Common RCRA Violations

Although we haven’t found any nationwide statistics on the most common RCRA violations, the state of Colorado provided us with a summary of its findings. Table 1 identifies the most common RCRA violations in Colorado, for both large and small quantity generators of hazardous waste, from 1997 through 2006. We believe that these lists are representative of what happens in other states as well. Each RCRA violation is discussed in more detail in the subsections that follow.

 

Training violations

We believe facilities typically receive NOVs for either 1) not providing adequate training to their personnel, or 2) more commonly, not having documentation showing that their people received training (even if they actually did). The RCRA training requirements are codified in §264.16 (for permitted TSD facilities), §265.16 (for interim status TSD facilities and large quantity generators), and §262.34(d)(5)(iii) (for small quantity generators).

The regulations are not very specific with respect to training program content. However, they are very specific with respect to the training records that must be maintained at a facility. Therefore, most RCRA training violations stem from failure to comply with the recordkeeping requirements, rather than the content of the training program itself.

We get a call about once a month from a customer who is expecting a state or EPA inspection and can’t find the certificate of attendance that he or she received at one of our RCRA training seminars. These people know that, no matter what else may be inspected, training records are a “for-sure” item (so we fax them a copy).

To minimize compliance problems associated with training, establish a bulletproof training records retention program to meet the requirements of §§264/265.16(d–e). This will go a long way towards eliminating the number one source of NOVs for noncompliance with the RCRA regs.

Another common trigger for NOVs related to training is when an EPA or state inspector observes noncompliance with some other aspect of the RCRA regs. In this case, they will often check to see if the responsible personnel were trained in that area. For example, if hazardous waste containers are left open or are not properly labeled, in addition to issuing an NOV for those violations, inspectors may also want to review the training program for facility personnel responsible for those activities. If the training program does not adequately address container management and labeling, this could be the basis for another NOV. To help prevent such enforcement issues, review the top ten RCRA violations for your generator class in Table 1, and make sure these activities are covered adequately in the training programs for the appropriate personnel.

Contingency plan violations

The requirement for large quantity generators to have a contingency plan is in §262.34(a)(4), which references compliance with Part 265, Subpart D. Small quantity generators are subject to the less-stringent provisions in §262.34(d)(5), which are discussed below. TSD facilities are also required to have contingency plans. [See Part 264/265, Subpart D.] One of the most common reasons for NOVs associated with contingency plans at large quantity generator and TSD facilities is that the emergency coordinators’ information (names, phone numbers, addresses, etc.) in the contingency plan is out of date. [§§264/265.54(d)] Keeping this information up to date is a challenge, because it changes rapidly, but it’s important and something inspectors check carefully. Incomplete contingency plans also regularly result in NOVs.

Another difficulty with contingency plans is that they must be reviewed/coordinated with local authorities (police, fire departments, hospitals, and emergency response teams) and sometimes this doesn’t happen. Sections 264/265.52(c) require the contingency plan to describe arrangements and coordination between the facility and these local authorities. This review might have been done initially, but any significant changes to a facility’s operations that cause the contingency plan to be revised should also be brought to the attention of the local authorities, and their review of the revised contingency plan should be conducted when the revised plan is sent to them per §§264/265.53(b).

Finally, there has been a trend in recent years towards developing an integrated facility contingency plan, covering all regulatory (environmental, health, and safety) requirements. These so-called “one plans” can be a good idea, but they are sometimes written by non-RCRA personnel who don’t fully understand the RCRA contingency plan requirements. Thus, a state RCRA or EPA inspection of the resulting document may uncover noncompliance with the Part 264/265, Subpart D or §262.34(d)(5) provisions.

Labeling violations

By far the most common labeling violations are hazardous waste accumulation tanks or containers at generator facilities not being labeled with the words “Hazardous Waste” or containers not being labeled with the 90- or 180-day accumulation start date. These requirements are found in §262.34(a)(2–3) of the RCRA regulations [small quantity generators get there by reference in §262.34(d)(4)].

It’s not too difficult to comply with the RCRA labeling requirements for an accumulation tank; just put a big “Hazardous Waste” sign or label on the tank and track the start and end of each accumulation period in a logbook. However, EPA’s guidance says that accumulation start dates should be marked on tanks, as well as containers.

