EPA's proposals for RCRA sections 264.16 and 265.16 will reduce emergency training requirements for hazardous waste workers by largely eliminating sections 264 and 265.16( a)( 3) and replacing it with a reference to OSHA's 1910.120( p)( 8). As we previously stated, EPA's October 29 notice fails to address the overall question of jurisdiction between EPA and the Occupational Safety and Health Administration ( OSHA). The requirements between the two organizations may seem similar, however OSHA regulations are designed to regulate the protection of worker health and safety while EPA's requirements ensure that workers are trained to protect the environment. EPA's requirement will minimize spills at their source. OSHA cannot regulate ground water contamination, shut down of operations or waste feed operations. EPA has this authority.

This is clearly reflected in the corresponding OSHA training language. 1910.120( p)( 7) states that the training for most TSD employees is so they can " perform their assigned duties and functions in a safe and healthful manner so as not to endanger themselves or other employees." Aside from this general language for all TSD workers, the substitute language proposed by the EPA would reference OSHA's emergency response language. Many RCRA facilities do not train their workers to engage in chemical emergency response and instead have evacuation plans; therefore the provisions of 1910.120( p)( 8) on training RCRA emergency response workers largely do not apply. If the EPA only references this OSHA language, this will exempt these workers from many training requirements. In contrast, EPA's requirements in 264 and 265.16, Personal Training, state clearly that at a minimum the training program must be designed for all locations, including those companies that do NOT implement 1910.120( p)( 8) and that instead plan to evacuate all personnel. This significant difference in training requirements is not addressed in the October comments.  208 Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0349 EPA has requested comment on the approach of allowing facility owner/ operator the flexibility to determine whether to follow RCRA or OSHA requirements for emergency response training requirements. ADEQ does not concur with this approach. Allowing facility owners/ operators the flexibility to pick and choose which set of agency regulations to follow may lead to confusion in evaluating compliance with wither standard. If flexibility to select either RCRA or OSHA emergency response training requirements is necessary to prevent program duplication, then EPA or the authorized State, as applicable, should determine which standard to apply, not the facility owner/ operator, However, we do not agree that the current requirements create duplication of effort or confusion among the regulated community. Having the requirement in other RCRA and OSHA does not mean the facility would have to do anything duplicative. The facility could perform the training once, but address both OSHA and RCRA requirements. ADEQ believes RCRA should remain a regulatory authority to address potential noncompliance with these standards. Some proposed alternative language for these sections are: "( 3) At a minimum, the training program must meet the standards set out at 29 CFR 1910.120( p)." This retains the emphasis on complying with OSHA standards, but as a RCRA regulatory requirement, and should eliminate conflicting requirements.

ADEQ further disagrees with EPA's proposal because it does not provide an equivalent degree of protection to human health and the environment as does the current standard. 29 CFR 1910.120( p) specifically requires the safety and health program be designed to identify, evaluate and control safety and health hazards at facilities for the purpose of employee protection, to provide for emergency response and to address as appropriate site analysis, engineering controls, maximum exposure limits, hazardous waste handling procedures and uses of new technologies. These are procedures to follow in the event of a release, not how the personnel are to be trained to respond to release or emergency. By removing 264.16( a)( 3) and 265.16( a)( 3), EPA would effectively be removing training requirements that help protect human health and the environment.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0352 LANL supports providing facilities with the flexibility of:

4. Replacing the RCRA emergency response training in 40 CFR 264.16( a)( 3) and 265.16( a)( 3) with the 29 CFR 1910.120( p) OSHA training requirements, or 5. allowing facilities to choose whether to comply with RCRA or OSHA, or 6. allowing facilities to develop a training program equivalent to RCRA.  209 The second and third options are necessary because, Section 4 of the Occupational Safety and Health Act exempts federal and state agencies from OSHA requirements, although some agencies voluntarily comply with the OSHA requirements. EPA should also specify that 40 CFR 264.16 emergency response requirements could be met by attending OSHA equivalent off site training.

In addition, EPA needs to incorporate alternate regulatory language to address situations where large federal, state, and private facilities use a 24 hour on or off site emergency response team, rather than requiring the treatment, storage or disposal facility ( TSD) workers to respons to emergencies. To address this situation, EPA should duplicate the 29 CFR 1910.130( p)( 8)( iii) exceptions, which follow:

Exception 1: An employer need not train all employees to the degree specified if the employer divides the work force in a manner such that a sufficient number of employees who have responsibility to control emergencies have the training specified, and all other employees, who may first respond to an emergency incident, have sufficient awareness training to recognize that an emergency response situation exists and that they are instructed in that case to summon the fully trained employees and not attempt control activities for which they are not trained.

Exception 2: An employer need not train all employees to the degree specified if arrangements have been made in advance for an outside fully trained emergency response team to respond in a reasonable period and all employees, who may come to the incident first, have sufficient awareness training to recognize that an emergency response situation exists and they have bee instructed to call the designated outside fully trained emergency response team for assistance.

The requirements of 40 CFR 264.52( d) and 265.52( d) also need to be revised for facilities that use centralized, continually staffed emergency response center with a single phone number. Currently, the contingency plan must list the names, addresses, and phone numbers ( office and home) of all persons qualified to act as emergency coordinator. For facilities with centralized systems, only phone number should be listed in the contingency plan. The requirement for listing individuals triggers frequent permit modification as workers change and is not useful to workers who are required to call a centralized number. Also, facilities such as LANL, for which the threat of terrorist attack is real, would prefer not to identify key emergency response personnel by name, home address, and phone number.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0354 CRWI supported removing the RCRA requirements for emergency response training where they overlapped with OSHA requirements. However, facilities that have met their OSHA requirements through a RCRA training program may want to retain their current training program. Since the  210 requirements for both programs are the same, CRWI sees no reason to prefer one over the other. It makes sense for the Agency to allow either training scheme to meet the requirement. CRWI Supports this change.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

264/ 265.16( a) & ( d)

Document #: 0138 The proposal includes changes to personnel training in 40 CFR 264.16( a) & ( d) and 40 CFR 265.16( a) & ( d). Under Section II. D of the preamble, EPA discussed personnel training extensively, including the existing requirement to keep training records until closure. However, EPA did not propose to reduce the recordkeeping burden found at both 40 CFR 264.16( e) and 40 CFR 265.16( e). In other places, EPA also recognized that keeping records until closure is not productive and proposed to reduce that burden in a number of other places, such as:

° 40 CFR 264.73 and 40 CFR 265.73 for the operating record, ° 40 CFR 266.102( e)( 10) for permitted Boilers and Industrial Furnaces, and ° 40 CFR 266.103( k) for interim status Boilers and Industrial Furnaces.

Dow firmly believes that keeping training records for three years is more than adequate. Dow requests that the final rule also change both 40 CFR 264.16( e) and 40 CFR 265.16( e) so that these references are consistent with the approach that EPA is taking for other listed regulatory areas. Such a change could be accomplished very easily, and Dow suggests the following changes to the regulatory text:

40 CFR 264.16( e) " Training records on current personnel must be kept until closure of the facility for three years; training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company."

40 CFR 265.16( e) " Training records on current personnel must be kept until closure of the facility for three years; training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company."

Even though changes to these regulatory references were not specifically proposed, these changes are consistent with other changes that EPA has proposed. In addition at 67 FR 2520, EPA did  211 invite comments on "... new approaches we haven't considered..." Inspectors would generally visit a facility many times during a three year period and could very easily verify that training has occurred. Keeping records longer is an unproductive exercise in maintaining an archive.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

264.16( a)( 3),( d)( 1)( 2)( 3)

Document #: 0216 We disagree with these requirements being deleted and believe the rational that this requirement has little bearing on whether the employee is capable of doing the job safely is erroneous. This requirement is helpful in ensuring that adequate training is provided and the person is fully trained for the job he/ she is being asked to do. We have found that by reviewing the job descriptions we are able to determine who actually needs training. This facilitates a review of the records and a determination of who has not been trained. Without these requirements, we will not be able to determine this flaw in a facility's training program.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0043 UTC believes that regular RCRA training is necessary and that certification must be kept up to date. We recommend that EPA focus on whether there is a system to achieve this and not on minor recordkeeping discrepancies in whatever system is adopted.

In the event that EPA decides not to eliminate all recordkeeping, UTC offers the following suggestions:

° Records should be limited to show that training is current for each employee with hazardous waste handling responsibility.

° The requirement to keep written job descriptions and titles for personnel trained in RCRA should be eliminated. Any person who is assigned to manufacturing, service or maintenance activities involving hazardous waste should receive training regardless of job description.

° Records should be retained for only one to two years after an employee leaves or stops performing waste management.

1. p. 61666, col. 1  In 2002, EPA proposed to eliminate the RCRA emergency response  212 training requirements in favor of the Occupational Safety and Health Administration ( OSHA) requirements. A number of commenters suggested that the Agency provide additional flexibility to this change by allowing the facility owner/ operator to determine whether to follow the RCRA or OSHA requirements. Comments on this alternative approach are requested.

As was stated in Comments on Resource Conservation and Recovery Act Burden Reduction Initiative Notice of Proposed Rulemaking ( Letter to RCRA Docket No. F 1999 IBRA FFFFF, April 17, 2002, Specific Comments on Proposed Regulatory Text, 1), DOE supports the goal of modifying the RCRA personnel training requirements to eliminate overlap with the OSHA regulations that establish training requirements for emergency response personnel. DOE agrees that this goal would be accomplished by allowing the facility owner/ operator to determine whether to follow the RCRA or OSHA requirements ( as opposed to the proposed approach of requiring facilities to follow the OSHA regulations). Furthermore, the more flexible approach of allowing the facility owner/ operator to decide whether to follow the RCRA or OSHA requirements would address the concern raised in DOE's April 17, 2002 comment regarding potential misinterpretation of EPA's proposed regulatory text for 264.16( a)( 3)( i) and 265.16( a)( 3)( i).

