EPA Finalizes Major Update to Hazardous Waste Generator Requirements

December 12, 2016
Rodd W. Bender and Brett Slensky
MGKF Special Alert

On November 28, 2016, the U.S. Environmental Protection Agency (“EPA”) published its final “Hazardous Waste Generator Improvements Rule” in the Federal Register (81 Fed. Reg. 85732).  The rule dramatically overhauls the Resource Conservation and Recovery Act (“RCRA”) requirements imposed upon generators of hazardous waste.  It includes over 60 revisions and new provisions to the generator program, a significant reorganization of the regulations, and new terminology.  While some of the changes provide welcome enhancements to the existing framework, others add new obligations that generators may find burdensome and costly to implement.

The final rule will be effective on May 30, 2017.  On that date, the rule goes into effect in states and territories that are not authorized to implement the RCRA program.  Authorized states must adopt those aspects of the rule that are more stringent than the current RCRA generator regulations. Those provisions will become effective in an authorized state after the state has adopted the provisions and become authorized to implement the new rule.  Authorized states also have the option of adopting aspects of the rule that are less stringent (or no more or less stringent) than the current RCRA program. 

MGKF previously published a detailed summary of the proposed version of the Hazardous Waste Generator Improvements Rule.  The following discussion briefly describes how EPA finalized key provisions of the rule, including significant changes made to the proposal in response to input from the regulated community, state agencies, environmental groups and other stakeholders. 

Determining Generator Categories
The final rule includes the generator category definitions and related changes, as proposed, for each of the three generator categories – “very small quantity generators” (“VSQGs,” which replaces the conditionally exempt small quantity generator terminology), small quantity generators (“SQGs”) and large quantity generators (“LQGs”).  The definitions incorporate the monthly generation thresholds applicable to each generator category based on the three relevant types of hazardous waste, i.e., acute hazardous waste, non-acute hazardous waste, and residues from cleanup of acute hazardous waste spills.  In conjunction with these changes, EPA adopted Section 262.13, substantially as proposed, which contains a detailed procedure and reference table for determining the appropriate generator category for facilities that generate one or a combination of the three waste types.  Section 262.13 also addresses whether certain wastes and other materials should be included in the monthly tally and how mixed wastes should be counted.    

Clarifying and Emphasizing Hazardous Waste Determinations
The final rule includes a majority of EPA’s proposed changes clarifying and emphasizing the fundamental requirement that generators must determine whether each of their waste streams constitutes hazardous waste.  The final rule retains the proposed requirements that the determination must be made at the point of generation before any dilution, mixing or other alteration of the waste occurs and, for potentially characteristic wastes, at any time in the course of the waste’s management if its properties may change.  (EPA held fast to this latter requirement, which it described as long-standing, despite considerable concern from industry commenters that it would require constant re-evaluation of certain wastes.)  EPA also clarified in the final rule that the types of “acceptable knowledge” listed in the proposal for purposes of making hazardous waste determinations is not an exclusive list.  SQGs and LQGs will also be required to maintain records of any test results, waste analyses, or other hazardous waste determinations for three years, as opposed to the life of the facility as specified in the proposal.  Finally, EPA did not adopt the controversial aspect of the proposed rule that would have required generators to also maintain documentation where a solid waste was found not to be a RCRA hazardous waste.  That said, in the preamble to the final rule, EPA “strongly recommends” that generators document their non-hazardous waste determinations as a best management practice, particularly where the waste may display hazardous attributes; EPA also noted that inspectors retain the authority to ask that a hazardous waste determination be performed in the absence of documentation.

Consolidating CESQG Waste at LQGs
EPA adopted these provisions, substantially as proposed, allowing VSQG facilities to consolidate their waste at an LQG facility under control of the same person (such as an affiliate owned by the same parent company), provided the VSQGs comply with certain container marking and labeling requirements and the receiving LQG provides notification to the state environmental agency and satisfies specified container labeling, recordkeeping and reporting obligations.  In the preamble to the final rule, EPA underscored the state adoption issue discussed above, expressly noting that states may choose to not adopt the finalized consolidation provision.  As such, with respect to interstate shipments where a VSQG wants to transfer its waste to a LQG under the control the control of the same person but located in a different state, the VSQG will need to ensure that both states have adopted the final consolidation provision and should also consider contacting any intermediate state through which the waste will be transported regarding their policy on such shipments. 