The vast majority of NOVs in this area are for improper/missing container labeling. Make sure your hazardous waste training and management procedures get your people in the mindset that 90- or 180-day containers of hazardous waste must be labeled “Hazardous Waste” and have the 90- or 180-day accumulation start date on them.

One of the problems that crops up is that many 90- or 180-day accumulation containers often begin their lives as satellite accumulation units. The labeling requirements for satellite units are different from those for 90- or 180-day containers. For example, satellite containers do not have to be labeled “Hazardous Waste”; they can be labeled with other words that identify the content of the containers (but they must have a label on them). Additionally, these containers are usually dated when the 55-gallon limit is exceeded (for nonacute hazardous waste). That date of excess satellite accumulation is not necessarily the same date as the start of the 90- or 180-day accumulation period, depending on how long it takes (up to 3 days) for personnel to move it into the 90- or 180-day accumulation area. Therefore, the container may have to be relabeled when it is moved into the 90- or 180-day accumulation area. A “Hazardous Waste” label is required, as well as the 90- or 180-day accumulation start date marking, when that container enters the 90- or 180-day accumulation area. (However, some facilities use the date of excess satellite accumulation as the start of the 90- or 180-day clock. We don’t see any problem with that.)

Failure to make hazardous waste determinations

Anyone who generates a solid waste is required by RCRA to determine if it is a hazardous waste (see §262.11). Yet, when state or EPA personnel are inspecting a site, they often find drums or buckets of “stuff” in warehouses, maintenance areas, behind buildings, and along fence lines that nobody at the facility seems to know anything about. These containers often have no labels on them or the labels that are on them do not reflect the container contents. Such “orphan” materials are usually unneeded or out-of-date products (e.g., paint, cleaners) or wastes that someone at the plant (including contractors) wants to get rid of, but they haven’t followed plant procedures for characterizing and storing the waste materials. Usually in these cases, the inspector will try to determine whether the material is a solid waste; if it is, and at the discretion of the inspector, such a facility can be cited for not making a hazardous waste determination for the solid waste. Numerous enforcement cases and significant monetary penalties have resulted from these situations.

In a case with which we are familiar, a state inspector observed a facility managing a solid waste stream as nonhazardous. The inspector asked to see the waste analysis data supporting the nonhazardous waste determination, but the facility responded that they had made a knowledge-based determination that the material was not hazardous. When the inspector then asked to see the information used to make the knowledge-based determination, the facility couldn’t produce anything. As a result, the inspector cited the facility for not making a hazardous waste determination for the solid waste stream. (The facility subsequently had the material analyzed and it was indeed nonhazardous, but the NOV for not making a hazardous waste determination was still valid.) Thus, whenever knowledge-based determinations are made, they should be documented.

Ensure that procedures have been established for your facility that detail what should happen to materials that are not needed anymore—who should be contacted, how should they be characterized if they are solid waste, to where should they be moved, who should label them, etc. You should also periodically train your people and remind them of the potentially costly problem they could create by moving a drum of stuff out of their area to make it someone else’s problem—it could wind up being everyone’s problem if an inspector spots it.

Finally, all hazardous waste determinations for each solid waste generated at a facility should be documented—whether they are made via testing or knowledge.

Improper tank management

Tanks used for hazardous waste management are subject to Part 264/265, Subpart J standards. Large quantity generators operating 90-day tanks get there by reference from §262.34(a)(1)(ii); small quantity generators’ 180-day tanks are subject only to the less-stringent provisions of §265.201 per reference from §262.34(d)(3).

A number of requirements in Subpart J could get a facility in trouble, but the most likely are 1) inadequate or missing secondary containment for the tank and/or ancillary equipment, 2) failure to conduct and/or document daily inspections of the tank and associated equipment, and 3) noncompliance with the Subpart CC air emission standards.

Land disposal restrictions violations

The land disposal restrictions (LDR) in Part 268 of the RCRA regulations are so complex, that a myriad of noncompliance issues could crop up. From a hazardous waste generators’ perspective, however, the most common source of violations is LDR paperwork. In many cases, the only way that regulators can determine if a generator is in compliance with LDR requirements is by examining copies of the paperwork (notifications and certifications) required by the regulations. If a generator’s LDR paperwork is in order, the likelihood that the facility will encounter LDR enforcement problems is greatly reduced.

