Comment submitted by J. Burman

August 21, 2006 RE: Attention Docket ID No. EPA-HQ-RCRA-2003-0012 Dear EPA RCRA Staff: I am currently a state regulator in a delegated state Resource Conservation and Recovery Act (RCRA) program. I respectfully submit, as a concerned citizen, to the U.S. Environmental Protection Agency (EPA), the following comments regarding the proposed regulations titled ?Standards Applicable to Generators of Hazardous Waste; Subpart K - Standards Applicable to Academic Laboratories? and designated EPA Docket Identification Number: EPA-HQ-RCRA-2003-0012. 1) I am very concerned regarding this Proposed Rule?s apparent provision of ?cafe regulation? for one specific regulated community. I know that most state RCRA programs annually receive numerous requests from various industries for tailored regulation or regulatory interpretations. Most generators understand the response that such is not possible because the same regulatory framework applies to all generators of hazardous wastes, as the potential environmental harm that could be caused by those wastes does not depend on who generated them. I feel that this Proposed Rule opens a ?slippery slope? potential for other industries who face complex application of the RCRA regulations, such as healthcare, law enforcement, and non-teaching industrial laboratories, to seek and have justification for similarly tailored regulatory sets, eroding both the relative simplicity and consistency of the RCRA regulations. 2) Under Part IV., A. of the Preamble to the Proposed Rule, [71 FR 29723] I do not understand the stated exclusion of secondary education institutions (high schools) from the alternative requirements. IF the basis for the Proposed Rule, that academic laboratories are hobbled in complying with the standard hazardous waste regulations due to the large number of transient and untrained students actually generating the waste, is accepted, then this exclusion seems contradictory to the stated aims of the Proposed Rule, which are supposedly to enhance proper hazardous waste management in academic laboratories by allowing a limited number of trained staff acting centrally to perform evaluations and subsequent management. High school students, if anything, will be far less able, through lesser experience and instruction, to be able to correctly manage hazardous wastes generated in their academic laboratories than college/university students, yet these laboratories also, exactly like their university counterparts, generate a varied stream of wastes from student experiments, many of them potentially hazardous. My experience with high school laboratories is that they are less likely to be compliant with the standard hazardous waste regulations than university laboratories. I would ask that, IF the Proposed Rule is adopted, that academic laboratories at secondary educational institutions accredited by their applicable state Department of Education be included as eligible generators alongside university laboratories. 3) Under Part IV., A. of the Preamble [71 FR 29724 and 29726], the EPA requests comment on the potential expansion of the scope of this alternative set of regulations to other laboratories outside of colleges and universities. This request seems to substantially undercut the previously clearly stated intention that the EPA does not intend for other types of laboratories, specifically those at hospitals affiliated with a college or university, to be eligible for inclusion in the proposed alternate regulations [71 FR 29723]. I recommend, that if the Proposed Rule is adopted substantially as presented, that the definition of eligible laboratories include ONLY university and, as recommended in Comment 3) above, high school laboratories. One of the primary stated justifications for allowing alternate management of potentially hazardous wastes is the limited experience and prior training in the applicable regulatory requirements of the students actually generating potentially hazardous wastes in academic laboratories, as well as the practically limited control the parent academic institution is able to extend over the students? actions. This primary justification is simply not present in the case of government and industrial laboratories. The standard hazardous waste regulations require generators to adequately train their employees and hold the employers responsible for the actions of those employees. Though many generators commonly assert that their noncompliance with the hazardous waste regulations is attributable to individual employees? actions, I view such noncompliance as the generators? failure to adequately train and supervise its employees, for which the generator is responsible under the standard common- law doctrine of respondeat superior. I strongly discourage any weakening of this doctrine through expansion of the scope of the Proposed Rule to government or industrial laboratories, with the tacit implication that generators are not responsible to fully train their employees if that task is perceived as too complex or time-consuming. 4) Under Part IV., C., 2. of the Preamble [71 FR 29729] the EPA offers and specifically requests comment on the alternative concept of a ?working container?, and would allow the ?working container? to be unclosed if of a small size and emptied at the end of a laboratory procedure. I feel that this alternative would not be protective of human health and the environment and may in practical use be little more than an initial satellite accumulation container that is unclosed and subject to inadvertent release of the contents. I would interpret that most experimental products or byproducts generated during a procedure would be considered part of the procedure until the laboratory worker actually makes the determination or decision that they are unwanted for further use in the procedure, at which point they would be removed from the procedure. As such, they are at that point ?unwanted materials? under the Proposed Rule (under standard RCRA regulation they would be solid wastes subject to evaluation), and the allowance of an extra container step is moot. The Proposed Rule already includes container management standards for ?unwanted materials?, which I feel, if adopted, provide for substantial generator flexibility in material and container management. I would recommend inclusion of the second alternative option presented, for specific container standards applicable to ?unwanted materials? containers. 