) Comment: Two states supported the proposed recordkeeping requirements for episodic generation events (232, 248). Several commenters noted that the generator must manifest the waste but that the manifest itself is not listed as one of the records that needs to be retained (131) or the recordkeeping information that is required duplicates much of the information found on the manifest and/or notification form (214, 217, 240). Another commenter noted that episodic events could be documented with shipping papers and notification forms (154).
(a) EPA Response: EPA has determined that generators must keep the following information in their records: (1) beginning and end dates of the episodic event; (2) a description of the episodic event; (3) a description of the types and quantities of hazardous wastes generated during the episodic event; (4) a description of how the hazardous waste was managed, as well as the name of the RCRA-designated facility that received the hazardous waste; (5) name(s) of hazardous waste transporters, as appropriate; and (6) an approval letter from EPA, if the generator successfully petitioned to conduct an additional episodic event during the calendar year.
The information required to be maintained in items (1) through (3) above is the same information that must be identified on the generator's notification to EPA about the episodic event. Maintaining records of the name of the RCRA-designated facility that received the waste and the ultimate management of that waste as well as the name of any hazardous waste transporters fulfills the RCRA requirement for the generator to be responsible for its hazardous waste from cradle to grave. The generator can keep copies of the manifest to fulfill their recordkeeping obligations. In addition, a record of any approval letters from EPA for a second event are critical for generators to be able to show that they were in compliance with subpart L when conducting that second episodic event. These records must be maintained on site by the generator for three years from the completion date of each episodic event. The recordkeeping condition is critical to enable effective and credible oversight. We also have determined that the required items represent the minimum information necessary to determine that any hazardous waste generated during the episodic event is managed properly. In addition, EPA notes that the regulations in part 262 subpart L do not need to specify that the generator maintain copies of its manifests, as those requirements are covered in the manifest regulations.
(b) Comment: Several commenters asked for clarification on whether episodically generated wastes would be required to be included in an LQG's BR (97, 112). The RCRA Site ID Expert Group did not support the episodic generation provisions specifically because the VSQGs and SQGs that generate LQG amounts of waste would not have to file a BR and they noted that a significant percentage of BRs currently submitted are from episodic or one-time LQGs (125).
(b) EPA Response: A VSQG or an SQG that is operating under an episodic event is not required to complete and submit a Biennial Report for that year simply because of the episodic event. If a VSQG or an SQG carries out an episodic event early in the year and then later in the calendar year becomes an LQG for a different event that is not performed under the part 262 subpart L regulations for episodic events, and is therefore submitting a BR anyway (if it is a reporting year), then all the waste generated in the calendar year would have to be reported. This would include the hazardous waste generated under the initial episodic event, as well as all other hazardous waste for the year.

Section 6.12 - Use of drip pads or containment buildings

(a) Comment: Some commenters were in favor of allowing episodic hazardous waste to be accumulated on drip pads and/or in containment buildings (131, 164). One state noted that a large remediation project can be an episodic event and it may be desirable to manage that waste in a containment building. The state requested EPA clarify whether EPA's proposed prohibition on the use of containment buildings at an episodic generation site means they may never be used or if the generator would just have to comply with the full LQG requirements (178). One state disagreed that CESQGs are prohibited from using drip pads and stated that the exclusion at §261.4(a)(9) specifically mentions CESQG drip pads (214). Two states and the association agreed that containment buildings and drip pads should not be used for episodic events (217, 240, 248).(a) EPA Response: EPA is also finalizing its proposal that VSQGs/SQGs may not take advantage of the episodic generation provision for wastes accumulated on drip pads or in containment buildings. EPA has determined that it is most appropriate that hazardous waste that is being accumulated and managed on drip pads and in containment buildings be managed under the specific requirements in part 265 subpart W and subpart DD for those units. If a generator experiences an episodic event in an area of the facility that is separate from its accumulation in these units, it can use subpart L for those hazardous wastes. EPA also notes that increased hazardous waste production that is simply a result of increased production at the facility would not be considered an episodic event for the purposes of part 262 subpart L.

Section 6.13 - Additional conditions

(a) Comment: Counting -- Two states did not agree with how the waste in the example in the proposal of an episodic event that involved two calendar years was counted and stated that it was inconsistent with normal waste generation counting (217, 232). One of these states, MCPA, did not support the proposed accounting methods for differentiating and tracking hazardous waste generated during an episodic event in general and noted that the accounting surrounding an unplanned event could be considerably more complex (232).
(a) EPA Response: Counting -- If a generator's waste is to be considered part of the episodic event and not be counted toward monthly generator category, then the waste must be part of the episodic event identified in the generator's notification. EPA has determined that this will prevent generators from using the time frame of an episodic event as a free-for-all for generation of all types of waste, regardless of whether it is identified in the notification of the event. EPA has revised this interpretation of how the episodic generation provision will work from the preamble discussion in the proposed rule in reaction to concerns from commenters that the episodic generation provision would provide excessive relief from the hazardous waste regulations for generators. EPA carefully considered what parts of this proposal could be revised to ensure that the episodic generation provisions are used just for the management of waste that is episodically generated and not be used to allow a generator to avoid managing waste in a larger generator category that it is operating in more regularly. EPA identified the discussion about differentiating waste from operations and from an episodic event as an area where the interpretation of the final provision should be revised to clearly state that only the waste from the identified episodic event is exempt from being counted toward a generator's category. EPA has therefore revised this discussion for this final preamble.
(b) Comment: Labeling -- Several commenters disagreed with EPA's proposed requirement to label hazardous waste from episodic events, specifically "Episodic Hazardous Waste," stating it was likely to cause confusion and non-compliance since it will only be required on rare occasions. These commenters stated that it would be a burden to get and use a label that is different than the standard "hazardous waste" label (81, 138, 154, 214, 220, 256). One state agreed with the labeling of the words "episodic Hazardous Waste," the contents, and the hazards but did not support the date being added (248). One commenter argued that the container labeling standards for episodic generation events were confusing and exceeded what was necessary (133).
(b) EPA Response: Labeling -- EPA has determined that the labeling requirement as part of episodic generation should, for the most part, parallel the requirements in the other parts of the generator program. However, EPA disagrees with the commenters on the usefulness of the "episodic hazardous waste" label. EPA also disagrees with commenters that the label is confusing and burdensome, or that a date on the label is unnecessary. EPA is retaining this requirement because it will be important for generators holding episodic events to be able to distinguish hazardous wastes generated during those events from other hazardous wastes generated on site. Although both types of hazardous waste can be managed and shipped off site together, if convenient, hazardous waste that was generated before the episodic event began retains its original time frame for being treated or shipped off site whereas hazardous waste from an episodic event must be treated or shipped off site within the 60-day period for the event. If there is no distinction on the labels for hazardous waste from an episodic event, or a date, it would be difficult for a generator or an inspector to be able to determine which hazardous waste is a part of the episodic event with the 60-day limit and which hazardous waste has an alternate schedule for treatment and shipment. EPA does note, however, that the generator does not have to use a specific "episodic hazardous waste" label that would have to be purchased separately and, if practicable, can simply add the word "episodic" to the labeling with a self-designed label or with a large permanent marker.