Typical LDR paperwork problems to watch out for include:

Open containers

Even at large facilities with good environmental programs in place, it is not uncommon to find open hazardous waste containers during times when no waste is being added or removed. It just seems to be human nature. This is a violation. [§§264/265.173(a) as referenced from §262.34(a)(1)(i) for large quantity generators and §262.34(d)(2) for small quantity generators] Satellite accumulation containers must also be closed per §262.34(c)(1)(i), which references §265.173(a). Train your facility personnel not to leave hazardous waste containers open and continually reinforce this point with signs or other means.

Preparedness and prevention violations

Large and small quantity generators and interim status TSD facilities are subject to the preparedness and prevention provisions of Part 265, Subpart C. Large quantity generators get there via reference from §262.34(a)(4)—small quantity generators from §262.34(d)(4). This subpart requires the following:

Inspections by state or EPA personnel typically uncover missing, inoperable, deteriorated, patched, jury-rigged, or otherwise inadequate equipment; inadequate aisle space; fire hazards; and/or no or out-of-date arrangements between the facility and local emergency responders. Because personnel safety may be compromised if these requirements are not met, preparedness and prevention issues should be a high priority at hazardous waste facilities.

Failure to perform weekly container inspections

All facilities that store hazardous waste in containers (except for conditionally exempt small quantity generators) must inspect their container storage areas weekly. [§§264/265.174 as referenced from §262.34(a)(1)(i) for large quantity generators and §262.34(d)(2) for small quantity generators] Inspections should be focused on proper labeling and closure and on any container leakage, deterioration, corrosion, or bulging. Satellite accumulation containers do not need to be inspected weekly, unless it is a state program requirement. [RO 14418, 14703]

Container storage area inspection logs are virtually certain to be scrutinized during a state or EPA inspection. Having these logs fully completed will help minimize NOVs in this area. A sample container inspection checklist is available from McCoy and Associates’ website at http://www.mccoyseminars.com/forms.cfm.

Used oil violations

Under the federal regulations, the used oil generator requirements in Part 279 boil down to storage in tanks or containers, marking such units with the words “Used Oil,” and cleaning up any releases that may occur. (Of course, there are lots of details.) Of these three basic requirements, the one that gets complied with the least is marking used oil storage containers with the words “Used Oil.” It’s a pretty simple requirement, but one that gets forgotten frequently. Every bucket and other small container holding used oil needs to be so labeled. Train your facility personnel on this issue and remind them of it frequently. Also, not cleaning up small leaks from used oil collection tanks promptly is a source of NOVs.

Inadequate emergency response provisions

Small quantity generators must comply with the emergency response provisions of §262.34(d)(5) in addition to the Part 265, Subpart C preparedness and prevention requirements discussed above. For these generators, the requirements in §262.34(d)(5) take the place of having a formal contingency plan. We expect that the requirements in §262.34(d)(5)(i–ii) are the ones that result in the most NOVs. Specifically, facilities often fail to 1) designate an emergency coordinator at the facility or have one on call, and/or 2) post the information required in §262.34(d)(5)(ii) next to plant telephones. These potential problems can be addressed fairly easily and inexpensively. (A sample emergency contacts telephone posting form is available from McCoy and Associates’ web site at http://www.mccoyseminars.com/forms.cfm.)

Recordkeeping problems

The RCRA regulations require numerous records to be maintained. Although this issue only made it into the top ten violations for small quantity generators, we suspect that large quantity generators are issued NOVs regularly for incomplete or missing RCRA records. The recordkeeping provisions are in §§262.40–262.43 for large quantity generators and §262.44 for small quantity generators. Conditionally exempt small quantity generators have almost no recordkeeping requirements. A summary of the RCRA recordkeeping requirements for the three generator classes is included as Table 2. You may want to review this table carefully to verify that the required records are being maintained by your facility and the record retention periods are being satisfied.

The recordkeeping and reporting requirements for TSD facilities are codified in Parts 264/265, Subpart E.

Other common RCRA violations

When you click on “Common Violations Among LQGs” on EPA’s Office of Solid Waste website, the link takes you to an EPA Region III URL address: http://www.epa.gov/Region3/federal_facilities/common_violations.htm. The violations noted under RCRA Subtitle C on that page that are not included in Table 1 include: