On November 28, 2016, EPA published the final version of the Hazardous Waste Generator Improvements Rule (the Rule) in the Federal Register. Promulgated under the Resource Conservation and Recovery Act (RCRA), the Rule updates EPA’s regulations governing generators of hazardous waste, most of which EPA promulgated in the 1980s. The Rule significantly revises the hazardous waste generator requirements.
EPA claims the Rule simplifies regulations governing hazardous waste generators and allows generators greater flexibility in managing their hazardous waste. The Rule contains over 60 changes to EPA’s current regulatory scheme. Some of these changes relax the current regulatory scheme and others increase generators’ responsibilities. The Rule addresses generator classifications (Conditionally Exempt Small Quantity Generators are now called Very Small Quantity Generators), hazardous waste determinations, marking and labeling, recordkeeping, satellite accumulation, and numerous other aspects of hazardous waste generation.
Notable changes include the following:
- Small Quantity Generators (SQGs) and Large Quantity Generators (LQGs) must mark containers with RCRA waste codes prior to sending them off site.
- A company may consolidate hazardous wastes from its Very Small Quantity Generators (VSQGs) at its LQG(s), as long as the waste remains under the control of the same person (defined as including business organizations and other entities). Destination LQGs must comply with certain recordkeeping and notification requirements. Previously, such transactions required a RCRA permit.
- A generator may temporarily exceed the quantity limit under its generator classification without automatically falling subject to the regulations for the next level of generator. These exceedances are called “episodic generation.” Under the Rule, generators are permitted one “episodic generation” event per calendar year and may petition to be allowed a second event. If the first event is planned (a tank cleanout, for example), the second event must be unplanned, and vice versa. Certain notification requirements and duration limits apply.
- EPA will treat generators that fail to meet “conditions for exemption” from treatment, storage and disposal facility (TSDF) regulations as operators of TSDFs, subjecting such generators to the TSDF RCRA requirements. The Rule makes clear that EPA will not treat breaches of such “conditions for exemption” the same way it treats non-compliance with “independent requirements,” which all generators must meet. Non-compliance with “independent requirements” may result in a notice of violation and an enforcement action for that requirement only. Failure to comply with “conditions for exemption,” alternatively, could require the facility to fully comply with the more stringent TSDF requirements.
- Container and tank labels must indicate the hazards of the contents of the containers and tanks.
- LQGs may apply for waivers from the requirement that containers holding ignitable or reactive waste be located at least 50 feet from a facility’s property line.
The Rule is scheduled to go into effect in Iowa and Alaska on May 30, 2017, six months after publication in the Federal Register. In the 48 other states with authorized RCRA programs, the Rule (or portions thereof) will not go into effect until after the adoption and authorization process. State RCRA programs must be at least as stringent as the federal program, so states must adopt all provisions of the Rule increasing the strictness of the federal program. States will have until July 1, 2018, to adopt such provisions (or July 1, 2019, if a change in state law is needed). States may choose whether to adopt provisions that are deemed equally or less stringent than the current federal program, and there is no deadline for such adoptions.
While the new Rule is supposed to go into effect as early as May 30, 2017, the effective date of the new Rule can be postponed by the new administration if a “claw back memo” is issued which could postpone the Rule’s effective date by 60 days. Both the Bush Jr. and Obama administrations used this approach to postpone the effective date of certain regulations. And, of course, the new administration can also decide not to enforce certain provisions of the Rule.
EPA has provided in-depth webinars discussing the Rule, one of which is archived here.
This post was drafted by Paul Jacobson and Baerbel Schiller, attorneys in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.