Section 6.14 - Other

(a) Comment: One commenter stated their concern that the episodic generation event provisions are inconsistent with the long-standing exemption from RCRA permitting for immediate response activities. This commenter believes the requirement to immediately comply with the generator tank and container standards for episodic events is in direct conflict with the immediate response activities.
(a) EPA Response: EPA disagrees with the commenter's assertion that the new provisions for episodic generation events conflict with the immediate response exemption of §§ 264.1(g)(8), 265.1(c)(11)(i), and 270.1(c)(3)(i). First, the immediate response exemption is an exemption from the requirement to obtain a RCRA permit. It is not an exemption from having to meet the generator tank and container standards. Furthermore, many of the episodic generation events would not qualify as immediate responses, particularly the planned episodic events.
(b) Comment: The proposed regulations address planned and unplanned episodic generation, which provides necessary regulatory relief by creating allowable episodic events, without changing a generators status. Many University research stations, research laboratories and research farms commonly use chemicals, including pesticides which are P-Listed in quantities much greater than 1kg. Maintaining the 1 kg monthly generation limit for P listed wastes is unreasonable and places undue burden on generators. The episodic generation proposed regulations could be further enhanced by increasing the monthly generation limit from 1 kg to something more practical such as 10 or 20 kg (0187).
(b) EPA Response: EPA is not revising the generation levels of acute hazardous waste that will cause a generator to become an LQG as a part of this rulemaking. EPA encourages college and universities to use Subpart K, which was specifically designed to address the concerns of this sector including the concerns expressed in this comment. Under Subpart K, the accumulation limits are based primarily on time. Further, the 1 kg accumulation limit for laboratories applies only to P-listed wastes that are listed for reactivity. (c) Comment: One commenter asked if a generator operating under an episodic event could send hazardous waste to an LQG under the control of the same person, as allowed under the consolidation provisions finalized in this rulemaking as well (0240)
(c) EPA Response: EPA has determined that because of the amounts of wastes that could be involved in an episodic event and because of the goal to remove the hazardous waste to a disposal facility in a timely manner, allowing a generator to take advantage of both the episodic generation provision and the consolidation provision would not be appropriate. This would allow another 90 days of accumulation before ultimate treatment or disposal and could involve much higher amounts of waste than originally considered by EPA when allowing consolidation from VSQGs.
(d) Comment: One commenter stated that all hazardous waste from a generator should not have to be removed at the date of the conclusion of the episodic event. (0254)(d) EPA Response: EPA agrees with the commenter. A generator would not have to remove all its hazardous waste from the site at the end of the episodic event. However, all the hazardous waste from the episodic event would have to be removed by the end date of the event. If the generator is generating hazardous waste in its normal production processes at the same time as the episodic event, that hazardous waste can be generated and accumulated on its typical schedule per 262.14 or 262.16.

Section 7 - 7. Revisions to existing parts 264 and 265

Comment: :: Change 50: In 264.15(b)(4), the requirement to inspect "[a]reas subject to spills, such as loading and unloading areas" on a daily basis is imprecise. Many agencies believe an "area subject to spills" is anyplace where waste is stored, and expect daily inspection of these areas in contravention of the requirement to inspect such areas weekly. Please provide clear requirements for what types of areas are expected to be inspected on a daily basis when in use. (0078)
Response: The Agency believes the existing regulations associated with what types of areas are expected to be inspected on a daily basis when in use are self-explanatory and we refer the commenter to the specific regulations cited in 40 CFR 264.15(b)(4) for additional information. If not sufficient, the Agency recommends that you contact your authorized state or EPA regional office for assistance.
Comment: Change 59: Please explain why inspections for containment buildings must be conducted "at least once every seven days" when for all other types of units the requirement is "at least weekly". The reasoning for this requirement was not discussed in the rule adopting it [Footnote 11: 57 FR 37194 (8/18/1992).]. Some agencies are utilizing this requirement to justify their interpretation of "at least weekly" as "at least once every seven days". (0078)
Response: The language describing the time frames for inspections at containment buildings and other hazardous waste accumulation units is existing language that EPA is affecting in this rulemaking only insomuch as some of those standards are being copied into part 262 as part of the reorganization. EPA did not propose to revise the language the commenter is commenting on and is not making any changes in the final rule.
Comment: 46. Regarding proposed revisions to Parts 264 and 265 for owners and operators of hazardous waste treatment, storage and disposal facilities - Section XI.A-B., pages 57978-57980: Colorado agrees with the proposed changes to the biennial reporting requirements for owners and operators of TSDs and has no comments. (0085)
Response: The Agency appreciates the support of this commenter regarding these changes.
Comment: Part 264
:: 264.71 - This seems to clarify that TSDFs may use the Part 262 accumulation provisions. Florida agrees with the proposed change clarifying that TSDFs may use the Part 262 accumulation provisions for wastes generated on site. (0214)

Response:  The Agency appreciates the support of this commenter regarding these changes.
Comment: BCI has one suggestion to improve the rule by harmonizing the various inspection and reporting schedules to avoid confusion among the regulatory community and EPA by eliminating one outlier inspection schedule. Except for instances where the schedule is set at once a day, month, or year, the vast majority of EPA's inspection and recordkeeping requirements for owners and operators of treatment, storage, and disposal facilities in 40 C.F.R. Parts 264 and 265 are set to the common schedule of "once a week," "weekly" or "at least weekly."  BCI understands that these two frequencies were intended to equate to the same period of approximately a calendar week, and the difference in language between "weekly" and "every seven days" may, at first blush, appear minor. However, BCI members have reported that this inconsistency causes significant confusion and implantation headaches because the periods are calculated differently: one is based on the numerical calendar date, the other based on the calendar week. An inspection interval of Monday to the following Tuesday would be compliant with all of the at least twenty separate "weekly" schedules, but not for the two outliers. This means that facility inspectors must separately track the inspection schedule for 264.1101(c)(4) and 265.1101(c)(4) from all other weekly inspection schedules.

EPA should make the inspection and recordkeeping schedules as consistent as possible. BCI recommends changing the wording in both 264.1101(c)(4) and 265.1101(c)(4) to read "at least weekly" instead of "at least once every seven days." (0247)
Response: The language describing the time frames for inspections at containment buildings and other hazardous waste accumulation units is existing language that EPA is affecting in this rulemaking only insomuch as some of those standards are being copied into part 262 as part of the reorganization. EPA did not propose to revise the language the commenter is commenting on and is not making any changes in the final rule.
Comment: DC agrees that the new requirements for SQGs are important and will improve safety in the event of an emergency. However, DC feels the burden on SQGs, which are normally small businesses in the District, such as dry cleaners and auto repair shops, will be significant. (0248)
Response: The Agency has modified its proposal to address the concerns expressed by emergency responders. The impacts on SQGs should be minimal, if there is any increase at all.
Comment: - 264.1030(b)(2) and 265.1030(b)(2) and (3): The Note below section 265.1030(b)(3) has been deleted that previously explained the following: "NOTE: The requirements of §§265.1032 through 265.1036 apply to process vents on hazardous waste recycling units previously exempt under paragraph 261.6(c)(1). Other exemptions under §§261.4, and 265.1(c) are not affected by these requirements." This note should be reinstated to aid in understanding the regulations, to the extent it is not inconsistent with the final form of the regulations; (0248)
Response: EPA did not intend to delete the note to § 265.1030(b)(3) and erroneously published that instruction in the proposed regulation. This has been corrected in the final rule.

Comment: - 264.1050(b)(3): The exemption from permitting previously referencing 262.34(a) is now changed to new section 262.17 (without specifying the pertinent subsection(s)). New section 262.17 covers a broad range of SQG requirements. This exemption needs to have a more specific reference; (0248)
Response: The Agency disagrees with this comment. As reconstructed in the final rule, the language found at the beginning of 40 CFR 262.16 and 262.17 makes clear that all conditions must be satisfied in order to be exempt from permitting requirements.

Comment:  264.71 and 265.71 (manifests): the references to 40 CFR 262.34 (which state that it applies only to shippers of hazardous waste generated at the facility) have been changed to reference 262.15, 262.16, and 262.17, which are the new generator sections with their added requirements. The specific applicability of manifest requirements needs to be stated as being for shippers, as is currently is done; (0248)
Response: The Agency disagrees with this comment. The changes from 40 CFR 262.34 to §§ 262.15, 262.16, and 262.17 are simply conforming changes meant to address the reorganization of the hazardous waste generator rules and nothing else.
Comment: If you are proposing changes to 40 CFR Parts 264 and 265, recommend or urge you to also make identical or parallel changes to 40 CFR Part 267 for Standardized Permits. Imagine that was inadvertently omitted in the proposed rule at 80 FR 57980 and 80 FR 58011. But without parallel consistent changes to Part 267, that implies holders of standardized permits cannot take "on-line" training and must continue with only classroom and on-the-job training, still have to include the closure cost estimate in the biennial report on EPA form 8700-13B (yes there is "B" in there), etc. We at BP Exploration (Alaska) Inc. operate a TSDF in a non-authorized state that has been issued a standardized permit for container storage from EPA Region 10. We consider ourselves to have been given adequate public notice for such a rulemaking change, as evidenced by the submittal of this public comment; it does not seem necessary for the purpose of providing adequate public notice for the agency to have to "re-" public notice revising Part 267 if you are merely making consistent changes to Part 267 that you proposed to make to 40 CFR Parts 264 and 265. (0151)
Response: The Agency has deferred any specific changes to a facility's permit to its authorized state or EPA region. We recommend you contact your permitting authority to determine if a change can be made to your permit.
Section 7.1 - 50-foot waiver for LQGs

General Support of the Waiver

Comment: EPA heard from 19 commenters that generally support that the rule includes a site-specific waiver from the requirement to accumulate ignitable or reactive waste at least 15 meters (50 feet) from the property line (Commenter Nos. 77, 85, 93, 126, 131, 134, 142, 168, 181, 185, 192, 206, 214, 219, 225, 248, 250, 256, and 262). Commenters stated that the 15 meters (50 ft) setback requirement is difficult to meet in urban environments and that this waiver will provide an opportunity for generators to safely accumulate ignitable or reactive waste within 15 meters (50 ft) of the property line.
Response: EPA thanks the commenters for their support. We agree with the commenters that the 50 foot setback requirements is difficult to meet in an urban environments, specifically when the property has a width of 100 feet or less. Generators who can't meet the 50 foot requirement will now be able to apply for a site specific waiver allowing generators to safely accumulate their ignitable and reactive waste within 50 feet of their property line.

General Concerns of the Waiver

Comment: Two commenters had concern regarding a generator's compliance with the waiver and, generally, how the waiver process will work (Commenter Nos. 112 and 264). These commenters suggested that clarification is needed regarding documentation and notification of the waiver.
Response: EPA thanks the commenters for their suggestions and a discussion of the steps involved for obtaining the waiver is discussed below.
If a generator is seeking a waiver so that they can store ignitable and reactive waste within 15 meters (50 feet) of their property line then they must contact the proper authority having jurisdiction (AHJ) over the fire code at the generators location. An AHJ may or may not be the fire marshal, fire chief, building official, or another official as designated by the state or local government. EPA believes that the proper AHJ should be easy to determine since the term "AHJ" was developed by the National Fire Protection Association (NFPA) and has been adopted by most state and local governments. The AHJ may then either deny, approve, or approve with conditions depending on their review of the various factors at the generators site. If approved, the generator must maintain a record of the written approval as long as ignitable or reactive hazardous waste is accumulated in this area.
With respect to this waiver, EPA recognizes the AHJ's authority over the fire code and we believe that the AHJ is the most qualified person to review all the factors on the generators site and properly determine if/how this waste can be safely stored within 50 feet of the property line. As such, any conditions for approval, expiration date, inspections, enforcement, revocation, etc. of the waiver is at the discretion of the AHJ. Thus, EPA's involvement with this waiver may be kept to a minimum. EPA may review the approved written waiver during regular inspections to ensure the generator is in compliance with the conditions in the waiver. If an EPA inspector has a concern with an approved waiver, then they may bring their concern to the attention of the appropriate AHJ.
The generator must maintain their accumulation area for ignitable and reactive waste as specified in the approved waiver and if conditions at the accumulation area change then the generator should contact the AHJ to reassess their site and update their approval, if needed.
Keep in mind that under section 3006 of RCRA, individual states can be authorized to administer and enforce their own hazardous waste programs in lieu of the federal program. States that are authorized to implement the RCRA program have authority to promulgate regulations that are more stringent than the federal program. EPA recommends that the generator consult with the appropriate authorized state agency prior to requesting this waiver as the requirements may differ from state to state.

Comment: One commenter suggested that accumulating ignitable and reactive waste in an urban environment presents a danger to the local public and the generator should not be able to hold this waste on-site (Commenter No. 264).
Response: EPA disagrees with the commenter and believes that ignitable and reactive waste can be held on-site in an urban environment with proper precautions set by the AHJ with respect to the fire code. EPA considers the AHJ to be an expert in fire safety and should have the expertise to determine a proper place for accumulating ignitable and reactive waste for a generator located in an urban environment without posing a risk to the public. It is the prerogative of the AHJ to require additional precautions prior to approving this waiver. These precautions may or may not include fire barriers, sprinkler systems, alarm systems, training, inspections, quantity restrictions, and more. Furthermore, the AHJ may also deny this waiver if they determine that the danger is too great and it is simply not possible to safely accumulate this waste on-site.

Comment: One commenter (Commenter No. 168), although generally supportive of the provision for a waiver to buffer zone requirements, recommended that retail facilities should be exempt from this requirement, noting that the waiver request process would be unnecessarily cumbersome because of the large number of retail stores and because requests may not be a one-time occurrence. Reasons given for multiple waiver requests involved changing product offerings, rearranged storage areas or changing locations (presumably the store locations). The commenter also noted that unsold/returned items that might be considered wastes will be in the same form and packaging as they were when offered for sale to consumers in much larger quantities.

Response: EPA understands that RCRA regulations, which were developed primarily for manufacturing settings, are not always the best fit for the retail sector. EPA also understands that the situation in the retail sector is unique in that consumer goods may become unsalable at a store for a variety of reasons, after which these goods are managed through the reverse distribution process for eventual donation, liquidation or disposal as hazardous waste. The Generator Improvements rule was developed to address a number of issues facing the hazardous waste generator community as a whole, including certain issues relevant to the retail sector, such as the buffer zone requirement. EPA believes the waiver to the buffer zone requirement, which applies only to hazardous wastes from large quantity generators, will provide relief for retail stores. EPA does not believe that the reasons cited by commenters to support the cumbersome nature of the waiver request process is sufficiently persuasive to warrant creation of an exemption of the buffer zone requirement for retail stores.

Use of the Fire Department to Issue Waiver

Comment: Eight commenters agreed with the proposal that the local fire department is knowledgeable and able to determine if it safe to store ignitable and reactive waste within 50 feet of the property line (Commenter Nos. 116, 131, 134, 168, 181, 182, 185, 217, and 256). However, two commenters suggest that some fire departments are not the appropriate entity to make determination on this waiver or the area is unincorporated and there are no local fire departments (Commenter Nos. 106 and 112). Another commenter suggested that it would be more appropriate to request this waiver from the authority having jurisdiction (AHJ) over the fire code (Commenter No. 256).

Response: EPA thanks the commenters for their suggestions and we believe that there is some confusion as to who exactly can approve this waiver. EPA originally proposed that the generator contact their local fire department for this waiver but, as some commenters pointed out, the local fire department may not be the designated official to interpret and enforce the fire code. The Agency did not intend to restrict the ability of those who can approve this waiver to only local fire departments. However, the Agency did intend that the entity or individual granting this approval has detailed knowledge of the fire code, has the ability to evaluate the site conditions to determine a safe and practical place for storing ignitable and reactive wastes, and is authorized by the state or local government to enforce the fire code. In order to clarify who can approve this waiver, the Agency decided to change the terminology from the "fire department" to the "authority having jurisdiction (AHJ)" over the fire code within the facility's state or locality, as suggested by one commenter.
AHJ is a term developed by the National Fire Protection Association (NFPA) and has been adopted by several state and local governments. Considering the wide use of the term "AHJ" in various fire codes, the Agency believes it will be easier for the generator to determine who can grant this approval. An AHJ may or may not be the fire marshal, fire chief, building official, or another official as designated by the state or local government. If the generator is located in an unincorporated area then EPA recommends that the generator work with their state and local government to determine the appropriate official.

Comment: We heard from two commenters suggesting to allow the generator to defer to the local applicable fire codes rather than contacting their local fire department to approve the waiver (Commenter Nos. 217 and 232).

Response: Simply deferring to local applicable fire codes would be an easy alternative for generators rather than obtaining an approval from an AHJ. However, at this time, the Agency believes that deferring to a local fire code would be very complicated on a national level because the fire code may vary from one place to the next. There would be no national consistency and, specifically in unincorporated areas with no fire department, there may be a danger to the local community or the facility itself. Due to the dangers involved, EPA believes that it is important that the generator contacts the proper AHJ, an expert in fire safety, to review the conditions of the generator's site and make an accurate determination for the accumulation of reactive and ignitable waste.

Comment: One commenter suggested that EPA should intercede if the fire department neglects to respond to the waiver request (Commenter No. 181).

Response: EPA thanks the commenter for this suggestion but EPA typically does not have the personnel with the expertise to evaluate a site and determine a safe and practical location to accumulate ignitable and reactive waste that is within 50 feet of the property line. This waste can be very dangerous if stored improperly and, thus, EPA believes that an expert in fire safety must be consulted to determine the proper storage of this waste. Furthermore, EPA does not have the authority to require an AHJ to respond to a waiver request. With respect to this waiver, EPA recognizes the AHJ's authority to issue and enforce this waiver but it is AHJ's prerogative to do so. Otherwise, EPA recommends that generators work with their states and local government to find an appropriate official that will review your waiver request.

Expansion of the Waiver Provision to TSDFs

Comment: EPA heard from eight commenters that support extending the waiver provision to TSDF facilities (Commenter Nos. 85, 131, 134, 181, 182, 214, 217, and 232). Many commenters feel that this provision should not be limited to just generators and TSDF facilities have just as much need for this flexibility.

Response: EPA thanks the commenters for their support of the extension to TSDFs but EPA determined that TSDFs already go through an existing permit process, including public notice and comment, to determine site specific conditions that include identifying locations for accumulating of hazardous waste. Considering that parts of the TSDF permit process may be bypassed if owners/operators of TSDFs were allowed to apply for this waiver, EPA believes that it is not appropriate to extend this waiver to TSDFs.

Other Comments

Comment: One commenter generally agreed with the waiver provision but suggested that the waiver should include a risk assessment (Commenter No. 126).

Response: EPA disagrees that a risk assessment should be a requirement for the waiver. EPA believes the AHJ will have sufficient knowledge to make assessment of the generator's site and determine a safe place to store ignitable and reactive waste. However, the AHJ may require a risk assessment as a condition of the waiver, if they believe it is necessary.

Comment: One commenter questioned how this waiver will impact the generators insurance policy (Commenter No. 116).

Response: It is difficult to predict how this provision will affect a generator's insurance policy because each generator may have different conditions for storing their hazardous waste. EPA recommends that the generator contact their insurance provider to discuss any changes to their policy prior to changing their accumulation area of ignitable and reactive wastes.

Comment: One commenter suggested that "No Smoking" signs near ignitable and reactive wastes are unnecessary if the entire site is a non-smoking area (Commenter No. 219).

Response: EPA thanks the commenters suggestion but we believe that the posting of "no smoking" signs is prudent wherever ignitable or reactive waste is being handled to further ensure that accidental ignition or reaction of ignitable or reactive waste does not occur. In any case, this suggestion is out of scope from what was proposed and EPA cannot make any changes to this requirement at this time that are beyond the scope of the proposal.

Section 7.1.1 - Does waiver provide sufficient protection

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.2 - Are fire departments appropriate for evaluating waivers

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.3 - Revising to include language from 265.17(a)

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.4 - Adding a waiver provision for part 264 and part 265 facilities

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 7.1.5 - Other

All comments organized to this section of the comment outline are responded to under Issue 7.1.

Section 8 - Reorganization of regulations

Section 8  -  Reorganization of the Regulations/ Section 8.1 Need for reorganization
(a) Comment: Some commenters stated that they supported the reorganization of the generator regulations in the proposed rule. (0076, 0098, 0138, 0139, 0146, 0149, 0164, 0174, 0185, 0189, 0206, 0207, 0208, 0212, 0219, 0228, 0230, 0231, 0235, 0240, 0242, 0248, 0249, 0253) Commenters stated that the revisions should reduce confusion and frustration with the regulations, encourage better understanding and compliance and agreed with EPA that the regulations are badly in need of an update. (0146, 0207, 0212, 0219) One commenter stated that they supported reorganizing the regulations as long as no new substantive obligations for CESQGs and SQGs result from the reorganization. (0253)
(a) EPA Response: EPA agrees with the commenters and is finalizing the reorganization of the regulations to make them more user-friendly and to thereby improve understanding of the regulations and compliance with them.
(b) Comment: Some commenters opposed the reorganization. (0093, 0129) Commenters stated that the program is well-entrenched and should be retained unless there is a compelling reason to change it, that there would be significant work required to update the materials used to implement the program, and that states that adopt the rules verbatim will face a cumbersome task of revision their regulations. (0093, 0129, 0217)
One commenter stated that they saw no need for the reorganization or an improvement in the proposed language. (0190)
(b) EPA Response: EPA disagrees that there is no need to reorganize the regulations and is finalizing this part of the rulemaking. EPA has heard from many stakeholders that the organization of the existing regulations is illogical and hard to follow. Many of the comments to this proposal continue to echo that view. Although many current users of the regulations have come to understand them, new generators and state regulators are always being added to the community of those using the generator regulations. Reorganizing the regulations to reflect the full content of the regulations now rather than what they contained 35 years ago when first promulgated will make those regulations easier to understand for all the new users and small generators who may not currently be able to understand their requirements without help from a third-party. EPA plans to assist states in updating their rules and implementing the changes to the generator program as a part of continuing support for this rulemaking after promulgation.
(c) Comment: Commenters stated that EPA should work closely with the regulated community and states going forward if these revisions are finalized and to commit to educating the regulated community. (0129, 0230)
(c) EPA Response: EPA agrees with the commenters and plans to work closely with the regulated community and the states implementing the generator regulations to train and educate them about the revisions to the federal regulations.

Section 8.1 - Need for reorganization

Comments organized to this section of the comment outline have been responded to under Issue 8.

Section 8.2 - Areas that work well (support)

(a) Comment: Commenters supported the reorganization of the regulations. (0085, 0134, 0149, 0185)
(a) EPA Response: EPA agrees with the commenters and is finalizing the reorganization of the regulations to make them more user-friendly and to thereby improve understanding of the regulations and compliance with them.
(b) Comment: Commenters stated that they support the following proposed reorganizations of the generator regulations:
Consolidation of generator regulations in part 262 and the minimizing of cross references. (0225, 0232, 0240, 0257)
General support for the organization in the proposed regulations, separating the regulations into discrete sections for hazardous waste determinations and recordkeeping; generator category determinations; requirements for VSQGs, SAAs, SQGs, and LQGs; EPA ID numbers; and part 262 subpart L for emergency preparedness and response, with specific comments for improvement. (0178)
Moving the contents of 265.17 into the LQG requirements in 262.17.
Integrating the material previously found in section 261.5 into part 262. (0082, 0178, 0185, 0196, 0235) One commenter stated that this change would make it easier for authorized states to modify the counting regulations of state-only regulated wastes. (0196)
Moving most of the generator regulations into part 262. (0160)
Simplifying and standardizing the Satellite Accumulation Area and Central Accumulation Area requirements. (0127)
Incorporating the preparedness and prevention requirements for SQGs into the proposed 262.16 to add clarity and assist the regulated community (0195, 0248) and including the LQG preparedness and prevention regulations in subpart M of part 262. (0248)
(b) EPA Response: EPA agrees with the commenters and is promulgating these provisions in the final rule.

Section 8.3 - Areas that do not work well (oppose)

(a) Comment: One commenter added that it would be helpful to add a footnote or parenthesis when a regulation cites another part or section of RCRA. (0235)
(a) EPA Response: In this final rule, EPA has tried to limit cross-referencing to the extent practical in the generator regulations, but sometimes a reference is still necessary or most convenient. EPA tried to write the regulations to be specific about the regulation being referenced when possible, but it cannot do so when the regulations that will apply to the generator depend on the specific type of waste, process type, or other site-specific situation. These final rules will much improve the regulations in this regard, however.
(b) Comment: One commenter stated that the reorganization of the regulations would require that time and money be spent ensuring the new references are incorporated into procedures, materials, and other documents. (0123) One commenter stated concern that the reorganization is an unnecessary change with administrative burden that would lead to more confusion, not less. (0224)
(b) EPA Response: EPA disagrees that reorganizing the regulations is unnecessary and is finalizing this part of the rulemaking. EPA has heard from many stakeholders that the organization of the existing regulations is illogical and hard to follow. Many of the comments to this proposal continue to echo that idea. EPA acknowledges that changes to federal guidances and forms will be necessary due to the reorganization and that states that rely on the structure of the federal regulations in their state programs will have to make similar changes. EPA plans to assist states in updating their rules and implementing the changes to the generator program as a part of continuing support for this rulemaking after promulgation.
(c) Comment: One commenter stated that EPAs revision of the language copied from part 265 into part 262 to change the word "facility" to "site" is confusing, as "site" is meant throughout RCRA to refer to the entire land area, not the hazardous waste accumulation areas only and that EPA should find a different term. (0078)
(c) EPA Response: EPA is not finalizing this proposed revision and has reverted to the word "facility" in the final regulations in these areas.
(d) Comment: One commenter suggested that EPA locate the requirements for VSQGs in 262.14, SQGs in 262.15, LQGs in 262.16 and SAAs in 262.17. (0152)
One commenter stated that the most helpful organization of the regulations would be a progressive format in which all the shared requirements are listed first and then additional requirements follow progressively, increasing as the generator status increases. (0224)
One commenter suggested that all cross-referencing be eliminated from the generator regulations and the full requirements for CESQGs, SQGs, and LQGs be included in segregated sections, despite the increased duplication. (0174)
One commenter stated that the referencing of the part 265 requirements in the current organization of the regulations has been successful and does not need to be changed. (0263)
(d) EPA Response: As is evident from the variety of comments received on alternative reorganizations, EPA had a variety of options in reorganizing the regulations for generators. EPA determined that the regulations for SAAs should be in § 262.15, followed by SQGs in § 262.16 and LQGs in § 262.17 because SAAs could potentially be in use at either SQGs or LQGs and therefore that section was relevant to both categories of generators and should therefore appear before either of them in the regulations, not after them. In addition, the regulations are generally organized to match the process that a generator goes through as it manages hazardous waste under RCRA and the management of the hazardous waste at an SAA would temporally come before management under the conditions at either an SQG or an LQG. For these two reasons, EPA determined that the current order of the reorganized regulations makes sense.
Regarding a progressive approach to the regulations, EPA determined that this approach is not practical because the regulations do not lend themselves to a perfectly progressive system. In some cases, such as the emergency preparedness and prevention regulations, the regulations for SQGs and LQGs are similar in some areas but not identical in a way that the commenter describes. In addition, EPA thought that an organization of the regulations in this manner would make it difficult for an LQG to be able to find all the regulations that apply to one part of its operation in one place, rather requiring that they consult the regulations for CESQGs, SQGs, and LQGs for that topic to get a full picture of the requirements and EPA did not consider this an improvement to the current regulations. Regarding cross-referencing, EPA has sought wherever practical to eliminate cross-referencing, in response to many comments received in outreach about this effort but there were some areas where the amount of added language to the Code of Federal Regulations would have been significant and excessive. EPA has limited that cross referencing to the longest sections of regulations and thinks this will greatly improve the usability of these regulations for the majority of the users.

Section 8.4 - Errors/oversights in proposed regulations

(a) Comment: Commenters identified some mistaken references throughout section 262.16 in 262.16(b), (d), and (f), and provided suggested correct language for those references. (0082, 0214, 0217)
(a) EPA Response: EPA agrees with these comments and has corrected the references in the final rule.
(b) Comment: Commenters stated that section 262.17(c)(4)(i)(B) or (c)(4)(iii) may be missing provisions for tracking accumulation start dates for tanks. (0082, 0217)
(b) EPA Response: The provisions for accumulation of F006 by an LQG under the "180-day Rule" in § 262.17(c) are based on the regulations coming from § 262.34(g)-(i). EPA did not revise these regulations as a part of this rulemaking, just moved them to a new section of the regulations.
(c) Comment: One commenter stated that the proposed language duplicated the 40 CFR 262.17(a)(5) labeling and marking regulations in 40 CFR 263.12 for transporters and in the 40 CFR 268.50 prohibition on storage. (0156)
(c) EPA Response: EPA purposefully used the same marking and labeling language throughout the generator regulations to ensure that there is consistency in the marking and labeling of hazardous wastes from cradle to grave in the hazardous waste management system because each handler must mark and label in the same fashion.
(d) Comment: One commenter recommended that EPA make identical changes to part 267 for standardized permits as it is making to parts 264 and 265. As proposed, it implies that the holders of standardized permits cannot take "on-line" training and must include the closure cost estimate in the biennial report, etc. (0156)
(d) EPA Response: EPA is not finalizing changes to parts 264 and 265 specific to the contents of hazardous waste permits and will not be making conforming changes in part 270.
(e) Comment: One commenter stated that the word "may" in proposed section 262.18(b) should be changed to a "must." (0178)
(e) EPA Response: EPA agrees with this comment and has made this change in the final rule.
(f) Comment: One commenter asked why section 262.16(b)(3)(i) is reserved. (0214)
(f) EPA Response: EPA reserved this particular section to make this section of the regulations parallel to the previous regulations in § 265.201, from which these regulations were copied. EPA determined that maintaining a parallel structure would assist small quantity generators making a transition from the previous organization to the new reorganized regulations.

(g) Comment: One commenter stated that § 262.16(b)(3)(vi) should include a reference to part 268. (0214) The commenter argued that the reference in § 262.16(b)(7) to part 268 is not sufficient and that part 268 requirements are significant but are given less space in the generator rule than other requirements like documenting attempts to make emergency planning arrangements. (0214)
(g) EPA Response: The final rule includes a reference to part 268 in this section.
(h) Comment: One commenter stated that in 262.16(f) it is not clear how long the SQG may hold the rejected waste while attempting to make alternative disposal arrangements. The commenter requested that an SQG must maintain records documenting that they approve sending the shipment to an alternate TSDF and stated that they recently saw a case in which the generator stated it was unaware of a shipment being sent elsewhere but the broker claimed the generator had approved it and there was no documentation. (0214)
(h) EPA Response: The language in the relevant section of this rulemaking (§ 262.16(e) of the final rule) regarding rejected loads is not a change to the existing regulation in § 262.34(m), but has been moved as part of the reorganization. EPA is not making changes to the rejected load provisions as a part of this rulemaking.
(i) Comment: One commenter stated that § 262.17(a)(1)(v) does not include a requirement to keep written records of the inspections for three years. (0214)
(i) EPA Response: EPA took comment on a documentation requirements for inspections, but did not propose it, which is why it was not in the proposed regulatory text. EPA is not finalizing this provision.
(j) Comment: One commenter stated that § 262.40 should include a provision for keeping copies of inspection or training records, even though these are not included as "independent requirements." (0214)
(j) EPA Response: EPA has determined that the documentation requirements for training belong near the training requirement in the sections dedicated to conditions for exemption for large quantity generators for ease of finding them and to maintain their position in the regulations as conditions and is finalizing them in that section. As part of its outreach in implementing the generator rule, EPA plans to put out guidance on the new regulations and expects that a guide to what recordkeeping requirements apply to each generator type would be a part of that.
(k) Comment: One commenter stated that the independent requirements and conditions for exemption for each category of generator should be located together in the regulation to make them more user friendly. (0217)
(k) EPA Response: EPA has determined that the two types of regulations should be listed separately in part 262 because of the differing natures of those that are independent requirements as opposed to those that are conditions for exemption and because of the conditions for exemption are a distinct type of regulatory requirement that should be treated separately from the independent requirements. EPA believes that the new organization of the regulation improves the current regulations greatly in this area and intends to release training and guidance when implementing the rule that will make it clear what all the requirements are for each category of generator.
(l) Comment: One commenter stated that § 262.10(a)(2) should reference on-site treatment of hazardous waste in tanks and containers with other permitting exemptions. (0217)
(l) EPA Response: EPA does not agree that a reference to on-site treatment of hazardous waste in tanks and containers should be included with the list of generator categories and where to find the conditions for exemption that correspond with each generator category in the regulations. This section is meant to indicate where in the regulations the reader can find the conditions for each category and to explain that without the conditions for exemption, any generator that is accumulating hazardous waste would be a facility storing hazardous waste. A revision such as the one the commenter suggests would be confusing in this context.
(m) Comment: One commenter suggested that EPA move § 262.10(b) before § 260.10(a)(1) and include a reference to § 262.11(a)-(d) in this section as well, since all generators must use § 262.11(a)-(d) in conjunction with § 262.13. (0217)
(m) EPA Response: EPA is not making this change in the final rule and believes that starting § 262.10 with a list of the independent requirements for each category is the clearest approach to the regulations and is retaining this structure in the final regulations. EPA also has determined that the reference in § 262.10(b) to § 262.13 for making a generator category determination is appropriate, since the category a generator belongs to is critical in determining which of the subsections of the generator regulations are applicable to that generator.
(n) Comment: One commenter stated that in proposed regulatory text at § 262.11(d), there should be an "or" after §262.11(d)(1)(ii) and before §262.11(d)(2). (0217)

(n) EPA Response: EPA has revised the language in this section in the final rule to make clear that a generator must test to make a waste determination only when generator knowledge is insufficient to make that determination.

(o) Comment: One commenter suggested adding subparagraphs (i) through (v) to §262.11(d)(2). (0217)

(o) EPA Response: EPA has determined that subparagraphs are not appropriate for this paragraph (finalized as § 262.11(d)(1)) because the ideas belong together and are not easily distinguished into subparagraphs.

(p) Comment: One commenter suggested that the wording of § 262.13(a) be changed: Instead of "a generator's category is determined monthly..." it should say "A generator must determine what generator category it falls into monthly..." (0217)
(p) EPA Response: EPA agrees that its wording in this area was not precise in the proposal and has revised it in a manner that is consistent with the commenter's suggestion.

(q) Comment: Commenters stated that the introductory paragraph of §262.14(a) is confusing and suggested it should be re-written to be similar to § 262.16 and § 262.17, arguing that the re-organization would bring a much higher degree of clarity for VSQGs if VSQG requirements were organized the same way as SQG and LQG requirements. (0165, 0217)
(q) EPA Response: The introductory language in § 262.14 for VSQGs has been revised in the final rule to more closely match the introductory language in §§ 262.16 and 262.17.

(r) Comment: One commenter stated that the language of § 262.14(e) should say "may generate hazardous waste in accordance with subpart L" or "may generate and accumulate hazardous waste in accordance with subpart L" instead of "may accumulate hazardous waste in accordance with subpart L." (0217)
(r) EPA Response: EPA agrees with this comment and has made a change in the final rule accordingly.

(s) Comment: One commenter stated that § 262.15(a)(1) states that leaking containers must be either (1) transferred to a non-leaking container, or (2) transferred and managed in the central accumulation area. The commenter added that while the second option references transferring the waste, it does not specifically state that the waste must be transferred into a non-leaking container prior to moving the waste to central accumulation. Further, neither scenario provides a timeframe for transferring the waste. The commenter recommended providing more detail for scenario #2 and adding the word "immediately" to both scenarios #1 and #2. (0217)
(s) EPA Response: EPA agrees with the commenter and has revised the language in § 262.15(a)(1) to add the word "immediately" in both places and to state that the central accumulation area must be operated in compliance with the regulations, which would preclude leaking containers in the second scenario.

(t) Comment: One commenter stated that § 262.16 states that "A small quantity generator may accumulate hazardous waste on-site without a permit or interim status, and without complying with the independent requirements of parts 124, 264 through 268, and 270 of this chapter...". The commenter added that the exclusion of part 268 appears to conflict with the regulatory requirement found in §268.7(a), which requires generators to determine if their waste has to be treated before being land disposed and added that while the requirement to comply with all of Part 268 is included further below, the exclusion referenced in the beginning of §268.16 may confuse some readers. (0217)
(t) EPA Response: EPA has revised the introductory language in section 262.16 to not include a reference to part 268.

(u) Comment: One commenter stated that the § 262.16(b)(3)(iii)(E) cross-reference to §265.15(c) is unnecessary; the text at §265.15(c) is very short and should be included here instead of being referenced. (0217)
(u) EPA Response: EPA agrees with the comment and has revised § 262.16(b)(3)(iii)(E) to include the relevant text rather than reference it.

(v) Comment: One commenter asked whether in the § 261.33(e) introductory paragraph, did EPA intend to remove the comment and "These wastes and their corresponding EPA Hazardous Waste Numbers are:" The commenter also asked if in the § 261.33(f) introductory paragraph, did EPA intend to remove "unless otherwise designated" (it appears that some wastes in the table are otherwise designated), the comment, and "These wastes and their corresponding EPA Hazardous Waste Numbers are:" (0217)

(v) EPA Response: The use of the five asterixes in the regulatory text in the Federal Register notice ("* * * * *") identify that the comments and the introductions to the tables in both the sections the commenter mentioned. However, EPA did not mean to delete the language "unless otherwise designated" and has retained that language in the final rule.

(w) Comment: One commenter stated that in the proposed § 262.41(a), the first mention of "reporting year" occurs before it is defined as the calendar year previous to the even numbered year when the report is due and suggested that EPA replace "A generator who is a large quantity generator for at least one month of the reporting year must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of each even numbered year for all hazardous wastes generated during the previous calendar year." with "A generator who is a large quantity generator for at least one month of an odd numbered year (reporting year) must complete and submit EPA form 8700 - 13 to the Regional Administrator by March 1 of the following even numbered year for all hazardous wastes generated during the reporting year." The commenter stated that this also lines up with the implication that applicability of the requirement to submit a biennial report should be re-determined for every generator (based on monthly generator status) at the end of every odd numbered year by changing "each even numbered year" to "the following even numbered year". (0217)

(w) EPA Response: EPA agrees with the comment and has revised the language in the final rule to define what it means by a "reporting year" (i.e., an odd-numbered year).

(x) Comment: One commenter stated that § 262.44 refers to §262.40(c), which is proposed for elimination and suggested that EPA correct the reference, possibly replace with reference to §262.11(e); see above regarding VIII.B. The commenter suggested that EPA add a reference to §262.42(c). The commenter also stated that § 262.44 references §262.42(b) exception reporting but not section §262.40(b). §262.42(b) specifies reporting requirements but not the requirement to retain records for 3 years. This is covered by §262.40(b), which SQGs are not asked to comply with because it also includes retention of biennial reports. (0217)
(x) EPA Response: EPA has revised the final rule to not remove and reserve 262.40(c), but to change it to a reference to section 262.11(f) instead.
(y) Comment: One commenter identified a series of typos from the proposed preamble:
Page 57922 - Last Paragraph: The acronym for Large Quantity Generators (LQGs) was misspelled.
Page 57923 - Top Right Column: The reference to §261.5(e)(3) is incorrect. The correct citation is §261.5(f)(3).
Page 57928 - The first sentence of the first full paragraph in column 3 begins, as follows: "With the promulgation of the SQG regulations in 1986...". The correct reference should be to CESQGs as opposed to SQGs. (0217)
(y) EPA Response: EPA notes the typos from its proposed rule.
(z) Comment: One commenter made the following comment regarding page 57992 - §262.10(a)(1)(i)(H) and §262.10(a)(1)(ii)(G): These sections are missing the word "and" and has an incorrect order of the applicable part titles. Suggested correction as "(H) Part 262 subpart E and subpart F  -  Exports and imports of hazardous waste." (0217)
(z) EPA Response: EPA has revised this language in the final rule to remedy this error.

(aa) Comment: One commenter made the following comment regarding page 57992 - §262.10(g)(1): Suggest adding word "independent" within "applicable requirement" to read as "...generator's violation of an applicable independent requirement in 40 CFR ...". This addition would make understanding the section easier for the regulated community and would also mirror it to language elsewhere in §262.10(a) as well as §262.10(g)(2). (0217)
(aa) EPA Response: EPA has revised this language in the final rule, including using the term "independent requirement" in place of "applicable requirement."

(bb) Comment: One commenter made the following comment regarding page 57993 - §262.11(e): Title section simply "Recordkeeping" if accept argument to extend waste determination recordkeeping requirement to VSQG. (0217)

(bb) EPA Response: EPA is not extending recordkeeping for waste determinations to VSQGs in the final rule and thus has not made a change to this section title.

(cc) Comment: One commenter made the following comment regarding page 57994 - §262.14(a): Appears to be a comma, necessary for understanding, missing after the word below in the fifth line, as "...except the paragraphs of §262.11 specified below, or the requirements of parts 124..." (0217)

(cc) EPA Response: EPA has revised the introductory language for section 262.14 in the final rule, making this comment no longer applicable.

(dd) Comment: One commenter made the following comment regarding page 57994 - §262.14(a)(2): Suggested re-write as "(2) The very small quantity generator complies with §262.11(a) through (e) of this chapter." (0217)
(dd) EPA Response: EPA is not extending recordkeeping for waste determinations to VSQGs in the final rule and has not made this suggested change.

(ee) Comment: One commenter made the following comment regarding page 57996 - §262.16(b)(2)(iv) and Page 57999 - §262.17(a)(1)(v): Suggest defining "at least weekly" within the regulation text to a more definitive "every seven days" or "every calendar week", in order to avoid confusion and varying interpretations across States and regions on what is "weekly". Also, add the word "record" or "document", such as is proposed in section §264.1101(c)(4), as a better example of definitive language for weekly inspections. (0217)
(ee) EPA Response: EPA has determined that changing the language "at least weekly" to "every seven days" or "every calendar week" is not necessary and is not making commenter's suggested change. In addition EPA is revising the language on inspections in § 264.1101(c)(4), beyond deleting the reference to Performance Track.

(ff) Comment: One commenter made the following comment regarding page 58002 - §262.18(d)(i): This doesn't follow numbering convention. Should be §262.18(d)(1). (Lower case iv. numeral 1). (0217)
(ff) EPA Response: EPA agrees with the commenter and has made this correction in the final rule.
(gg) Comment: One commenter stated that the reference in § 268.50(a)(1) still references the requirements in § 262.34. (0217)
(gg) EPA Response: EPA has replaced this old reference to § 262.34 in the final rule.

(hh) Comment: One commenter stated that on page 57995 at 262.16(b) there is no provision stating the requirements applicable to the accumulation of acute hazardous waste when more than 1 kg is accumulated. The commenter added that in contrast, the VSQG regulations have 262.14(a)(3)(i), which state that (only) those acute hazardous wastes are subject to the full hazardous waste regulations. ("...all quantities of that acute hazardous waste are subject to full hazardous waste regulation...") (0121)
(hh) EPA Response: This construction of the regulations mirrors the current construction of the regulations, with more information available on this question available in the regulations for VSQGs. Section 262.15 for SQGs makes it clear that the accumulation limit for hazardous waste is a condition for exemption from permitting requirements for the generator and not meeting that condition results in loss of that exemption.

Section 8.5 - Helpful outreach and/or guidance post-final rule

(a) Comment: One commenter stated that amending state codes to maintain equivalency will be a considerable task and requested that EPA provide addition support for state adoption and program authorization efforts. (0145)
(a) EPA Response: EPA intends to provide guidance, training, and other assistance for state agencies implementing the new generator regulations as well as for industry and other entities complying with the new regulations.
(b) Comment: One commenter suggested that §§262.11, 262.13, 262.15, and 262.18 be added to Table 6 in the proposed preamble, which crosswalks existing citations to the proposed citations for SQGs and that a more inclusive list be included for LQGs as well. (0217)
(b) EPA Response: In the final rule the table that crosswalks SQG regulations is Table 4. Sections 262.11, 262.13, and 262.18 are crosswalked in Table 1 for general standards for all generators and § 262.15 is crosswalked in Table 3 for SAAs.

Section 8.6 - Other

Comment: One commenter suggested that instead of being reserved, §262.12 be used to add the land disposal restriction notice and certification requirements for generators that ship waste off site and the § 268.7 requirement for a written waste analysis plan. (0214)
EPA Response: EPA has determined that it is most appropriate to reserve § 262.12 to reduce any future confusion with documents or memos that refer to this section. If we were to replace the contents with new unrelated material, future readers would always need to know if any given materials were written before or after this rule change to fully understand what a reference to §262.12 means.

Section 9 - Technical corrections and conforming changes

Responses for Sections 9-9.4 of Comment Outline