Providing for Episodic Generation
EPA adopted the new “episodic generator” provision substantially as proposed.  This will allow a VSQG or SQG to maintain its normal generator category despite one episodic event per calendar year that would otherwise bump the generator into a larger generator category (with the ability to petition the agency to allow a second event in the same year) if the generator meets certain conditions.  These include, among others: (i) notifying EPA or the state at least 30 days prior to a planned episodic event or within 72 hours of an unplanned event (the latter providing more time than 24 hours as stated in the proposal); (ii) obtaining a RCRA ID number (for VSQGs); (iii) complying with specified management conditions while the waste is accumulated on-site; (iv) shipping the waste under manifest and by a hazardous waste transporter to a RCRA-designated TSDF or recycling facility within 60 days of the start of the event (versus 45 days in the proposal); and (v) maintaining certain records regarding the duration and types and quantities of hazardous waste generated during the event.  In response to commenter’s concerns regarding potential abuse of this provision, the preamble to the final rule clarified that only waste identified in the notice to EPA may be managed as part of the episodic event and not counted towards the generator’s monthly category determination.  This revised interpretation of how the episodic generation provision will work in practice differs from the proposed rule, which suggested that waste generated from normal operations could be managed as part of the episodic event, regardless of whether it was identified in the notice, and not counted towards the facility’s monthly category determination.  In another step to minimize potential abuse, the final rule conditions the ability to petition for a second episodic event in a year by requiring that the facility utilize the relief for one planned and one unplanned event rather than two events of the same type.

Enforcing Violations of Independent Requirements and Conditions for Exemption
The aspect of the proposed rule posing the most significant enforcement implications involved expressly distinguishing between two types of generator obligations: “independent requirements” and “conditions for exemption.”  The former describes requirements triggered merely because a facility generates hazardous waste (such as obtaining a generator ID number), whereas the latter are conditions a facility must meet if it chooses to utilize an exemption from RCRA permitting (for instance, the conditions LQGs must satisfy to accumulate hazardous waste up to 90 days without a storage permit).  In the proposal, EPA explained that violating an independent requirement can lead to a penalty and/or injunctive relief for such noncompliance.  Conversely, EPA stated that failing to satisfy a condition for an exemption does not trigger enforcement for violating that condition, but instead can cause the facility to lose the benefit of the exemption. In that event, the facility could become subject to the full range of independent requirements – and to enforcement for having failed to comply with those requirements – that apply absent the exemption.  EPA asserted that it has always distinguished between these two types of requirements and their corresponding enforcement consequences, but sought to make this clear by codifying the concept into the regulations.

Many industry commenters voiced strong concern that these amendments would represent a major break from the existing enforcement framework, and lead to excessive violations and penalties for minor infractions – such as tagging an LQG for failure to have a storage permit when it left a drum open in a less-than-90-day accumulation area. Some states also commented that the new language would unduly limit their enforcement discretion.  Despite such comments, EPA finalized the revisions largely unchanged.  However, EPA did provide some potentially comforting language in the preamble to the final rule.  Among other statements, the agency noted that “regulatory agencies retain the same discretion and authority regarding bringing various types of enforcement actions that they have always exercised in situations where non-compliance with conditions for exemptions have been detected.”  EPA also wrote that these amendments do not mandate pursuing every regulatory violation that would result from losing an exemption if doing so “would be disproportionate to the seriousness of the generator’s violations.”  While the regulated community will likely remain cautious about this enforcement paradigm, this preamble language may prove helpful in avoiding extreme application of the rule.

Strengthening Renotification Requirements for SQGs and LQGs
The final rule adopted the proposed periodic re-notification requirements, subject to certain changes, so that LQGs and SQGs may update EPA on their generator status.  The final rule formalizes the LQG’s re-notification obligation every two years using form 8700-12, which is to be provided to EPA by March 1 of each even-numbered year as part of the LQG’s biennial report.  SQGs, beginning in 2021, will be required to re-notify EPA every four years using form 8700-12 by September 1 of each year in which re-notification is required.  EPA decreased the frequency of the SQG re-notification obligation to every four years (versus every two years, as proposed) to reduce the regulatory burden associated with this requirement. 