Specifically DOE expressed concern that the phrase, " Have received training required by the Occupational Safety and Health Administration at 29 CFR 1910.120( p)( 8) or 1910.120( q) as applicable" [ emphasis added], which appeared in the proposed regulatory text, might be misinterpreted as not applicable to some DOE contractors. This concern arose because, under a 1992 Memorandum of Understanding between DOE and the Department of Labor, OSHA requirements do not apply directly to many DOE contractors. DOE suggested that the quoted phrase be modified as follows ( redline = addition; strikeout = deletion): " Have received training defined required by the Occupational Safety and Health Administration at 29 CFR 1910.120( p)( 8) or 1910.120( q).

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).  213 254/ 265.16( a)( 3)( i)

Personnel training.

Facility personnel must successfully complete a program of classroom instruction or onthe job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part. The owner or operator must ensure that this program includes all the elements described in the document required under paragraph ( d)( 3) of this section. ( 3) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including, where applicable: ( i) Procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment;

Document #: 0134 DOE supports modifying the RCRA personnel training requirements to eliminate overlap with the Occupational Safety and Health Administration ( OSHA) regulations addressing training requirements for emergency response personnel. However, Section4( b)( 1) of the Occupational Safety and Health Act ( OSH Act) of 1970 ( P. L. 91 596) waives OSHA's jurisdiction in cases where another Federal agency has exercised its statutory authority to prescribe or enforce occupational safety and health standards. Relying on this section of the OSH Act, in 1974, the Department of Labor ( DOL) explicitly recognized the Atomic Energy Commission's ( AEC's) authority to establish and enforce occupational safety and health standards at AEC sponsored contractor facilities. Subsequently, DOL and DIE, a successor agency to the AEC, reaffirmed this arrangement at DOE's government owned, contractor operated ( GOCO) facilities in an August 10, 1992, Memorandum of Understanding ( MOU). Under the 1992 MOU, OSHA advises DOE worker protection, but DOE regulates all aspects of worker health and safety at almost all of its nuclear facilities. DOE exercises its authority over working conditions at GOCO facilities through the system of DOE Orders and a program of internal oversight at these facilities. For this reason, DOE is concerned that, since OSHA regulations do not apply directly to many DOE contractors, the phrase, " Have received training required by the Occupational Safety and Health Administration at 29 CFR 1910.120( p)( 8) or 1910.1210( q) as applicable" [ emphasis added], in EPA's proposed regulatory text for 264.16( a)( 3)( i) and 265.16( a)( 3)( i) might be misinterpreted as not applicable to such contractors. Accordingly, DOE suggests that in the final version of 264.16( a)( 3)( i) and 265.16( a)( 3)( i), the quoted phrase be modified to read as follows: " Have received training defined by the Occupational Safety and Health Administration at 29 CFR 1910.120( p)( 8) or 1910.120( q)."

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0346  214 RCRA/ OSHA Overlap in Emergency Response Training 1. p. 61666, col. 1  In 2002, EPA proposed to eliminate the RCRA emergency response training requirements in favor of the Occupational Safety and Health Administration ( OSHA) requirements. A number of commenters suggested that the Agency provide additional flexibility to this change by allowing the facility owner/ operator to determine whether to follow the RCRA or OSHA requirements. Comments on this alternative approach are requested.

As was stated in Comments on Resource Conservation and Recovery Act Burden Reduction Initiative Notice of Proposed Rulemaking ( Letter to RCRA Docket No. F 1999 IBRA FFFFF, April 17, 2002, Specific Comments on Proposed Regulatory Text, 1), DOE supports the goal of modifying the RCRA personnel training requirements to eliminate overlap with the OSHA regulations that establish training requirements for emergency response personnel. DOE agrees that this goal would be accomplished by allowing the facility owner/ operator to determine whether to follow the RCRA or OSHA requirements ( as opposed to the proposed approach of requiring facilities to follow the OSHA regulations). Furthermore, the more flexible approach of allowing the facility owner/ operator to decide whether to follow the RCRA or OSHA requirements would address the concern raised in DOE's April 17, 2002 comment regarding potential misinterpretation of EPA's proposed regulatory text for 264.16( a)( 3)( i) and 265.16( a)( 3)( i).

Specifically, DOE expressed concern that the phrase, " Have received training required by the Occupational Safety and Health Administration at 29 CFR 1910.120( p)( 8) or 1910.120( q) as applicable" [ emphasis added], which appeared in the proposed regulatory text, might be misinterpreted as not applicable to some DOE contractors. This concern arose because, under a 1992 Memorandum of Understanding between DOE and the Department of Labor, OSHA requirements do not apply directly to many DOE contractors. DOE suggested that the quoted phrase be modified as follows ( redline = addition; strikeout = deletion): " Have received training defined required by the Occupational Safety and Health Administration at 39 CFR 1910.1210( p)( 8) or 1910.120( q).

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Comment 0315  The American Chemistry Council fully supports allowing a facility to select either the RCRA or OSHA emergency response training requirements. EPA should also make it clear that the revised regulations will require emergency response training only for those personnel who are required to receive it under applicable OSHA regulations.

Response: The final rule has been written to ensure that RCRA facilities are not required to provide separate training. We also note that facilities exempted from RCRA emergency response training would still have to comply with § § 264.16( a)( 1) and 265.16( a)( 1), which state: " Facility personnel must successfully complete a program of classroom instruction or on the job training  215 that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part." OSHA's 29 CFR 1910.120 regulations require that employees understand and be able to perform the standard operating procedures that are part of their daily work. OSHA's 29 CFR 1910.38 Emergency Action Plan requirements include mandated training in procedures to be followed by employees who operate critical plant operations ( such as responding to ground water contamination incidents) during a spill or other emergency. Other commenters opposed the proposal because OSHA's 29 CFR 1910 requirements are not as comprehensive as the RCRA requirements regarding the universe of facilities. Specifically, they stated that OSHA's regulations are not required for all hazardous waste generators ( e. g., conditionally exempt small quantity generators under § 261.5 and small quantity generators under § 262.34) and certain treatment, storage, disposal facilities ( e. g., municipal, state and federal owned and operated facilities.) We agree, and facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. To ensure that all facilities are covered and that there are no gaps in the emergency response training requirements, we are providing flexibility by allowing facilities to eliminate redundant emergency response training requirements under RCRA and OSHA requirements ( as opposed to the proposed rule's approach of requiring facilities to follow only the OSHA regulations). For example, if a facility can meet all of the RCRA emergency response training requirements through an OSHA training course, we would consider the facility in compliance with the regulation. On the other hand, if a facility cannot meet the emergency response training requirements through an OSHA training course, then it would be incumbent upon that facility to address any gaps ( for example, if OSHA did not include automatic waste feed cut off training, there would not be a problem as long as appropriate training occurs, such as combustor staff receives this training as part of its RCRA training.) Facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. We believe that this is a reasonable accommodation for all facilities. Generators and owners/ operators of treatment, storage, and disposal facilities should work with the appropriate permitting and/ or enforcement authority to ensure that the approach they take in developing an emergency response training program is in compliance with the requirements of § § 264.16 and 265.16.

Comment 0317  Dow supports using language that would allow the flexibility to use the RCRA approach for facilities that are not regulated by OSHA.

Comment 0319  The Graphic Arts Coalition ( GAC) supports the Agency's efforts to reduce overlapping training requirements. Allowing the facilities to determine which training requirements to follow, OSHA or US EPA, reduces overall training time as well as the paperwork involved.

Comment 0321  The Academy of Certified Hazardous Materials Managers ( ACHMM) is in favor of companies having the flexibility to choose either the RCRA or OSHA requirements, as both are essentially the same with minor variances.  216 Comment 0323  ConocoPhillips ( COPC) supports the Agency considering a person who has completed the OSHA training, including training for emergency response, under 29 CFR 1910.120( p) to have also fulfilled the RCRA emergency response training requirements. Regarding the option of continuing with a RCRA emergency response program in addition to the OSHA requirements, COPC believes allowing this choice will benefit those facilities that are not required to train under 29 CFR 1910.120( p).

Comment 0327  American Petroleum Institute ( API) supports the Agency finding that a person completing the OSHA training, including training for emergency response, under 29 CFR 1910.120( p) fulfills the RCRA emergency response training requirements. Providing the option of continuing with a RCRA emergency response program in addition to the OSHA requirements will benefit those facilities that are not required to train under 29 CFR 1910.120( p). API supports allowing a facility to select compliance with either the RCRA or OSHA emergency response training requirements.

Comment 0331  The National Paint and Coatings Association ( NPCA) supports EPA's initiative to eliminate the overlapping training requirements under the RCRA and the Occupational Safety and Health Administration ( OSHA). While EPA's Proposed Rule simply eliminated the RCRA requirements in favor of the OSHA regulations, in the Notice, EPA correctly addresses those cases where a facility is not otherwise required to comply with the OSHA requirements, by providing the flexibility for a facility to determine whether to follow the RCRA or OSHA training requirement. NPCA supports the change.

Response to All Comments: The final rule has been written to ensure that RCRA facilities are not required to provide separate training. We also note that facilities exempted from RCRA emergency response training would still have to comply with § § 264.16( a)( 1) and 265.16( a)( 1), which state: " Facility personnel must successfully complete a program of classroom instruction or on the job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part." OSHA's 29 CFR 1910.120 regulations require that employees understand and be able to perform the standard operating procedures that are part of their daily work. OSHA's 29 CFR 1910.38 Emergency Action Plan requirements include mandated training in procedures to be followed by employees who operate critical plant operations ( such as responding to ground water contamination incidents) during a spill or other emergency. Other commenters opposed the proposal because OSHA's 29 CFR 1910 requirements are not as comprehensive as the RCRA requirements regarding the universe of facilities. Specifically, they stated that OSHA's regulations are not required for all hazardous waste generators ( e. g., conditionally exempt small quantity generators under § 261.5 and small quantity generators under § 262.34) and certain treatment, storage, disposal facilities ( e. g., municipal, state and federal owned and operated facilities.) We agree, and facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. To ensure that all facilities are covered and that there are no gaps in the emergency response training requirements, we are providing flexibility by allowing facilities to eliminate redundant emergency response training requirements under RCRA and OSHA requirements ( as  217 opposed to the proposed rule's approach of requiring facilities to follow only the OSHA regulations). For example, if a facility can meet all of the RCRA emergency response training requirements through an OSHA training course, we would consider the facility in compliance with the regulation. On the other hand, if a facility cannot meet the emergency response training requirements through an OSHA training course, then it would be incumbent upon that facility to address any gaps ( for example, if OSHA did not include automatic waste feed cut off training, there would not be a problem as long as appropriate training occurs, such as combustor staff receives this training as part of its RCRA training.) Facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. We believe that this is a reasonable accommodation for all facilities. Generators and owners/ operators of treatment, storage, and disposal facilities should work with the appropriate permitting and/ or enforcement authority to ensure that the approach they take in developing an emergency response training program is in compliance with the requirements of § § 264.16 and 265.16.

Comment 0333  Onyx disagrees with EPA's proposal to allow facilities the flexibility of choosing whether to follow the RCRA or OSHA requirements for emergency response training. One set of training requirements should be selected to eliminate any confusion regarding the appropriate. While having more than one set of training requirements could cause confusion for facilities, employees, and regulators, it is essential that employees handling dangerous materials receive thorough and effective training. Onyx has found that the OSHA training requirements to be more comprehensive and useful in preparing our employees for safe management of hazardous wastes than the current RCRA regulations. We therefore recommend that the OSHA emergency response training requirements be mandated.

Response: We disagree. Our analysis indicates that the OSHA requirements are not as extensive as the RCRA requirements. Specifically, OSHA's regulations are not required at all hazardous waste generators ( e. g., conditionally exempt small quantity generators and small quantity generators and certain treatment, storage and disposal facilities ( e. g., municipal, state and federally owned and operated facilities).

Comment 0334  The Ohio Environmental Service Industry ( OESI) supports the proposal to allow owner/ operators to comply with personal emergency response training requirements under either RCRA or OSHA. We agree there is significant overlap in the training requirements and that, in either case, the protection of human health and the environment will not be jeopardized by the change.

Comment 0335  General Motors Corporation supports EPA's efforts to allow a facility the option to align emergency response training requirements with those dictated by OSHA, as appropriate.

Comment 0336  The Florida Department of Environmental Protection( FDEP) agrees with the original concept of incorporating by reference the OSHA emergency response training standards and with the new proposal to allow the facilities the option of implementing a training course that  218 meets either OSHA or the current RCRA requirements. However, the FDEP is very concerned that rule language not imply that RCRA does not have jurisdiction to enforce the emergency response training requirements. Training under 20 CFR Part 1910 is not REQUIRED at many hazardous waste generators and TSDF's  including municipal, state and federal owned and operated installations. These facilities could argue that because training is not REQUIRED by OSHA, it is not required by RCRA.

Comment 0338  The Utiltity Solid Waste Activities Group ( USWAG) supported EPA's original; proposal to eliminate a number of the personnel training record keeping requirements currently set forth in 40 CFR 265.16, which are incorporated by reference into the 90 day accumulation unit provisions. USWAG continues to support EPA's proposal to replace specific training components set forth in 285.16 ( a)( 3) with more comprehensive OSHA requirements. USWAG affirms EPA's conclusion that OSHA are more extensive that RCRA emergency response training requirements. Moreover, we concur with EPA's proposal to allow a facility owner/ operator to choose whether to follow the OSHA or RCRA requirements ( thereby recognizing that some facilities subject to RCRA emergency requirements may not be subject to all OSHA training requirements).

Comment 0346  The Department of Energy ( DOE) supports the goal of modifying the RCRA personnel training requirements to eliminate overlap with the OSHA regulations that establish training requirements for emergency response personnel. DOE agrees that this goal would be accomplished by allowing the facility owner/ operator to determine whether to follow RCRA or OSHA requirements ( as opposed to the proposed approach of requiring facilities to follow the OSHA regulations). Furthermore, the more flexible approach of allowing the facility owner/ operator to decide whether to follow the RCRA or OSHA requirements would address the concern raised in DOE's April 17, 2002 comment regarding potenetial misinterpretation of EPA's proposed regulatory text for 264.16 ( a)( 3)( i) and 265.16 ( a)( 3)( i).

Comment 0347  Eastman Chemical Company has no disagreement with allowing this flexibility to either follow RCRA or OSHA.

Response to All Comments: The final rule has been written to ensure that RCRA facilities are not required to provide separate training. We also note that facilities exempted from RCRA emergency response training would still have to comply with § § 264.16( a)( 1) and 265.16( a)( 1), which state: " Facility personnel must successfully complete a program of classroom instruction or on the job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part." OSHA's 29 CFR 1910.120 regulations require that employees understand and be able to perform the standard operating procedures that are part of their daily work. OSHA's 29 CFR 1910.38 Emergency Action Plan requirements include mandated training in procedures to be followed by employees who operate critical plant operations ( such as responding to ground water contamination incidents) during a spill or other emergency. Other commenters opposed the proposal because OSHA's 29 CFR 1910 requirements are not as comprehensive as the RCRA requirements regarding the universe of facilities.  219 Specifically, they stated that OSHA's regulations are not required for all hazardous waste generators ( e. g., conditionally exempt small quantity generators under § 261.5 and small quantity generators under § 262.34) and certain treatment, storage, disposal facilities ( e. g., municipal, state and federal owned and operated facilities.) We agree, and facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. To ensure that all facilities are covered and that there are no gaps in the emergency response training requirements, we are providing flexibility by allowing facilities to eliminate redundant emergency response training requirements under RCRA and OSHA requirements ( as opposed to the proposed rule's approach of requiring facilities to follow only the OSHA regulations). For example, if a facility can meet all of the RCRA emergency response training requirements through an OSHA training course, we would consider the facility in compliance with the regulation. On the other hand, if a facility cannot meet the emergency response training requirements through an OSHA training course, then it would be incumbent upon that facility to address any gaps ( for example, if OSHA did not include automatic waste feed cut off training, there would not be a problem as long as appropriate training occurs, such as combustor staff receives this training as part of its RCRA training.) Facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. We believe that this is a reasonable accommodation for all facilities. Generators and owners/ operators of treatment, storage, and disposal facilities should work with the appropriate permitting and/ or enforcement authority to ensure that the approach they take in developing an emergency response training program is in compliance with the requirements of § § 264.16 and 265.16.

Comment 0348  The Sierra Club, Working Group on Community Right To Know, U. S. Public Interest Research Group and the Clean Water Action register their objection to the proposed elimination of some training requirements for RCRA workers. They stand by their original comments in this area but for the record they are concerned primarily that if worker training is reduced the EPA will weaken the protection for the environment, as well as workers protection. These are not primarily " gaps in workplace safety and health" but more gaps in protection of the environment by permitting a less well trained workforce. They also stated that EPA fails to address the overall question of jurisdiction between EPA and OSHA The requirements between the two organizations may seem similar, however OSHA regulations are designed to regulate the protection of worker health and safety while EPA's requirements ensure that workers are trained to protect the environment.

Response: We disagree. We do not believe that environmental protection will be reduced. Generators and owners and operators of hazardous waste management facilities are still required to comply with 264/ 265.16 regardless of what option they choose. Recognizing that hazardous waste management facilities vary in size and complexity allowing a facility to use OSHA or RCRA to meet the emergency training requirements allows a facility to develop training programs that better fit their situation.

Comment 0349  The Arkansas Department of Environmental Quality ( ADEQ) does not concur with EPA's proposed approach of allowing the flexibility to determine whether to follow RCRA or  220 OSHA requirements for emergency response training. By allowing facility owners/ operators the flexibility to pick and choose which set of agency regulations to follow may lead to confusion in evaluating compliance with either standard. If flexibility to select either RCRA or OSHA emergency response training requirements is necessary to prevent program duplication, then EPA or the authorized state, as applicable, should determine which standard to apply, not the facility owner/ operator. However, we do not agree that the current requirements create duplication of effort or confusion among the regulated community Response: We disagree. We do not believe that allowing facilities the flexibility to decide whether to use OSHA or RCRA to fulfill their emergency response training would lead to confusion. In fact we believe the opposite will happen. By allowing facilities the option to determine what training program best fits their needs overlap and duplication will be minimized thus leading to a less confusing training program. Finally, facilities are in a much better position to decide what is best them for them in designing their training programs and that EPA nor authorized states should be determining what standards apply.

Comment 0352  The Los Alamos National Laboratory ( LANL) supports providing facilities with the flexibility of replacing the RCRA emergency response training in 40 CFR 264.16( a)( 3) and 265.16( a)( 3) with the 29 CFR 1910.120 ( p) OSHA training requirements or allowing facilities to choose whether to comply with RCRA or OSHA, or allowing facilities to develop a training program equivalent to RCRA.