5) Under Part IV., C., 5. of the Preamble [71 FR 29733] the EPA discusses the rationale for a ten calendar day allowance period for removal of unwanted materials from a laboratory after the specified accumulation limit has been reached. The rationale focuses on academic institutions? contention that the three day limit for removal under the standard regulation satellite accumulation requirement is insufficient for trained staff to respond to requests over extended campuses. I do not think such an extended time would be protective of human health or the environment, as it would allow and even reward generators for failing to maintain some awareness of the amount of ?unwanted materials? accumulating at various laboratories on a campus. The exceedances of the accumulation limit should never be a surprise to a generator of this type! While a generator will not realistically be able to predict the exact date that an accumulation limit will be reached in a specific laboratory, I believe that there is no excuse for the instructors or for the generator?s trained staff servicing that laboratory failing to maintain a general awareness of the amount of ?unwanted material? accumulating, thus allowing the trained staff to prepare for exceedances when they do occur. The contentions raised in the Preamble by academic institutions? are no different, nor bear any greater weight, than the identical contentions raised to me during inspections by industrial generators operating extended manufacturing and processing plants, some of which are much larger in area than most academic campuses. I recommend retention of a three-day allowance for removal of ?unwanted materials? from the date the accumulation limit is reach or exceeded. 6) Under Part IV., C. 11. of the Preamble [71 FR 29739] the EPA proposes two alternate options for enforceability of LMPs. In the first, a generator would be required to develop an LMP, but would not be required to comply with its own LMP if it otherwise met the performance-based standards of the Proposed Rule. In the second, generators would not only be required to develop and comply with an LMP, but would also be required to update the LMP as necessary. I very strongly reject the first proposal and support the second; to require compliance with an LMP. A requirement to develop a plan that is not required to be followed is totally meaningless. It would seem that the entire point of an LMP is to require the generator to examine its particular situation with care, including all factors reasonably relevant to ?unwanted material? generation in its laboratories, develop a plan, and then train its staff to implement the plan. If the LMP cannot be reasonably followed by the staff, the only real conclusion is that the LMP is flawed and in need of updating. Failure to require compliance with an LMP removes the practical decision-making ability of the academic institution to decide how to most appropriately manage its ?unwanted materials? and subsequent waste, and places that authority independently in each laboratory worker or academic employee. From a regulatory viewpoint, both generators and regulators would then be subject to endless, subjective determinations of whether each container, label, or action was adequate to meet the performance-based standards and thus protective of human health and the environment. Requiring compliance with an LMP would allow an inspector, either on a periodic basis or at the time of inspection, to independently review the LMP to determine its potential to meet the performance- based standards and thus be protective of human health and the environment, IF fully complied with, and to then completely objectively inspect the actual management methods as performed by the generator. This separation of potential from action will allow both generators and regulatory agencies, and thus, the public, to gain a clear picture of the environmental safety of a particular laboratory through the inspection process, and to point clearly towards either LMP or implementation changes that a generator should perform to be most protective of human health and the environment. 7) Finally, but most important, I am sorely disappointed regarding the lost potential for future protection of human health and the environment that this Proposed Rule presents. My experience is that many recent graduates of post- secondary institutions in a multitude of chemical, industrial, and medical fields, to name only a few, are either totally or nearly totally ignorant of hazardous waste regulations applicable to their chosen and recently-trained-for professions. This lack of awareness then contributes directly to the failure of many inspected generators to appropriately evaluate and manage their hazardous wastes, leading to both dangerous and avoidable releases of hazardous waste constituents to the environment. I am also a licensed teacher, and feel that, if anywhere, university laboratories should be places where students are at least exposed to the basic concepts of standard hazardous waste regulation. Students choose, or are required, to participate in laboratory activities because the university, and driving that, the career field as a whole, have decided that awareness of chemical reactions of varied sorts is important for a future practitioner in that field. Concurrent and integral with this instruction should be at least understanding of the basic regulation surrounding their use and disposal. Under the alternative regulations contained in this Proposed Rule, university laboratories are in fact discouraged from providing this understanding, by encouraging them to allow their students to use the alternate regulations - regulations which will NOT be available to the students on graduation when they are required to utilize their newly learned skills in the real world! Universities should be places of teaching and learning for students, not places to allow the easiest and most uninformed path to production of those students. Sincerely, Joshua Burman