Satellite and Central Accumulation Area Provisions
EPA finalized, largely as proposed, several updates to the satellite accumulation area (“SAA”) rules.  These provisions allow generators to accumulate up to 55 gallons of non-acute hazardous waste or one quart of an acutely hazardous waste in an area at or near the point of generation that is under the control of the operator of the generating process; only once those quantity thresholds are exceeded must the waste be managed under other RCRA provisions (such as moved to a central accumulation area or disposed off-site).  Perhaps the most significant change from the proposed rule involves an interpretative discussion in the preamble relating to the meaning of “under the control of the operator.”  In the proposal, EPA described as examples of this requirement that the operator has controlled access to the area through an entry access card or key to a locked room, or accumulates the waste in a locked cabinet.  Several commenters believed that these examples were intended to make SAA requirements more stringent.  In the preamble to the final rule, however, EPA acknowledged a comment that most SAAs are not in locked rooms or cabinets, and clarified that agencies could consider other alternatives ensuring “that someone familiar with the operations generating the hazardous waste is aware of and able to attend to the operations...while...providing some measure of controlled access.”  This discussion should help assure generators that they need not necessarily upgrade their SAAs with locking capability or face enforcement for failing to do so.    

The proposal also included several revisions to the requirements for SQGs and LQGs managing hazardous waste under the aforementioned exemption allowing accumulation for up to 90 or 180 days in central accumulation areas (“CAAs”).  Regarding LQGs closing a CAA (including a container accumulation area, tank, containment building or drip pad), EPA modified the proposal to allow LQGs either to implement closure procedures for that unit when it ceases operating, or to put a notice in the operating record stating that the unit is closed and wait until the entire facility ceases operation to conduct the closure requirements. Also, rather than notify the authorized agency every time a waste accumulation unit is closed, under the final rule notification need only occur upon facility closure.  While the final rule retains the proposal’s requirement that container accumulation areas must be “clean closed” or meet the post-closure care requirements for landfills (as was already the case for tanks, trip pads, and containment buildings), the final rule does allow LQGs to request additional time to clean close.  In addition, in lieu of the proposed requirement for SQGs and LQGs to mark containers with the RCRA hazardous waste code prior to off-site transport, the final rule allows use of either the RCRA hazardous waste code or a nationally recognized electronic system such as the bar codes commonly employed by waste handing firms.   

Finally, the proposed rule included requirements to enhance the marking and labeling of containers in both SAAs and CAAs by adding, along with the standard “Hazardous Waste” label, words identifying the contents of the containers (e.g., “acetone” or the DOT shipping and technical names) and an indication of the associated hazards (such as the RCRA hazardous waste characteristic(s) or a DOT hazard class label).  In response to comments that requiring content labeling could be difficult to implement and enforce, EPA dropped this aspect in the final rule (but encourages content labeling as a best management practice). 

Updating Emergency Planning and Preparedness Procedures
The proposed rule contained a number of changes to strengthen the emergency planning and training requirements for SQGs and LQGs.  EPA has retained most of the proposed changes to these provisions, with a few modifications.  Among these, the final rule clarifies that preparedness and planning obligations apply to points of hazardous waste generation and to SAAs, as well as to CAAs.  EPA has also eliminated the proposed requirement that generators must make arrangements with local responders, and is instead requiring that generators attempt to make such arrangements and document the attempts or, if successful, the final arrangements.  The agency also decided not to identify specific categories of hazardous waste management for which LQGs would be required to provide personnel training and written job descriptions, but noted that generators must ensure that all employees involved with hazardous waste management are sufficiently trained to be familiar with proper handling and emergency procedures.

On the whole, the final rule will benefit generators in certain circumstances, including giving VSQGs flexibility to consolidate their waste at an LQG facility within the same company, and allowing facilities to maintain their usual generator category using the episodic generator provision despite an atypical waste generation event.  Other changes, such as the requirement to make continuing hazardous waste determinations for materials whose properties may change over time, and the enforcement distinction between “independent requirements” and “conditions for exclusion,” may prove troublesome for the regulated community even though EPA contends that these do not represent changes from prior policy and has offered some potentially helpful preamble language.  Regulated entities should track adoption of the final rule in their respective states to identify when the rule will become effective and whether the optional aspects of the package will be adopted.  EPA is also rolling out training sessions and guidance that may help generators understand and adjust to the broad scope of this rulemaking. 

For additional information, please contact Rodd Bender at (484) 430-2317 or Brett Slensky at (484) 430-2322.