The Hazardous Waste Generator Rule: The Good, The Bad, and The Ugly
Over the 35 years since the original promulgation of the hazardous waste generator rules, a number of concerns and issues have come to light as the program has been implemented in the regulated community. As a result of feedback from the states, experiences of hazardous waste generators as well as EPA’s own evaluations of the program over the years, the Agency has become aware of the need for more clarity, consistency and flexibility in the hazardous waste generator rules. Consolidating input from the many stakeholders impacted, EPA developed the final rules with the intent of improving the entire hazardous waste generator program by strengthening environmental protection while ensuring businesses have the flexibility necessary to conduct successful operations.
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Changes to the Hazardous Waste Generator Rule
The final Hazardous Waste Generator Rule will affect up to 543,000 industrial entities and will require generators to comply with a variety of new regulatory responsibilities. The improvements seek to:
- Reorganize the regulations to make them more user-friendly thus improving compliance by the regulated community
- Provide greater flexibility for hazardous waste generators to manage waste in a cost-effective manner
- Strengthen environmental protection by addressing identified gaps in the regulations
- Clarify certain components of the hazardous waste generator program to clarify ambiguities resulting in improved compliance
The overhaul of the hazardous waste generator regulations impacts practically every component of the program. While some of the final rules are more stringent than existing provisions, there are a few regulations that are less stringent. A summary of the rule stringency includes:
- VSQG waste consolidation
- Episodic generation
- LQG Waiver from 50-foot rule
MORE STRINGENT OR CLARIFICATIONS
- Category determination
- Hazardous waste determinations
- Labeling - Identifying risks of wastes accumulated
- Reporting - Biennial & Re-Notification
- Satellite Accumulation Areas
- Preparedness and planning
The following table outlines the reorganization of the hazardous waste generator rules.
The Final Rule was published in the Federal Register on November 28, 2016. The regulations will go into effect on the federal level and in Alaska and Iowa on May 30, 2017.
- For the other states, the Final Rule will not go into effect until it is adopted by the individual states, for the 1-year implementation that would be July 1, 2018; if statutory change is required the effective date pushes out to July 1, 2019.
- Authorized states must adopt all provisions more stringent than current state regulations. They will not be required to adopt the three provisions in the rule that are less stringent than the current RCRA regulations.
Overall Implications of the Proposed Rule
So many changes in the rules means there are many points of potential compliance risk. Some of the easiest enforcement targets include:
- SQG Re-notification every 4 years
- Documenting waste determinations
- LQG contingency plans
- Waste labeling
There will also be increasing disparity between state programs, as states are only required to adopt provisions more stringent than the current state regulations. This may cause issues for interstate transport, so generators must be aware of state-to-state differences in the regulations.
VSQGs (formerly called CESQG) may send hazardous waste to LQGs under the control of the same person (allows consolidation and improved management of hazardous waste, reduce accumulation time, and reduce the amount of hazardous waste being sent to municipal landfills).
There are specific requirements that both the VSQG and LQG must meet in order to use the consolidation option. Generators must also be aware of state-to-state differences in regulations if the VSQG and LQG are located in different states.
This occurs when a non-routine event, such as a product recall, results in a smaller generator—a VSQG or small quantity generator (SQG)—generating an atypical amount of hazardous waste in one month, triggering more stringent generator regulations.
Under the final rule, a generator can maintain its usual generator category during a non-routine event and avoid the increased requirements of a higher generator status.
- Generators would notify EPA or the state prior to initiating a planned episodic event and have up to 60 days to complete “episodic” event(s) and ship waste off-site.
- VSQG would comply with the requirements and recordkeeping of an SQG
- Waste containers would be labeled as episodic hazardous waste
- Maintain records of the event
NOTE: Generators who use this conditional management benefit MUST meet every condition in order to retain the benefit. If any condition is not met, the generator automatically reverts to the higher generator category. The facility could further be considered to be operating an unpermitted hazardous waste storage facility if it doesn’t meet the higher category.