Comment 0354  The Coalition for Responsible Waste Incineration ( CRWI) supported removing the RCRA requirements for emergency response training where they overlapped with OSHA requirements. However, facilities that have met their OSHA requirements through a RCRA training program may want to retain their current training program. Since the requirements for both programs are the same, CRWI see no reason to prefer one over the other. It makes sense for the Agency to allow either training scheme to meet the requirement. CRWI supports this change. Response to Comments: This, however, is not EPA's intention. The final rule has been written to ensure that RCRA facilities are not required to provide separate training. We also note that facilities exempted from RCRA emergency response training would still have to comply with § § 264.16( a)( 1) and 265.16( a)( 1), which state: " Facility personnel must successfully complete a program of classroom instruction or on the job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part." OSHA's 29 CFR 1910.120 regulations require that employees understand and be able to perform the standard operating procedures that are part of their daily work. OSHA's 29 CFR 1910.38 Emergency Action Plan requirements include mandated training in procedures to be followed by employees who operate critical plant operations ( such as responding to ground water contamination incidents) during a spill or other emergency. Other commenters opposed the proposal because OSHA's 29 CFR 1910 requirements are not as comprehensive as the RCRA requirements regarding the universe of facilities. Specifically, they stated that OSHA's regulations are not required for all hazardous waste generators ( e. g., conditionally exempt small quantity generators under § 261.5 and small quantity generators under § 262.34) and certain treatment, storage, disposal facilities ( e. g., municipal,  221 state and federal owned and operated facilities.) We agree, and facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. To ensure that all facilities are covered and that there are no gaps in the emergency response training requirements, we are providing flexibility by allowing facilities to eliminate redundant emergency response training requirements under RCRA and OSHA requirements ( as opposed to the proposed rule's approach of requiring facilities to follow only the OSHA regulations). For example, if a facility can meet all of the RCRA emergency response training requirements through an OSHA training course, we would consider the facility in compliance with the regulation. On the other hand, if a facility cannot meet the emergency response training requirements through an OSHA training course, then it would be incumbent upon that facility to address any gaps ( for example, if OSHA did not include automatic waste feed cut off training, there would not be a problem as long as appropriate training occurs, such as combustor staff receives this training as part of its RCRA training.) Facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. We believe that this is a reasonable accommodation for all facilities. Generators and owners/ operators of treatment, storage, and disposal facilities should work with the appropriate permitting and/ or enforcement authority to ensure that the approach they take in developing an emergency response training program is in compliance with the requirements of § § 264.16 and 265.16.

264.16( d) Personnel training.

Document #: 0184 We support this change, but only with modification of the proposed language. Personnel training  Removing items ( d)( 1), ( 2) and ( 3) makes it more difficult ( if not impossible) to determine which employee records must be reviewed during inspections, and what type of training is required for each employee. How do regulators identify applicable staff to ensure compliance with this requirement? There are two reasonable options: Drop the training requirement altogether and evaluate the facility solely on its compliance with the regulations ( performance based), or have the facility maintain an annual certification statement that all employees have received appropriate training. Random employee interviews can be use to confirm that the training was given.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0207 Finally, Lion notes in the proposal that EPA is retaining the requirement to maintain training records " at the facility." It is Lion's experience that many organizations are working to centralize records of training and certification for more effective and more efficient management. Most such centralized recordkeeping systems are electronically based, providing for record retrieval at the  222 regulated facility, within corporate offices and elsewhere. We believe that requiring records to be physically present at the regulated facility is unnecessary and will result in duplicate recordkeeping in many cases.

Recommended regulatory changes:

At a minimum, we believe that 40 CFR 264.16( d) should be revised to read as follows:

( d) The owner operator must maintain records at the facility or electronically available to the facility, documenting the training or job experience required under paragraphs ( a), ( b) and ( c) of this section that has been given to and completed by facility personnel.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

264.16( d)( 1) Personnel training requirements  record job title:

Proposed Action: Eliminate  based on comments from a state expert, we are recommending that these requirements be deleted. The rationale is that the job title doesn't necessarily correspond to the work the employee does, and has little bearing on whether the employee is capable of doing the job safely. Final Action: The Agency is not pursuing this change.

Document #: 0165 While it is important to maintain " records documenting the training or job experience... given to and completed by facility personnel," 264.16( d)( 4), at the facility for agency inspection, we agree that EPA does not need to review job titles, job descriptions, or a written description of the type and amount o training. Therefore, we concur that 264.16( d)( 1)( 3) can be deleted.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0169 Eliminate based on comments from a state expert, we are recommending that these requirements be deleted. The rationale is that the job title doesn't necessarily correspond to the work the employee does, and has little bearing on whether the employee is capable of doing the job safely.

We oppose this change. This is an insignificant burden and the job titles are used to identify facility personnel who require the RCRA training or specialized training because of their position. All facility personnel are not required to have RCRA training, only employees exposed to or are  223 responsible for hazardous waste duties. Generally, this information is standard in the human resource division at a company.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0181 ( 264/ 265.16( d)( 1)) Job titles should be created that differentiate between roles of management and labor in responsibility for hazardous waste management. This provides a clear path for decision making. The lack of job titles will hurt criminal prosecution, by requiring the prosecutor to prove who was responsible for the waste management at the facility.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0213 We do not support the elimination of this requirement. The rationale given argues for better matching of job titles and descriptions to actual work rather than eliminating them from the plan. We find this information to be critical for identifying persons to interview in the course of compliance inspections and investigations. The job title is important for clarity, i. e., so that staff that work under each job title can be easily identified. Also, the job title is used as a category by which the corresponding training requirements are developed. If you don't know what someone does via a job title and description ( 264.16( d)( 2)), then it is very difficult to gauge whether their training has been sufficient.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0218 Eliminate requirement to record job titles in training.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0345 RCRA/ OSHA Overlap in Emergency Response Training. GAO study found OSHA and EPA worker training requirements in emergency response procedures to be duplicative, and an " unnecessary burden" and are proposed to be eliminated.  224 Although OSHA my have greater employee expertise, their inspections are severely limited by lack of State and federal funding. EPA and State RCRA representatives, however, are routinely visiting these facilities, making efficient use of existing public employees to enforce this very important training requirement. OSHA employees, because of funding, do not regularly inspect RCRA facilities without a referral from the State environmental agency. States may lack the authority to enforce or cite OSHA violations.

The proposal to delete the requirement for documenting job titles and job description would reduce the ability to determine whether adequate training has been imparted to the employees, diminishing the effectiveness of RCRA oversight on personnel training.

Response: The Agency acknowledges and appreciates this comment and refers the reader to 264/ 5.16( a)( 3) of the document for further discussion. In addition we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3). The final rule has been written to ensure that RCRA facilities are not required to provide separate training. We also note that facilities exempted from RCRA emergency response training would still have to comply with § § 264.16( a)( 1) and 265.16( a)( 1), which state: " Facility personnel must successfully complete a program of classroom instruction or on the job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part." OSHA's 29 CFR 1910.120 regulations require that employees understand and be able to perform the standard operating procedures that are part of their daily work. OSHA's 29 CFR 1910.38 Emergency Action Plan requirements include mandated training in procedures to be followed by employees who operate critical plant operations ( such as responding to ground water contamination incidents) during a spill or other emergency. Other commenters opposed the proposal because OSHA's 29 CFR 1910 requirements are not as comprehensive as the RCRA requirements regarding the universe of facilities. Specifically, they stated that OSHA's regulations are not required for all hazardous waste generators ( e. g., conditionally exempt small quantity generators under § 261.5 and small quantity generators under § 262.34) and certain treatment, storage, disposal facilities ( e. g., municipal, state and federal owned and operated facilities.) We agree, and facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. To ensure that all facilities are covered and that there are no gaps in the emergency response training requirements, we are providing flexibility by allowing facilities to eliminate redundant emergency response training requirements under RCRA and OSHA requirements ( as opposed to the proposed rule's approach of requiring facilities to follow only the OSHA regulations). For example, if a facility can meet all of the RCRA emergency response training requirements through an OSHA training course, we would consider the facility in compliance with the regulation. On the other hand, if a facility cannot meet the emergency response training requirements through an OSHA training course, then it would be incumbent upon that facility to address any gaps ( for example, if OSHA did not include automatic waste feed cut off training, there would not be a problem as long as appropriate training occurs, such as combustor staff receives this training as part of its RCRA training.) Facilities not subject to OSHA training requirements would have to comply with the RCRA training requirements. We believe that this is  225 a reasonable accommodation for all facilities. Generators and owners/ operators of treatment, storage, and disposal facilities should work with the appropriate permitting and/ or enforcement authority to ensure that the approach they take in developing an emergency response training program is in compliance with the requirements of § § 264.16 and 265.16.

