RCRA Update: New Hazardous Waste Generator Rule Goes Into Effect in May 2017

by Greenberg Glusker Fields Claman & Machtinger LLP
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EPA’s final Hazardous Waste Generator Improvements Rule (“Rule”), which goes into effect on May 30, 2017, contains approximately 60 revisions to the hazardous waste generator regulatory program. The revisions focus on improving efficiency, and compliance for hazardous waste generators—which is quite appropriate given EPA’s estimated hazardous waste non-compliance rate of 20 to 30 percent. See Final Rule Preamble at IX.B(1). The Rule also results in a significant reorganization of the hazardous waste generator regulations, which have historically been confusing in their layout and configuration.

Although the Rule is scheduled to go “into effect” on May 30, 2017, that date will prove inconsequential for most jurisdictions. The May 30, 2017 effective date only applies to states and territories without an authorized RCRA program:  Alaska, Iowa, Indian Nations, Puerto Rico, American Samoa, Northern Mariana Islands, and the U.S. Virgin Islands.  Moreover, under RCRA, authorized states are required to adopt only provisions of the Rule that are “more stringent” than their authorized state programs and are not required to adopt provisions of the Rule that are “less stringent” than their authorized state programs.  Therefore, some states may not adopt all of the Rule’s provisions.

By way of background, hazardous waste generators are regulated according to the amount of various types of waste they generate in a calendar month, with larger generators being regulated more strictly–

  • VSQG: A very small quantity generator (“VSQG”), which is a newly defined term in the Rule that replaces the term “Conditionally Exempt Small Quantity Generator,” is a generator that generates less than or equal to the following amounts of the following substances in a calendar month: (1) 100 kilograms (220 lbs) of non-acute hazardous waste; and (2) 1 kilogram (2.2 lbs) of acute hazardous waste; and (3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste.
  • SQG: A small quantity generator is a generator who generates the following amounts of the following substances in a calendar month: (1) greater than 100 kilograms (220 lbs) but less than 1,000 kilograms (2,200pounds) of non-acute hazardous waste; and (2) less than or equal to 1 kilogram (2.2 lbs) of acute hazardous wastes; and (3) less than or equal to 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste.
  • LQG: a generator who generates any of the following amounts in a calendar month: (1) Greater than or equal to 1,000 kilograms (2,200 lbs) of non-acute hazardous waste; or (2) greater than 1 kilogram (2.2 lbs) of acute hazardous waste; or (3) greater than 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste.

The Rule affects all three generator categories.

Some of the “more stringent” provisions of the Rule, which states will be required to adopt, include the following:

  • Labeling Requirements: Requiring SQGs, LQGs, and transfer facilities to better define the risks of hazardous wastes accumulated in tanks, containers, drip pads, and containment buildings at “Central Accumulation Areas” (a newly defined term in the Rule that refers to the areas subject to accumulation time limits set forth in sections 262.16 and 262.17), as well as Satellite Accumulation Areas. This will require such generators to mark containers with the words “Hazardous Waste” and an indication of the hazards of the contents of the container, including, but not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic), hazard communication consistent with certain DOT requirements, a hazard statement or pictogram consistent with the OSHA Hazard Communication Standard, or a chemical label consistent with NFPA code 704. See, e.g., Final Rule Preamble at IX.E; 40 CFR §§ 262.14(a)(5); 262.15(a)(5); 262.16(b)(6); 262.17(a)(5); 263.12(b).
  • LQG Closure Notification Requirements: Requiring LQGs to notify EPA or their authorized state when they plan to close a facility. Under this provision, LQGs need to notify EPA 30 days prior to closure and 90 days after closure. Moreover, when closing a hazardous waste unit (such as a tank), EPA provides a choice: (1) put a notice in the operating record indicating closure; or (2) follow the formal clean closure procedures. See Final Rule Preamble at IX.I; 40 CFR § 262.17(a)(8).
  • Periodic Notification Requirements for SQGs: Requiring SQGs to re-notify EPA to update site info. Presently, SQGs only have to provide a one-time notification to EPA to obtain an EPA ID No. (to treat, store, dispose of, or transport hazardous waste), whereas LQGs are required to re-notify more often in connection with biennial reporting. Under the Rule revisions, SQGs must re-notify every four years. See Final Rule Preamble at IX.L; 40 C.F.R. § 262.18(d).
  • Submittal of a Biennial Report for HW Recycling Facilities: Requiring facilities that recycle hazardous waste without storing the waste to prepare and submit a Biennial Report. This applies to owners or operators that recycle hazardous waste without storing the wastes, or facilities that partially reclaim hazardous waste prior to producing a commodity-like material. See Final Rule Preamble at VIII; 40 C.F.R. § 261.6(c)(2).
  • LQG Preparation of a Quick Reference Guide: Requiring LQGs updating their contingency plans to prepare a quick reference guide for their contingency plans to assist responders in an emergency. Quick reference guide elements include hazardous waste types and hazards; quantities of hazardous waste present at any time; a facility map; the name of emergency coordinator; and related info. See Final Rule Preamble at XI; 40 C.F.R. § 262.262.

Some of the “less stringent” provisions of the Rule, which states may elect to but are not required to adopt, include the following:

  • VSQG Consolidation Provision: Allowing VSQGs to voluntarily send hazardous waste to LQGs under the control of the same “person.” See Final Rule Preamble at IX.K; 40 C.F.R. § 262.14(a)(5)(viii).
  • “Episodic Event” Allowance: Allowing VSQGs and SQGs to maintain their existing regulatory status if they have an episodic event that generates additional amounts of hazardous waste which would have resulted in them moving into a higher generator category for a short period of time, so long as they comply with specified conditions. See Final Rule Preamble at X; 40 C.F.R. §§ 262.230-233.
  • Waiver From 50-Foot Boundary Requirement: Allowing LQGs to apply for a waiver from their local fire departments (or authority having jurisdiction over the local fire code) to accumulate ignitable and reactive wastes within the 50-foot facility boundary. See Final Rule Preamble at IX.H; 40 C.F.R. § 262.17(a)(vi).

It is possible that the Rule may be overturned in part, based on a controversial provision in the Rule relating to “conditions of exemption”—generator requirements necessary to obtain an exemption from being categorized as a storage facility and therefore subjected to heightened regulatory requirements. Industry groups have challenged the Rule in the Court of Appeals for the DC Circuit (USCA Case #17-1064) stating that the “issue to be raised is whether the [Rule] is unlawful, arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law insofar as it provides that a generator’s noncompliance with even a single requirement identified as a ‘condition for exemption’ . . . means that the generator is operating unlawfully as a storage facility without a . . . [RCRA] permit, and would be subject to penalties and injunctive relief . . . for violations of any or all of the several dozens of RCRA permit and interim status design, operation, and administrative rules that apply to storage facilities.” The matter is not yet scheduled for oral argument, but we will be monitoring the case and providing updates on this blog.  Stay tuned.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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