50-ft Rule Waiver
The final regulation allows an LQG to apply for a site-specific waiver from the local fire authority if the LQG is unable to meet the 50 feet ignitable and reactive hazardous waste accumulation property line condition. If an LQG wants this waiver, they must obtain written approval and keep the written approval in their records.
Rule update includes clarification of how a generator that generates both acute hazardous waste and non-acute hazardous waste in the same calendar month determines its generator category.
Hazardous Waste Determinations
Generators consistently fail to make correct hazardous waste determinations, whether due to a misunderstanding of the existing regulations or lack of awareness of RCRA regulations altogether. To facilitate improvements in this area, clarifications to hazardous waste determination requirements include:
- Confirmation that a generator’s waste must be classified at its point of generation and at any time during management for wastes potentially exhibiting a hazardous characteristic
- Clarification of how generators can use generator knowledge and what is acceptable knowledge. Acceptable knowledge includes knowledge of waste origin, composition, the process producing the waste, feedstock, and other reliable and relevant information. When a hazardous waste determination based on knowledge is made, the generator must document the basis for the determination and retain this information for at least 3 years from the date that the waste was last sent for on-site or off-site treatment, storage, or disposal.
- A more complete explanation of steps a generator should take to evaluate its waste for hazardous characteristics
Generators may not dispose of liquid hazardous waste or free liquids contained in hazardous waste in any landfill. Previously, this requirement applied only to operators of municipal landfills and permitted and interim-status hazardous waste landfills.
Container labeling improvements in the regulations revise the labeling and marking of containers and tanks to clearly indicate the hazards of the hazardous waste contained inside. SQGs and LQGs must mark containers with:
- The words hazardous waste
- An indication of the hazards of the contents of the container, including, but not limited to:
a. the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic);
b. hazard communication consistent with the Department of Transportation;
c. a hazard statement or pictogram consistent with the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard; or
d. a chemical hazard label consistent with National Fire Protection Association (NFPA) Code 704.
3. For vessels that cannot be labeled (some tanks, drip pads, containment buildings, etc.), the label information can be maintained near the vessel.
- Re-notification by SQGs – In order to support development and maintenance of accurate information on SQGs, the Final Rule requires re-notification every 4 years, starting in 2021.
- Biennial Reporting – Currently the biennial reporting instructions and the biennial report regulations in the CFR do not align on reporting requirements. To clarify reporting requirements, the proposed regulations will refer generators directly to the form instructions.
- Owners or operators of facilities that receive and partially reclaim hazardous wastes into a commodity like material, or recycle regulated hazardous without storing it prior to recycling must comply with the biennial reporting requirements.
Satellite Accumulation Areas
In order to enhance flexibility and clarify wording on some of the satellite accumulation area regulations, the following provisions are addressed:
- SQGs and LQGs that accumulate hazardous waste in SAAs will now be required to comply with the special requirements for incompatible wastes
- Allow containers to remain open under limited circumstances, when necessary for safe operations
- Provide maximum weight in addition to volume for acute hazardous waste limit
- Clarify that “three days” means three calendar days
- Explain that when maximum weight or volume is exceeded, waste must be moved to a central accumulation area or TSDF
- containers used in SAAs will be subject to the strengthened marking and labeling standards
- if a container in an SAA is leaking, the generator must immediately transfer the hazardous waste to a container in good condition that does not leak
- Rescind memo allowing reactive hazardous waste to be stored away from the point of generation
Preparedness and Planning
In response to the need for rapid access to a facility’s critical information during an emergency event, the following revisions are included in the final rule:
- Updating the emergency response and contingency planning provisions for SQGs and LQGs to include Local Emergency Planning Committees (LEPC) among those emergency planning organizations with which a generator may make response arrangements
- Requiring that new and existing LQGs submit quick reference guides with the key information when they either develop or update their contingency plans to local responders for easy access during an event.
Answers to some of the most common questions related to the Hazardous Waste Generator Improvements regulations are found in the FAQs outlined below:
Question: What are the benefits of these revisions to the generator regulations?