264/ 265.16( d)( 1)( d)( 3)

Document #: 0144 Although we agree that the facility does not necessarily need to keep a list of job titles and descriptions for hazardous waste personnel, they should maintain a list of personnel that actively handle/ manage the facility's hazardous waste personnel, they should maintain a list of personnel that actively handle/ manage the facility's hazardous waste or actively participate in emergency response in order to ensure those people are properly trained. The records should also continue to document the type and amount of training received by each individual. The best way to determine whether or not an employee has been adequately trained is to pick an employee from the documentation at the facility and then question that employee about the type of training that they have received. Failure to maintain this information will weaken the inspector's capabilities to ensure appropriate staff are trained and will weaken the ability to enforce the regulation.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0204 CSHEMA supports this change in 40 CFR 264.16( d)( 1, 2 & 3). In addition, we believe it is unnecessary to updates to facility records when job descriptions and titles change. This simply creates an unnecessary burden and does nothing to protect human health or the environment.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0217 Eastman supports the proposal to eliminate the requirements that require the recording of employee's job titles and job descriptions in association with training activities. Eastman has found it burdensome to keep up with these recordkeeping requirements, and believes the retention of such information has little to no value in determining whether an employee is capable of doing his/ her job safely Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).  226 Document #: 0337 SOCMA urges EPA to expand its three year record retention policy to employee training records. Since training records. Since training records are routine and are not needed for closure of a facility, EPA should allow training records to be discarded after three years. This option would reduce the amount of administrative time needed to review training records, as well as the paperwork burden upon the facilities, and would be consistent with EPA's state policy of record retention.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0337 SOCMA agrees with EPA that maintaining records of job titles and job descriptions for individuals who receive training is unnecessary and does not contribute to the safety of a facility. Accordingly, SOCMA supports EPA's proposal to eliminate these non essential recordkeeping requirements.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

264.16( d)( 2) Personnel training requirements  record job description:

Proposed Action: Eliminate  based on comments from a state expert, we are recommending that these requirements be deleted. The rationale is that this requirement has little bearing on whether the employee is capable of doing the job safely. Final Action: The Agency is not pursuing this change.

Document #: 0169 Eliminate based on comments from a state expert, we are recommending that these requirements be deleted. The rationale is that this requirement has little bearing on whether the employee is capable of doing the job safely.

We oppose this change. This is an insignificant burden. The job descriptions are used to ensure that the personnel are properly trained for the work they actually perform. The job descriptions include a detailed description of the exposure and responsibilities regarding hazardous waste. Generally, this information is standard in the human resource division at a company.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are  227 properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0181 ( 264/ 265.16( d)( 2)) Job descriptions should be created that differentiate between roles of management and labor as responsible for hazardous waste management. This stops the facility from using confusion as a defense of fault in waste management and provides a clear decision making path. The lack of job descriptions will hurt criminal prosecution, by requiring the prosecutor to prove who was responsible for the waste management at the facility.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3). .

Document #: 0213 Washington State does not support the elimination of this requirement. This information is useful for identifying persons to interview in the course of compliance inspections and investigations. The job description is important for clarity, i. e., so that the staff assigned to the job do not perform functions beyond their job description and associated training requirements. It is also helpful for our use in evaluating the appropriateness of the facility's Training Plan. Identifying who's responsible for various tasks has been particularly important when resolving noncompliance situations. If you don't know what someone does via a job title and description ( 264.16( d)( d) 0, then it is very difficult to gauge whether their training has been sufficient.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0218 Eliminate requirement to record job description..

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

264/ 265.16( d)( 2)&( 3)

Document #: 0241 The proposal would eliminate the requirements that an employee's written job description and written description of training be maintained at the facility. The rationale given in the preamble is that these requirements do not have a bearing on whether an employee can do his job safely. For the Agency, or even the facility itself, to know whether an employee is trained properly, the  228 employee's responsibilities and type and amount of training must be known. Any facility who properly trains its employees will have this information in written form. Therefore, for facilities that comply with the regulations, the proposal will not reduce burden. We strongly disagree with any proposal to eliminate the requirements for maintenance of written job responsibilities and written descriptions of the types and amounts of training received.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

264.16( d)( 3) Personnel training requirements  record type and amount of training that will be provided:

Proposed Action: Eliminate  based on comments from a state expert, we are recommending that these requirements be deleted. The rationale is that this requirement isn't necessarily a good indicator of whether an employee is capable of doing the job safely. Final Action: The Agency is not pursuing this change.

Document #: 0169 Personnel training requirements record type and amount of training that will be provided: Eliminate based on comments from a state expert, we are recommending that these requirements be deleted. The rationale is that this requirement isn't necessarily a good indicator of whether an employee is capable of doing the job safely.

We oppose this change. This is an insignificant burden. This requirement identifies the training requirements for each job. The training requirements are specific to each job title. This requirement ensures that specific training is required on a regular basis. Training in confined space is not the same as training for labeling an placarding.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0181 ( 264/ 265.16( d)( 3)) There are times that training records do not determine how well a person is trained for a particular position. However, with training records, it eliminates the defense of ignorance and requires that a person be provided the training opportunity.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).  229 Document #: 0213 Washington State does not support the elimination of this requirement. This requirement provides documentation of the training deemed necessary for safe, compliant operations of the facility. Reviewing this plan can identify potential gaps in training. During compliance inspections and investigations this documentation is compared with the training record documentation to help determine if the training requirements are met.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

Document #: 0218 Eliminate requirement to record type and amount of training to be provided.

Response: The Agency acknowledges and appreciates this comment. Stakeholders have persuaded us that this information is critical in determining whether facility personnel are properly trained, hence we are not pursuing any changes to the requirements in 264/ 5( d)( 1)( 3).

264.34( a)( 1)( i) Access to communications or alarm system. Accumulation time.

Document #: 0184 We disagree with this proposed change. We believe EPA is taking too narrow a view regarding this matter. EPA seems to be implying that if a facility performs well, it should be able to change a regulatory agency's inspection schedule. First, we don't subscribe to the basic premise. Second, the citation is actually applicable to generators and facilities. It is applicable to SQGs and LQGs by reference from 262.34( a)( 1)( i). Since we are able to inspect SQG's on average only once every few years or more, we don't see how the public's safety is served by stating that one favorable Compliance Evaluation Inspection can demonstrate a facility's suitability for reduced oversight.

Response: The Agency acknowledges and appreciates this comment but we are not pursuing any changes to the requirements in 264.34( a)( 1)( i).

264.52( b) Contingency Plan  Coordination with other plans: Proposed Action: Modify  Plan should be based on the One Plan guidance, which will eliminate the need to prepare multiple contingency plans for Agency requirements. Final Action: The Agency is promulgating as proposed.

Document #: 0134 DOE supports the addition of clarifying regulatory language that encourages hazardous waste facility owners/ operators to consider developing single, integrated contingency plans. The  230 Department requests, however, that EPA consider also adding language to the regulations clarifying that, when modifications are made to non RCRA provisions in an integrated contingency plan, making such changes would not trigger the need for a RCRA permit modification. DOE requests this clarification because one DOE facility reports that the primary reason it has not previously integrated its RCRA contingency plan with other emergency or contingency plans at the facility ( as allowed by existing 40 CFR 264,52( b)) is a concern about that applicability of RCRA permit modification requirements. Specifically, it is unclear whether RCRA facilities having integrated contingency plans are required to process changes to such plans as RCRA permit modifications, whether or not the provisions being changed are based on RCRA requirements.

DOE suggest that a provision be added to 40 CFR 270.42 indicating that a change to a RCRA facility's integrated contingency plan requires a RCRA permit modification only if the item being changed implements a requirement imposed by RCRA. Specifically, DOE suggests the following addition to 40 CFR 270.42:

270.42 Permit modification at the request of the permittee.

( k) Modifications to Integrated Contingency Plans. No permit modification is necessary to change a provision in an integrated Contingency Plan, if the integrated contingency plan was developed pursuant to 264.52( b), and if the provision being changed is not mandated by 264.52( a),( c), ( d), ( e), or ( f).

Response: The Agency acknowledges and appreciates this comment. In today's rule, we are amending 264/ 5.52( b) of the RCRA regulations to provide owner/ operators of TSDFs the option of developing one contingency plan based on the Integrated Contingency Plan Guidance.

Document #: 0165 TSD facilities must have a number of different contingency plans under various environmental laws. EPA has been asked to streamline and consolidate these contingency plans to reduce the paperwork burden on facilities. EPA has responded that it already allows combined plans under the " Integrated Contingency Plan Guidance" issued in 1996. Therefore, EPA proposes to amend 264.52( b) to clearly state that a combined contingency plan which meets all regulatory requirements is allowed.

An integrated contingency plan is not a substitute for streamlining and consolidating the contingency plan requirements of various environmental programs. EPA should make a genuine effort to review all contingency plan requirements, eliminate duplication and overlap, and promulgate a truly consolidated standard that eliminates unnecessary paperwork burdens. In the meantime, the ETC supports the modest change that EPA would make to the RCRA requirement.

Response: The Agency acknowledges and appreciates this comment. In today's rule, we are amending 264/ 5.52( b) of the RCRA regulations to provide owner/ operators of TSDFs the option of developing one contingency plan based on the Integrated Contingency Plan Guidance.  231 Document #: 0166 Safety Kleen agrees with the proposed language to allow Consolidated Contingency Plans, but feels that this does little to reduce the burden of multiple agency requirements for emergency response plans. In the past, Safety Kleen has received quotes for up to $ 10,000 for consulting firms to produce consolidated contingency plans from existing plans. This cost is due to the time consuming cross referencing that must be done on the plan to incorporate all the agencies requirements in one document in a manner that can be easily inspected by all agencies.

The agencies have turned a blind eye to this problem for years. It is time that the agencies got together and agreed upon one plan which could be used across all disciplines for emergency response. Until this is done, most facilities will not develop Integrated Contingency Plans and will instead maintain 4  6 individual plans that satisfy the regulations but cause great confusion at the time of an actual emergency. Safety Kleen encourages EPA to take the initiative on this project in order to reduce the burden on the regulated community and provide adequate protection to human health and the environment during emergency response actions.

Response: The Agency acknowledges and appreciates this comment. In today's rule, we are amending 264/ 5.52( b) of the RCRA regulations to provide owner/ operators of TSDFs the option of developing one contingency plan based on the Integrated Contingency Plan Guidance. With regard to the commenters concern with emergency response, this is an area that the Agency may look into in the future, it is, however, out of scope with today's rulemaking.

