New Requirements to Impact Hazardous Waste Generators in 2017

January 22, 2017
Rodd W. Bender
MGKF Special Alert - Forecast 2017

The rules of the road applicable to facilities generating hazardous waste will change significantly in 2017 due to promulgation by the U.S. Environmental Protection Agency (“EPA”) of the final Hazardous Waste Generator Improvements Rule, which was published in the Federal Register on November 28, 2016 (81 Fed. Reg. 85372).  The rule represents the first major overhaul of the generator regulatory program, which has evolved piecemeal since the 1980s.  EPA has reorganized the regulations to make them easier to navigate.  Substantively, the final rule contains several important changes.  Generator facilities will likely embrace some of these, such as new flexibility for “very small quantity generators” (formerly known as conditionally exempt small quantity generators) to consolidate their hazardous waste at an affiliated large quantity generator facility rather than having to send it directly for disposal.  The rule will also allow VSQGs and small quantity generators to maintain their existing generator category subject to certain conditions despite an unusual “episodic” event that would otherwise bump the facility to a higher category.

EPA has also strengthened many of the obligations imposed on hazardous waste generators, which may require increased efforts to ensure compliance.  These changes impact areas such as making hazardous waste determinations, managing waste in satellite and central accumulation areas, labeling containers and tanks, and developing emergency planning and preparedness procedures.  Further, in the enforcement context, the rule distinguishes between violations of “independent requirements” applicable to facilities simply by virtue of being generators, and failures to satisfy “conditions for exemption” that allow a facility to avoid obtaining a hazardous waste permit.  Facilities found to have neglected exemption conditions – many of which (like labeling a drum) appear relatively minor on their face – could experience significant consequences if deemed to be operating without a permit.

The rule becomes effective on May 30, 2017.  States authorized to implement the hazardous waste program will be required to adopt changes in the rule that are more stringent than the current federal program, and will have the option of adopting less stringent changes.  Facilities should take time over the next few months to become familiar with the rule and be prepared to make any necessary adjustments before regulatory agencies begin enforcing the new requirements.