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