Document #: 0169 Modify Plan should be based on the One Plan guidance, which will eliminate the need to prepare multiple contingency plans for Agency requirements. We agree with this proposal.

Response: The Agency acknowledges and appreciates this comment. In today's rule, we are amending 264/ 5.52( b) of the RCRA regulations to provide owner/ operators of TSDFs the option of developing one contingency plan based on the Integrated Contingency Plan Guidance.

Document #: 0184 We disagree with this proposed change regarding contingency plans  Since use of the National Response Teams guidance is not a requirement, the proposed language is redundant and belabors the point that facilities may combine plans developed for other programs. The reference to the guidance should be a note, not part of the regulation.

Response: We disagree with the commenter. In today's rule, we are amending 264/ 5.52( b) of the RCRA regulations to provide owner/ operators of TSDFs the option of developing one contingency plan based on the Integrated Contingency Plan Guidance. Having the option to consolidate into one plan will eliminate the confusion facilities face when they must decide which of the contingency plans is applicable to a particular emergency. In addition, a single plan will provide " first responders" with a mechanism for complying with multiple regulatory requirements. The adoption of a standard plan will ease the burden of coordination with local emergency planning committees . Thus, the regulatory change will improve the protectiveness of facility response  232 actions. . Document #: 0213 Generally we support this concept however we have had facilities who do not want to develop one contingency plan. That is because they do not want non RCRA items to be included in the RCRA permit. We have been able to write some permits so that the non RCRA items are not included. When facilities use the " One Plan" guidance, it is important to make sure that the RCRA requirements cannot get lost of lessened; for example, the notification and reporting requirements when the contingency plan is implemented.

Response: The Agency acknowledges and appreciates the comment. In today's rule, we are amending 264/ 5.52( b) of the RCRA regulations to provide owner/ operators of TSDFs the option of developing one contingency plan based on the Integrated Contingency Plan Guidance. Having the option to consolidate into one plan will eliminate the confusion facilities face when they must decide which of the contingency plans is applicable to a particular emergency. In addition, a single plan will provide " first responders" with a mechanism for complying with multiple regulatory requirements. The adoption of a standard plan will ease the burden of coordination with local emergency planning committees . Thus, the regulatory change will improve the protectiveness of facility response actions.

Document #: 0216 We agree that coordination with other plans is appropriate and that the plan should be based on consistent guidance. Coordination my eliminate the need for a facility to prepare multiple contingency plans.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0218 Modify Contingency Plan requirements to eliminate need to prepare multiple documents.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0286 This is an unnecessary change to the rule. Currently there is no rule which would not allow one plan. No burden reduction will take place with the change to this rule. In fact, it will increase the burden on the state only to change a rule which would have no impact.

Response: We disagree with the commenter. In today's rule, we are amending 264/ 5.52( b) of the RCRA regulations to provide owner/ operators of TSDFs the option of developing one contingency plan based on the Integrated Contingency Plan Guidance. Having the option to consolidate into one plan will eliminate the confusion facilities face when they must decide which of the contingency plans is applicable to a particular emergency. In addition, a single plan will provide " first responders" with a mechanism for complying with multiple regulatory requirements. The adoption of a standard plan will ease the burden of coordination with local emergency planning  233 committees . Thus, the regulatory change will improve the protectiveness of facility response actions.

264.52( e)

Document #: 0134 DOE believes it is generally unnecessary for the contingency plan to include a physical description and outline of the capabilities of every item of common emergency equipment, such as fire extinguishers. Accordingly, DOE suggests that 40 CFR 264.52( e) be revised so that such information is required only for items that are unique or have customized uses at the permitted facility.

Response: This comment is outside the scope of today's rulemaking.

264/ 5.56 Document #: 0155 The current RCRA requirements to provide notification that certain repairs or emergency procedures have been completed provides valuable information to the regulatory agencies that is used to respond to public inquiries.

Response: The Agency acknowledges and appreciates this comment.

264.56( h)/ 265.57( h)

Document #: 0042 Incorrect citation given, might be 264.56( i), 265.56( i) Notification of Compliance  Notify Regional Administrator that facility is in compliance with Part 264/ 265.56 before resuming operations.

Response: The Agency acknowledges and appreciates this comment.  234 264.56( i) Emergency Procedures  Notify Regional Administrator that facility is in compliance with 264.56( h) before resuming operations:

Proposed Action: Eliminate  an unnecessary requirement. This is a notification to the regulatory Agency that the emergency coordinator has ensured that no incompatible waste is being treated at the site and that the emergency equipment is ready to use again. This emergency coordinator does not need to have this notification to ensure that these tasks are done. The environmentally protective activities are still in place, and are documented in the facility operating record, as well as documented by the emergency coordinator. Final Action: We Are Eliminating the Requirement for Facilities to Notify That They Are in Compliance After a Release.

Document #: 0165 Should an emergency occur at a TSD facility, the emergency coordinator must take actions to implement the contingency plan which include notifying the appropriate government officials. These response actions are specified in detail in 264.56. After the emergency is over, the coordinator must note the details of his actions in the facility's operating record, and he must also submit a report on the incident to the regulatory authorities. In view of these requirements, it is not necessary for the emergency coordinator to also notify the regulatory authorities that cleanup procedures have been completed before resuming operations. This additional notification requirement does not provide any substantive safety protection. We therefore agree with EPA's proposal to eliminate this notice requirements in 264.56( i).

Document #: 0169 Emergency Procedures Notify, Regional Administrator that facility is in compliance with 264.56( h) before resuming operations: Eliminate an unnecessary requirement. This is a notification to the regulatory Agency that the emergency coordinator has ensured that no incompatible waste is being treated at the site and that the emergency equipment is ready to use again. This emergency coordinator does not need to have this notification to ensure that these tasks are done. The environmentally protective activities are still in place, and are documented in the facility operating record, as well as documented by the emergency coordinator.

We oppose the elimination of this requirement. This is an important notification and is certainly not overly burdensome on a facility that has had to implement its contingency plan. This notification affords the regulatory agency an opportunity to perform an inspection to insure that the corrective measures are adequate. A bigger burden is a reoccurrence of the emergency.

Document #: 0184 Emergency procedures. We disagree with this proposed change. Part 264 also applies to facilities that should have had a permit, but did not obtain one ( illegal TSDFs). For these facilities it is advantageous to submit information directly to the agency, rather than just maintain it on site,  235 because such facilities, since they have operated illegally, have demonstrated that they have difficulty operating within the regulations without state or federal oversight.

Document #: 0213 We do not see that this is an overly burdensome requirement. Facilities are more careful to be sure a situation has actually been remedied if it must report that the problem has been fixed. In Washington, we have added a requirement that facilities submit a description of corrective action taken to prevent reoccurrence.

Document #: 0218 Eliminate notification requirement certifying compliance before resuming operations.

Response to Comments: The Agency has decided to eliminate this requirement. We received comments that both supported and opposed the elimination of the notifications required by § § 264.56( i) and 265.56( i). These notifications require the facility owner or operator to notify the Regional Administrator and appropriate State and local authorities after an emergency action has taken place, that the facility is in compliance with § § 264.56( h) and 265.56( h), respectively. Sections 264.56( h) and 265.56( h) require the facility emergency coordinator to ensure that no wastes that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and that emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed. Several commenters generally supported the elimination of these notification provisions. Other commenters were opposed to eliminating these provisions because they thought that it was prudent for the regulatory agency to receive notification that a facility was ready to again manage hazardous waste after emergency measures were implemented and releases were cleaned up. We have decided to finalize the elimination of this notification provision. The Regional Administrator and appropriate State and local authorities will still be getting a report 15 days after the emergency incident ( as required in § § 264.56( j) and 265.56( j)). This report will specify the details of the incident that required implementation of the contingency plan. In most cases, the incident is likely to be relatively minor, and operations may even be ready for resumption with the 15 days. The actions to be taken ( i. e., not handling incompatible waste and cleaning emergency equipment) are straightforward and it is not clear what value a simple notification would add. On the other hand, in major incidents the State would likely send personnel on site and would be in a position to ensure that an appropriate response was taken before operations resumed. Therefore, we have decided to eliminate this notification requirement.

264.70  Applicability Document #: 0208 Incidentally  a typographical error in 40 CFR 264.70 should be corrected. The current language says that 264.73( b) only applies to permittees who treat store or dispose of HW on site where such  236 wastes were generated. This is a typo from the original preamble, which read " 264.73( b)( 9) is..." ( 7/ 15/ 85, 50 FR 28734).

Response: The Agency acknowledges and appreciates this comment. We are not pursuing any burden reduction changes to 264.70.

264/ 265.73  Operating Record.

Document #: 0020 Reports specific to certain units or activities are valuable and should be retained by EPA as reporting requirements. Landfills, Surface Impoundments, Land Treatment facilities, Waste Piles, Tanks and Container Storage, Incinerators, Treatment facilities, Miscellaneous units and Commercial facilities all have specific reporting requirements intended to protect human health. These compliance related reporting requirements should not be dismissed lightly, and a comprehensive examination should be performed to assess how each type of facility could affect the environment in the absence of the required reporting and recordkeeping. If the reporting requirement is removed, one incentive to complete the work will be eliminated, and the agency's existing ability to review the quality of this work will be weakened.

Response: The Agency appreciates this comment and agrees that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction.