Answer: The final rule provides both economic and environmental benefits. Below are examples of those benefits:
- The final rule provides flexibility to very small quantity generators (VSQGs)—previously called “conditionally exempt small quantity generators—that generate 100 kilograms or less of hazardous waste per month, to ship their waste to a large quantity generator (LQG) under the control of the same company. This change has the potential to reduce operating costs to the company, reduce environmental liability, increase recycling and reduce the amount of VSQG hazardous waste being sent to municipal solid waste landfills.
- The final rule also addresses episodic generation of hazardous waste. This occurs when a non-routine event, such as a product recall, results in a smaller generator—a VSQG or small quantity generator (SQG)—generating an atypical amount of hazardous waste in one month, triggering more stringent generator regulations. Under the final rule, a generator can maintain its usual generator category during a non-routine event and avoid the increased requirements of a higher generator status.
- This rule also finalizes improvements in risk communication for workers, waste handlers, and emergency responders by requiring additional information on the hazardous posed by a hazardous waste when it is being accumulated on-site.
Question: What changed in the final regulations since the proposal?
Answer: EPA made several significant changes to the final rule as a result of public comments received on the proposal. Some examples of these changes include the following:
- EPA is NOT requiring that generators document all determinations that a waste is not a hazardous waste and maintain that documentation in its record.
- EPA is NOT requiring that generator label containers and tanks of hazardous waste with a description of the contents of the container. The generator must include the words “Hazardous Waste,” a description of the hazards of the container, and the date accumulation started.
- EPA revised the time frame for SQG re-notification to every four years starting in 2021 and moved the reporting period to September 1 of the year the re-notifications are required.
- EPA is extending the time frame for an episodic event (part 262 subpart L) from the proposed 45 days to 60 days.
The final rule contains other revisions to the proposed rule as well, which are described in detail in the preamble to the rule.
Question: How and why will the hazardous waste generator regulations be reorganized?
Answer: With this rule, EPA is reorganizing the regulations so that the hazardous waste generator regulations will generally be found in one place in the Code of Federal Regulations (CFR). EPA sought to provide generators with a more consolidated and clear set of regulations to foster improved understanding of and compliance with the regulations. The specific changes are:
- The VSQG (formerly CESQG) regulations that were previously found in section 261.5 of the hazardous waste regulations at title 40 of the Code of Federal Regulations (CFR) are moved to part 262 so that the generator regulations are all in one part of the regulations.
- Previously, the regulations for SQGs and LQGs were found in part 40 CFR section 262.34 and frequently sent the user to parts 265 and 268 for more information, as necessary. This final rule provides one section of the regulations to each category of generator (section 262.14 for VSQGs, section 262.16 for SQGs, and section 262.17 for LQGs) and moves the content of many of those sections that were previously cross referenced into part 262 so that the reader can find most requirements in one place for review and use.
These organization changes by the Agency result from the 2004 program evaluation of the hazardous waste generator program where the number one response from stakeholders was to improve the user-friendliness of the regulations. EPA believes that these changes along with other clarifications respond to those requests.
Question: There are revisions to the labeling requirements for containers and tanks of hazardous waste. Has EPA taken into account the U.S. Department of Transportation (DOT) and Occupational Safety and Health Administration (OSHA) marking requirements when developing the new regulations?
Answer: The Agency looked very closely at the DOT and OSHA marking requirements when crafting the revised labeling requirements for containers and tanks of hazardous waste. EPA references these marking systems in our revisions as ways a generator can meet the new requirement to identify the hazards of the contents of the containers. EPA believes it is important that employees, transporters, downstream handlers, emergency personnel, and EPA and state inspectors know about the potential hazards of the contents in containers being accumulated, transported, and managed, whether on-site and/or off-site so that the hazardous wastes are managed in a safe and environmentally sound manner.
Question: When will this rule become effective? Must my state adopt this rule?
Answer: This final rule will be effective at the federal level six months after promulgation. For those states and territories that are not authorized for the RCRA program (Alaska, Iowa, and the Indian Nations, and the territories Puerto Rico, American Samoa, N. Mariana and US Virgin Islands), the rule will go into effect on that day. Authorized states will be required to adopt those provisions that are more stringent than the current RCRA generator regulations in order to retain their authorized status. However, these provisions of the rule will not become effective in states authorized for the RCRA program until states have adopted the rule and become authorized for the new provisions. Authorized states will not be required to adopt those provisions of the rule that are less stringent or no more or less stringent than the current hazardous waste regulations.
Question: Will EPA be providing further information on this final rule to the public?
Answer: EPA will be holding two public webinars to present the main provisions in the final rule and to answer questions on the rule. The webinars will be held on November 30, 2016, from 2:00 to 3:30 pm Eastern time and December 5, 2016, from 2:00 to 3:30 pm Eastern time.
Clarifying Enforcement Policies
The Hazardous Waste Generator Improvements Rule also clarifies existing enforcement policies by making a distinction between the “independent requirements” of the Resource Conservation and Recovery Act (RCRA) and the “conditions for exemption” in the RCRA rules.
Independent Requirements in RCRA - these are what EPA calls ‘unconditional demands’ of RCRA
- Identifying hazardous waste and keeping waste ID records
- Counting how much hazardous waste the facility generates to determine generator status
- Obtaining a US EPA ID number (for large and small quantity generators)
Conditions for Exemption Under RCRA – these are additional requirements that generators (even large quantity generators) must follow to be exempt from some of the more burdensome RCRA rules.
Typically these more burdensome rules, such as obtaining a RCRA permit and complying with its requirements, apply only to treatment, storage, and disposal facilities (TSDFs).
For most hazardous waste generators, meeting specific requirements will allow an exemption from a RCRA permit. Some of these conditions include:
- limits on accumulation time
- rules for safe waste storage and labeling
- periodic inspections of hazardous waste areas
- RCRA training requirements
The Importance of Meeting Conditions for Exemption
So what happens if your facility does not meet the conditions of exemption? The Final Rule clarifies that if conditions are not met, EPA can penalize the generator for failure to meet the specific “condition,” AND the Agency can enforce ALL of the requirements that apply to non-exempt facilities.
According to the preamble to the Final Rule, “The primary legal consequence of not complying with the condition for exemption is that the generator who accumulates waste on site can be charged with operating a non-exempt storage facility. A generator operating a storage facility without exemption is subject to, and potentially in violation of, many storage permit and operations requirements in [40 CFR] parts 124, 264 through 269, and 270.”
It’s critical to ensure waste is managed according to the conditions for exemption, otherwise the full weight of RCRA requirements could fall on your facility. For example, if you are a small quantity generator (SQG), but are not meeting the exemption requirements for accumulation time limits or container rules, EPA could fine the facility for failing to meet those conditions, as well as failure to have a RCRA permit, failing to maintain a written contingency plan, failure to have written RCRA training plans, all of which are requirements that normally would not apply to an SQG.
The Enforcement Bottom Line
Large, small, or very small generators must know all the rules that apply to your site. If you’re not meeting the “conditions for exemption,” then in EPA’s view, your facility is not exempt. Failing to meet any of these conditions might subject your facility to burdensome RCRA requirements that typically would not apply.
Keep in mind that civil penalties for hazardous waste violations are now as high as $70,117 per day, per violation, so understanding RCRA regulations and how they apply to your facility is critically important to your continued operation and your facility’s bottom line.
Questions or Need Help?
Give us a call at (512) 301-1451 and we’ll be happy to assist in answering your questions. Also, see our related EHS Blog:
- FACTS AND FAQ ABOUT THE HAZARDOUS WASTE GENERATOR IMPROVEMENTS PROPOSED RULE - http://thrivalschool.com/faq-hazardous-waste-rule/
Additional Useful Links and Guidance
- View the Pre-Publication Copy of the Rule at https://www.epa.gov/sites/production/files/2016-10/documents/disclaimeradded_hazardous_waste_generator_improvements_final_rule_october_26_2016_1.pdf
- Hazardous Waste Generators general information at https://www.epa.gov/hwgenerators
- Links to guidance and FAQs on the Hazardous Waste Generator Improvements Rule can be found at https://www.epa.gov/hwgenerators/final-rule-hazardous-waste-generator-improvements.