EPA Enacts Major Overhaul to Hazardous Waste Generator Requirements

Late last year U.S. EPA enacted the "Hazardous Waste Generator Improvements Rule" which constitutes a major overhaul of the federal hazardous waste regulations (RCRA) that apply to any generator of hazardous waste.  The new rule impacts thousands of businesses, including even small generators of hazardous waste.  EPA estimates that between 424,100 and 676,900 facilities fall under regulation by the rule.

It is possible that the Trump Administration may try to undo the controversial rule as detailed in the previous post.  However, since the final rule has been published in the Federal Register (81 Fed. Reg. 85732) with an effective date of May 30, 2017 it will be more difficult for the new Administration to revoke the rule.

As to timing of these changes, the RCRA program is primarily administered by the states. Therefore, these major changes will not go into effect in Ohio or other delegated states until they are adopted in state rules which will likely not occur until sometime in 2018.

Here is a summary of some of the more notable changes.

Background on Generator Classifications

Generators of hazardous waste may accumulate certain quantities of waste and store hazardous waste on-site without triggering the need to obtain a permit as a Transporter Storage Disposal Facility (TSDF).  The ability to avoid TSDF status and be exempt from needing a permit has been a huge carrot for generators as it avoids more costly cleanup requirements (i.e. RCRA Closure and RCRA Corrective Action) as well as other more stringent regulatory requirements.

The chart below shows the accumulation and storage requirements under federal law for Very Small Quantity Generators (VSQG), Small Quantity Generators (SQG) and Large Quantity Generators (LQG):

Hazardous Waste Generator Requirements

VSQG SQG LQG
Monthly Generation (Per calendar month) up to 2.2 lbs acute hazardous waste or less than 220 lbs of hazardous waste (about 1/2 of a 55 gallon drum) up to 2.2 lbs of acute hazardous waste or between 220 to 2,200 lbs of hazardous waste (about five 55 gallon drums) up to 2.2 lbs of acute hazardous waste or 2,200 or more lbs of hazardous waste
Total Accumulation On-site up to 2.2 lbs of acute or up to 2,200 lbs of hazardous waste up to 2.2 lbs acute hazardous waste or between 220 lbs to 13,200 lbs of hazardous waste (thirty 55 gallon drums) up to 2.2 lbs of acute hazardous waste or equal to or greater than 13,200 lbs of hazardous waste
Accumulation Time None 180 days or 270 days if TSDF is more than 200 miles away 90 days

Click here for a link to an a detailed reference chart from Ohio EPA on RCRA Generator Requirements.  While the quantities and time periods applicable to the three categories of generators remained largely unchanged, the new rule contains provisions regarding the quantity of residues from cleanup of hazardous waste that can be generated under each generator classification.

Adopted- Loss of Exemption for Certain RCRA Violations

In the newly adopted rule, EPA places the RCRA generator regulations into two categories:

  1. Independent Requirements- a violation of regulatory requirement that subjects the violator to enforcement; or
  2. Condition for Exemption- regulations that must be met or the generator may lose its exemption from permitting requirements as a TSDF.  An example of regulations that are "conditions for exemption" include the generation and accumulation limits in the above chart.  However, the new rule expands this category to include other regulations.

The possibility of losing the exemption from TSDF requirements for more minor violations has huge implications for businesses who generate even small quantities of hazardous waste as well as those service companies that transport hazardous waste.  

In the preamble to the rule, EPA asserts this is not a major change because the federal EPA and delegated states maintain enforcement discretion.  However, with so much at stake with regard to triggering TSDF status EPA's statements in the Preamble provide little comfort to businesses.

Adopted- New Generator Classification- Very Small Quantity Generator (VSQG)

All regulations previously applicable to Conditionally Exempt Small Quantity Generators (CESQGs) will now apply to VSQGs.  

Adopted- Definition of Generator Knowledge and Testing Requirements

The new rule contains definitions of each generator classification- VSQG, SQG and LQG.  The new rule adds more detail as to how to determine whether a waste is deemed hazardous or non-hazardous using the company's knowledge of their processes that generate the waste (i.e. "generator knowledge") or through testing of the waste.

For potential characteristic hazardous waste, under the new rule generators must make the determination anytime in the course of the waste's management if its properties change.  Business commented that this could require constant re-evaluation of characteristic hazardous waste.

Adopted- Episodic Generation

One of the potential benefits of the rule is the flexibility provided to remain in the VSQG or SQG classification even if you have a one time episode which would push you into the higher generator classification (i.e. episodic events).  

A VSQG or SQG can have one episodic event per year (with an opportunity for a second).  The waste generated during the episodic event will not be counted toward your generation classification.  

Before taking advantage of the episodic generation provision, the company must notify either U.S. EPA or the delegated state program at least thirty (30) days prior to initiating a "planned episodic event" (i.e. periodic maintenance like a tank clean out).   Or, notify within 72 hours of an unplanned event (i.e. production upset conditions, spills, acts of nature).   The event must conclude within sixty (60) days (i.e. the waste must be taken off-site).

There are special provisions for VSQGs- a) must maintain a RCRA ID number; b) manifest the waste; c) label episodic waste containers; d) identify a emergency coordinator; and e) maintain records associated with the episodic event.

Adopted-  New Emergency Response Requirements

All generators must document that they have attempted to make arrangements with local emergency responders and keep such documentation in the facility's operating record. New and existing LQG must submit "quick reference guides" with key information regarding waste managed at their site to local responders.  

Adopted- Re-Notification of SQG Status

Under current rules, SQG must only notify EPA or the delegated state one time of their SQG status. The new rule requires re-notification every four years unless the state has more frequent notification requirements.  However, U.S. EPA delayed this provision until 2021 to allow states to update their reporting forms.

Adopted- Flexibility for VSQG to Send Waste to LQG under Common Control

The new rule provide greater flexibility to VSQGs allowing them to send hazardous waste to a LQG which is under control by the same company to consolidate the waste before it is sent to a RCRA TSDF. 

Adopted- New Labeling Requirements

Under the rule, EPA will require all containers, tanks, drip pads and containment buildings to be labeled with information pertaining to the the hazardous of the hazardous waste being accumulated.  This labeling requirement includes to satellite accumulation areas and central accumulation areas.  The enhanced labeling requirements do not require the label to include the identity of the contents in the container.

Prior to sending hazardous waste off-site to a TSDF, containers must be marked with the applicable RCRA waste codes or use a bar-coding system that performs the same function.

Adopted- Webinars and Video Courses Deemed Acceptable Training

The new rule will allow generators to satisfy their personnel training requirements through computer-based and electronic training sessions instead of classroom or on-the job training.

Not Adopted- Record Keeping Requirements for all Non-Hazardous Waste Determinations

Under the current rules, every business that generates a solid waste must evaluate the waste to determine if should be classified and managed as a hazardous waste.  Under current rules,  Large Quantity Generators (LQG) and Small Quantity Generators (SQG) must only keep those records when the determination shows the waste is a hazardous waste.  As part of the Generator Improvements Rule, EPA proposed to expand the record keeping requirement to all records pertaining to evaluation of a waste, even when a waste was determined to be non-hazardous.  EPA argued that it has found that generators fail to make accurate hazardous waste determinations 10% to 30% of the time.

If implemented, this would have amounted to a huge expansion of record keeping requirements. The proposal was strongly opposed by businesses during the public comment period.  EPA decided to drop the requirement in the rule. However, while it elected not to finalize this requirement, EPA noted in the preamble to the rule that maintaining records of any determination a waste was non-hazardous was considered a "best management practice."