Document #: 0133 Reduce the length of time that certain files must be maintained on site.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0158 SOCMA supports EPA's proposal to reduce retention times for certain routine records that are not necessary for facility closure. SOCMA agrees that three years is a reasonable time frame for keeping routine records. Many SOCMA members are small businesses with significant space constraints in their facilities. Allowing these facilities to discard irrelevant records after three years will have a positive impact on their ability to manage and retrieve data that is needed.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0165  237 We agree with EPA that important operating records should be kept for the life of a facility, but certain records can be discarded after an appropriate time without affecting the protection of human health and the environment. 67 Fed. Reg. 2529 cols. 1 2 Specifically, information about what wastes are disposed at the facility, where the disposed waste is located, and information relevant to facility closure should be kept for the life of the facility. However, the voluminous records that result from routine operations related to waste analyses, self inspections, notices to generators, waste minimization certifications, and the many LDR notices and certifications can be discarded after a reasonable time. The current record retention requirements impose a very heavy burden on owners and operators of TSD facilities. Therefore, we emphatically support EPA's proposal to amend 264.73 to require that such routine records be kept for three years.

Response: The Agency appreciates this comment and agrees that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction.

Document #: 0166 Safety Kleen agrees with the proposal to reduce the operating record retention period for routine records to three years.

Response: The Agency appreciates this comment and agrees that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. More routine information, such as whether certain notices were filed and records of inspections, can be discarded after three years. In the RCRA regulations, we have generally settled on three years as a reasonable time frame for keeping records. This is consistent with other Agency programs, such as the Toxic Substances Control Act and the Toxic Chemical Release Reporting Community Right to Know programs, that impose a three year record retention time in their regulations.

Document #: 0169 The reduction in the record retention requirements for all documents to be kept for three years combined with the proposed elimination of certain submittals will adversely affect the public's access to information and the agency's ability to adequately regulate facilities that are not routinely inspected. Records, including designs and certifications, submitted to the regulatory agencies are kept indefinitely and can easily be accessed by the public and are available even when a facility goes out of business. These types of records and information are also extremely helpful if the  238 government is required to close a facility or respond to an emergency at the facility. Many proposed changes will be virtually rendered null if facilities are allowed to determine what is adequate and to discard important certifications after three years.

Response: The Agency appreciates this comment. Certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. More routine information, such as whether certain notices were filed and records of inspections, can be discarded after three years. In the RCRA regulations, we have generally settled on three years as a reasonable time frame for keeping records. This is consistent with other Agency programs, such as the Toxic Substances Control Act and the Toxic Chemical Release Reporting Community Right to Know programs, that impose a three year record retention time in their regulations.

Document #: 0198 NPCA supports the reduction of RCRA retention policies to 3 years from the life of the facility for operating records. As stated, many of our members are small businesses and therefore have significant space restraints. A standardized record retention policy of 3 years for routine company records under RCRA, just as with other EPA regulations provides a reasonable time frame for retention without impacting the protections to human health and the environment.

Response: The Agency appreciates this comment and agrees that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction.

Document #: 0202 DoD does not support the proposal to change the record retention period for LDR notifications to 3 years.

Current regulations in 40 CFR 264/ 265.73 require receiving facilities to maintain LDR notifications until facility closure. EPA proposes to change this to 3 years from the date entered into the operating record.

DoD does not support this change because 40 CFR 268.7 a generator is only required to submit a one time notification to the TSDF receiving their waste. Conceivably, a generator may ship the same waste stream for a number of years under a single LDR notice. If the TSDR is not required to maintain this record, a burden would be placed on the generator to either resubmit notifications  239 or risk having their waste mismanaged because the receiving facility would not have adequately information regarding whether the waste requires treatment.

Recommendation: Continue to require the TSDF to maintain LDR notifications for the operating life of the facility.

Response: The commenter evidently does not realize that the record retention for LDR paperwork has been three years since early in the LDR program development.

Document #: 0202 As proposed, the record retention time for 264.73( b)( 4) and 265( b)( 4), summary reports from incidents that require implementation of contingency plans, would be reduced to three years. We believe this documentation should be retained for facility closure purposes, as hazardous materials or wastes may be released during an incident that requires implementation of the contingency plan.

Recommendation: Revise proposed 40 CFR 264.73( b) and 265.73( b) to include retention of information documented pursuant to 264.73( b)( 4) and 265.73( b)( 4) for the life of the facility.

Response: The Agency appreciates this comment and agrees that certain information must be maintained until the closure of the facility. However, we disagree that this information should be kept for more than three years. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction.

Document #: 0240 DTSC opposes this proposal. We believe that reducing the retention time of the facility operating record to three years would compromise the agency's ability to fulfill the mandate of protection of public health and the environment. Historic information about past practices, including chemicals used or handled at the facility and past spills or discharges is essential for evaluating the need for corrective action to address past releases and to evaluate long term groundwater investigations. Moreover, the current proposal to eliminate or reduce submittals increase the need for longer retention of the operating record so that information would be available upon inspection. The reduction in record retention from the life of the facility to three years coupled with the elimination of many reports and notices regarding occurrences at the facility will have a potential adverse affect on the protection of public health an the environment.

Response: The Agency appreciates this comment and but feels that only certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with  240 it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. More routine information, such as whether certain notices were filed and records of inspections, can be discarded after three years. In the RCRA regulations, we have generally settled on three years as a reasonable time frame for keeping records. This is consistent with other Agency programs, such as the Toxic Substances Control Act and the Toxic Chemical Release Reporting Community Right to Know programs, that impose a three year record retention time in their regulations In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done.

Document #: 0315 ACC strongly supports EPA's proposal to modify the 264.73 and 265.73 operating record requirements to require only a three year record retention limit for keeping the information required by, or reference in 264.73 and 265.73. For example, we understand this to mean that the monitoring, testing or analytical data, and corrective action records required by Subpart F and the various regulatory citations contained in 264.73( b)( 6) would only have to be retained for three years. This would mean that the large volume of " continuous" operating data that is generated annually for incinerators would now only have to be retained for three years. ACC strongly supports this proposed change, as the resources required to maintain this data for the life of the facility are onerous.

While the NODA does not address the record keeping requirements for hazardous waste burned in boilers and industrial furnaces ( Part 266, Subpart H), the January 17, 2002, proposed rule proposed reducing the record keeping requirements from the life of the facility to three years. ACC is assuming that the Agency intends to incorporate those proposed changes in the final rule so that the present burden associated with the record keeping retention periods for hazardous waste boilers, industrial furnaces and incinerators is reduced and is consistent for all of these hazardous waste combustion units.

In addition, some time ago EPA proposed the electronic and record keeping rule, " CROMERRR", which would require that all data stored electronically would be retrievable and readable throughout its retention period. Life of the facility retention requirements would make the implementation of CROMERRR extraordinarily expensive, burdensome and close to technically impossible.

As discussed in the NODA, we also support changing the requirement of 264.73( b)( 8) and  241 265.73( b)( 8) to only require that current closure and post closure estimates be kept at the facility. This change would be consistent with the present requirements of 264.142( d) and 264.144( d).

Response: The Agency appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done. In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that will be subject to the upcoming MACT standards.

Document #: 0319 The GAC supports EPA's proposed provision adopting a three year limit for keeping information under the operating record requirements of Parts 264.73 and 265.73. This is consistent with other EPA programs including the Toxics Substance Control Act and the Toxic Chemical Release Reporting community Right to Know programs. This reduces burden without impacting the protection to human health and the environment.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0323 COPC approves of EPA's proposal to reduce record retention for routine operating records to three years, including certain records related to incinerators. COPC agrees that only the latest closure and post closure cost estimates need to be kept by the facility.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0327 API supports EPA's proposal to reduce the time frames for record retention requirements for routine operating records to three years, including reducing the time frames for retention of certain  242 records related to incinerators, to three years. We also support changing the requirements that only the latest closure and post closure cost estimates should be kept by the facility.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0334 Based on our many years of collective experience in the hazardous waste industry, we agree with EPA that three years is a reasonable time frame for keeping RCRA related records. Specifically, for closure and post closure cost estimates, we support the proposal of requiring only the current estimates to be kept at the facility. OESI, which includes incinerator facilities as active members, also supports reducing the length of time that incinerator operating data must be maintained  from the life of the facility to three years.

Response: The Agency appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. More routine information, such as whether certain notices were filed and records of inspections, can be discarded after three years. In the RCRA regulations, we have generally settled on three years as a reasonable time frame for keeping records. This is consistent with other Agency programs, such as the Toxic Substances Control Act and the Toxic Chemical Release Reporting Community Right to Know programs, that impose a three year record retention time in their regulations In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done. In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that will be subject to the upcoming MACT standards.

Document #: 0335 Reduce the length of time that routine information must be maintained on site to three years.

Response: The Agency acknowledges and appreciates this comment.  243 Document #: 0337 In any modifications of 40 CFR 264.73 and 265.73, please correct the typographical error in 264.70 that references " 264.70( b)" instead of " 264.70( b)( 9)." See 50 FR 28734, July 15, 1985. Otherwise, any change to the operating record requirements would arguably not be applicable to facilities that only receive waste generated off site.

FDEP agrees that requirements for air monitoring data retention should be consistent with those under the Clean Air Act regulations, with provisions for longer retention in enforcement cases.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0337 SOCMA supports EPA's proposal to reduce retention times for certain routine records that are not necessary for facility closure. SOCMA agrees that three years is a reasonable time frame for keeping routine records. Many SOCMA members are small businesses with significant space constraints in their facilities. Allowing these facilities to discard irrelevant records after three years will have a positive impact on their ability to manage and retrieve data that is needed..

Response: The Agency acknowledges and appreciates this comment.

Document #: 0338 On behalf of USWAG members that may have RCRA TSDF permits or interim status, USWAG supported EPA's 2002 proposed change to 40 CFR 264.73( b) & 265.73( b) to reduce the retention period for certain records at permitted and interim status facilities from life of the facility to three years. 67 Fed. Reg. At 2524 and USWAG Comments dated April 17, 2002 at pp. 7 8. We also support the Agency's recent proposal to modify to these regulations to: ( 1) confirm that a TSDF or interim status facility need only maintain the latest estimates of closure and post closure costs ( without respect to any time period) pursuant to 40 CFR 264.73( b)( 8), 264.142( d), 264.144( d) & 265.73( b)( 8); and ( 2) extend the three year record retention requirements. 68 Fed. Red. At 61667. USWAG agrees with EPA that these changes effectively address inconsistencies in the regulations and streamline records retention requirements without any negative impact to environmental protection.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0347 In its April 16, 2002 comments package to EPA on burden reduction, Eastman requested that the retention period for incinerator data from the continuous monitoring of combustion temperature, waste feed rate, the indicator of combustion gas velocity specified in the facility's permit, CO, THC, pH and numerous other operating parameters be reduced to five years, as opposed to the current life of the facility requirement. Five years' retention is the requirement under the Clean Air Act's MACT standards for incinerators. EPA has responded to those comments by requesting comment on a three year retention period. This would be a huge burden reduction, in terms of the  244 volume of information that would no longer need to be maintained year after year with no end in sight, and in mitigating the compliance issue of always having that data retrievable, when over time it is migrated from one information management system ( legacy system) to another without corrupting or losing any data. Another factor is the near impossibility of retaining IT staff to manage legacy systems, if migration to newer system is infeasible. Eastman commends the Agency on recognizing the difficulties in maintaining voluminous computer generated data for the life of the facility, and strongly supports the change to either three or five year retention for operating record requirements for incinerators.

Eastman also supports the suggested change that only current closure and post closure cost estimates be kept at the facility. This will allow for consistency in the regulatory code.

Response: The Agency appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done. In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that will be subject to the upcoming MACT standards.

264.73( a) Operating record: The owner operator must keep a written operating record at his facility.

The requirement for a " written operating record" at 40 CFR 264.73( a) should be replaced by a " written or electronic operating record." This change would be consistent with EPA's objective in this proposal and elsewhere of encouraging electronic recordkeeping and should not await the ( possibly lengthy) development of a separate rule on cross media reporting and record keeping ( page 2530).  245 Response: This suggestion is outside the scope of today's rulemaking.

264.73( b) Operating record: Proposed Action: Maintain operating record for facility. Modify amount of time most of the information in operating records have to be kept  three years instead of for the life of the facility. We are proposing this to standardize our record retention requirements.

Document #: If the requirement for submitting notifications currently found in 40 CFR 264.98( g)( 5)( ii), 40 CFR 264.98( g)( 6)( i)( ii), and other rules in this proposal concerning contamination of ground water are removed and replaced by the requirement to place that information in the facility operating record, we believe a three year limit imposed on the retention of these records in the operating record for the life of the facility. When closure is to be performed on a unit, it will be necessary to review ground water records for the life of the facility.

Response: This regulatory requirement will remain in the CFR. We are not pursuing any changes to this requirement.

Document #: 0144 Issue: The operating record retention times are changed from " until closure of the facility" to a 3 year timeframe. Although this may be acceptable for some types of records, we believe that it is not satisfactory of other records and will inhibit the ability of inspectors to determine compliance with some requirements.

264.73( b) and 265.73( b)  Although we agree that some records could be changed to a 3 year retention period, we DO NOT agree with all of the changes proposed. In particular, the records and results of waste analyses and waste determinations are proposed to be maintained for 3 years after entry into the operating record. We recommend that this be changed to maintaining them for 3 years after the wastes are no longer generated, stored, treated, or disposed at the facility. In addition, we do not agree with reducing the record maintenance from " until closure of the facility" to 3 years for the following paragraphs ( b)( 4) regarding reports of implementation of the contingency plan and ( b)( 11) thru ( b)( 16) regarding notices and certifications for on site and offsite treatment, disposal, and storage facilities. These records will be most helpful to regulatory agencies years from now should the facility close/ dissolve/ go into bankruptcy versus having records that only go back 3 years.

Response: The Agency appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received  246 and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done. In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that will be subject to the upcoming MACT standards.

Document #: 0157 While most USWAG members operate 90 day accumulation units, some members may have RCRA TSDF permits or interim status. To that end, we specifically support EPA's proposal to change under 40 CFR 264.73( b) & 265.73( b) the timeframe for record retention in certain recordkeeping requirements for permitted and interim status facilities from life of the facility to three years. Id at 2524. We agree that "[ t] his will standardize the RCRA record retention time requirements, eliminating confusion about how long records have to be kept." Id.

Response: The Agency appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. In response to comments received, we are also amending 265.73( b)( 6) and creating a new 265.73( b)( 15) to require retention in the operating record until closure of the facility the water quality assessment plans required under 265.90 and 265.93( d)( 2), and water quality assessment reports required under 265.93( d)( 5). Although these changes were not proposed, We believe they make sense as a natural outgrowth of today's changes and would result in no more burden to facility owners or operators for storage, since it is likely that nay report issued to the Agency would also be kept on site by the facility. In other words, there would be no increased in burden over what is already being done. In addition, we have also decided, for reasons of consistency with the Clean Air Act requirements, to finalize a five year record retention time for incinerators and BIFs. We are also promulgating the five year record retention time to BIFs ( such as sulfur recovery furnace) that  247 will be subject to the upcoming MACT standards.

Document #: 0169 Maintain operating record for facility Modify amount of time most of the information in operating records have to be kept three years instead of for the life of the facility. We are proposing this to standardize our record retention requirements.

Although we generally support a reduction in the retention times for some records, the records retained in the operating record include all design requirements and assessments and records of implementing the Contingency Plan that need to be maintained much longer. If other changes proposed in this Proposed change are made that allow facilities not to submit notification of contamination, notification of exceeded concentration limits, submittal of certification ti remediation from a tank release, etc.) and to maintain the information in the operating record, this reduces the time frame for all notices and reports to three years. This is simply not adequate for several submittals, which are currently required.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0196 Record retention for operating records and BIF records [ 264.73( b) & 265.73( b) & 266.102( e) ( 10)]  Velsicol supports this change. We don't see much benefit from keeping these records beyond three years. The change to three years would be more consistent with other RCRA record retention requirements, thus reduce confusion and simplify the management system we use to comply with this requirement.

Response: The Agency appreciates this comment. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction Document #: 0202 Comment: The proposed reduction from permanent record keeping to three year retention does not account for cleanup liability responsibility determination.

Discussion: Several favorable DoD cleanup liability determinations have been made based on operating records documenting lesser DoD contributions and identifying more potentially responsible parties ( PRPs). These include the Casmalia and Environmental Pacific sites in California, Fuels and Chemicals in Alabama, and the PCB, Inc., sites in Missouri. It is impossible to determine actual DoD savings based on operating records found on site that exceed three years  248 in age, however, we estimate minimum savings in millions and potentially tens of millions of dollars. Although electronic issues have been removed from this proposed rule, electronic record keeping significantly reduces the storage cost for maintaining operating records indefinitely.

Recommendation: Do not modify record retention requirements in 264.73( b) or 265.73( b). Continue to require TSDFs to maintain records until facility closure or longer at the request of the Administrator per 40 CFR 264/ 265.74( b).

Response: The Agency acknowledges, but disagrees with the commenter. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. . Document #: 0212 EPA should only allow a three year retention period if there are no outstanding enforcement, noncompliance or legal issues pending. EPA should be required to revoke this allowance if any government official issues the facility or its parent corporation a Notice of Noncompliance.

Response: The Agency acknowledges, but disagrees with the commenter. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. . Document #: 0213 With few exceptions, we believe that these records need to be kept until closure. In general, any information the facility would need to identify the source and identity of contamination at the site needs to be kept until closure. As the proposed rule states, monitoring and cleaning up groundwater is a multi year or even multi decade effort. In order to monitoring changes in groundwater monitoring parameters over time, facilities need to keep records on soil and groundwater investigations and monitoring results for the life of the facility.) Our experience at Hanford indicates that waste analysis information is valuable as long as the waste remains on site potentially subject to subsequent management needs. Training records for employees that have left the facility's employment may not need to be kept for the life of the facility.  249 Response: The Agency acknowledges, but disagrees with the commenter. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. . Document #: 0216 ( 264/ 265.73( b)) The State of Maine is opposed to the proposal to standardize the operating record for all facilities such that the length of time information must be retained is for three years instead of the life of the facility. In particular, for disposal and treatment facilities ( i. e. landfills, incinerators, land treatment facilities, surface impoundments) it is still important to retain records for the life of the facility to identify past disposal records and locations.

Response: The Agency acknowledges, but disagrees with the commenter. In today's rule we are amending the record retention requirements of 264/ 5.73 to three years for most of the information. However, we feel that certain information must be maintained until the closure of the facility. In today's rule we are maintaining that the retention of the following information is necessary to ensure protection of human health and the environment through the life of the facility, and until closure of the facility. This information includes: ( 1) description and quantity of each hazardous waste received and what was done with it; ( 2) location of each hazardous waste; ( 3) closure estimates; or ( 4) quantities of waste place in land disposal units under an extension to the effective date of any land disposal restriction. . Document #: 0218 Modify record retention time requirements.

Response: The Agency acknowledges and appreciates this comment.

Document #: 0222/ 0224 ( ACC) Clarify exceptions to retention of operating record under 264.73( b)( 6). ACC supports the proposed changes to the operating record at 264.73 and 265.73, but believes additional changes and clarifications are needed.