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In the United States, hazardous wastes are subject to regulations mandated by the Resource Conservation and Recovery Act (RCRA). Every month, we provide clear, in-depth guidance on a different aspect of the RCRA regulations. The information presented here is an excerpt from McCoy’s RCRA Unraveled, 2021 Edition.

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©2021 McCoy and Associates, Inc. All rights reserved.

Recordkeeping

Recordkeeping and reporting requirements are codified in §§262.40–262.43 for LQGs and §262.44 for SQGs (although other generator paperwork provisions are sprinkled throughout the RCRA regs). VSQGs have almost no recordkeeping requirements.

A fairly comprehensive summary of the primary RCRA recordkeeping requirements for the three generator categories is given in Table 1. EPA guidance associated with the recordkeeping provisions given in that table folows. But first, we start off with an example of general applicability.

A business that has been an LQG of hazardous waste since 1980 is sold. The new owner assumes the generator responsibilities in June 2013, including keeping records of hazardous waste activities (e.g., signed manifests) for at least 3 years. Must the new owner keep the previous owner’s records for a period of 3 years, or does the new owner begin the recordkeeping process on the date of sale?

The new owner must keep records of facility hazardous waste activities from the previous 3 years. Therefore, records of hazardous waste sent offsite from the facility in March 2012, prior to the change in ownership, should remain in the new owner’s records until March 2015. [RO 14694]

Table 1

Manifests/exception reports

LQGs and SQGs must keep copies of manifests (signed by the TSD facility) for at least 3 years from the date the waste was shipped offsite. The date of shipment is determined by the date of the initial transporter’s signature—not the date the generator signs the generator’s certification. [RO 12204] Nothing in §262.40(a) specifies that copies of manifests must be kept at the site of generation; instead, copies can be maintained at corporate headquarters or some other centralized location. However, RCRA Section 3007(a) requires generators to provide EPA or state personnel reasonable access to records regarding waste management activities during their inspections. [RO 12199]

VSQGs are not required to use hazardous waste manifests, much less keep copies of them. However, if a VSQG uses manifests for offsite shipment of hazardous waste, it should keep copies of them to help prove to the state its VSQG status (i.e., it is not generating more than 100 kg of nonacute hazardous waste/mo).

EPA determined companies may use an electronic manifest record retention system, provided the system: 1) stores and prints high-quality image files that include handwritten signatures; 2) includes design and operating controls that ensure record accuracy, integrity, and security; and 3) provides indexing and file retrieval features that allow reasonable access by state or EPA inspectors. Prior to implementing such an electronic system, however, regulated parties must verify the system will comply with the appropriate state agency’s manifest retention regulations. This includes the rules of evidence that govern the admissibility of electronically generated records in that state’s courts and agencies. [RO 14105]

“EPA and Department of Transportation (DOT) policies are consistent in this area, as the agencies regard an electronic image of a manifest as sufficient to constitute a record of a manifest that must be retained by RCRA waste handlers. While this policy addressed a fact pattern involving the retention of image files by designated facilities, we believe that image file storage…is also appropriate for generators and transporters as well, and, in fact, the [hazardous materials regulations] allow this result. Therefore, EPA concludes that a generator could satisfy its regulatory obligations with a faxed or scanned image file of a signed manifest delivered to the generator…if the image file is either printed and stored with the generator’s other paper files or retained electronically....” [RO 14791]

LQGs are required to keep copies of manifest exception reports in their files for 3 years. There is no requirement for SQGs to submit or keep copies of formal exception reports. However, we recommend SQGs document their compliance with §262.42(b) and retain such documentation for 3 years.

LDR forms

Copies of LDR paperwork must be retained onsite by LQGs and SQGs for at least 3 years from the date the waste was last sent to onsite or offsite treatment, storage, or disposal. EPA noted in 1997 that “any records kept in connection with the LDR program may be stored electronically.” [62 FR 26004] For example, scanned images of original paperwork that show handwritten signatures are acceptable.

Hazardous waste characterization records

Documentation requirements associated with making a hazardous waste determination for every solid waste produced at an SQG or LQG site are included in §262.11(f). That section requires records of test results, waste analyses, and other determinations developed for waste characterization purposes to be maintained in facility files for at least 3 years from the date the waste was last sent to onsite or offsite treatment, storage, or disposal. Test results and waste analyses would be records maintained if a generator is making analysis-based determinations. “Other determinations” is a reference to documentation reviewed or generated when making a knowledge-based assessment (e.g., SDSs). Both of these recordkeeping requirements are examined in the next two subsections.

VSQGs are required to make hazardous waste determinations for all solid waste they generate at their facility—just like all other generators. [§262.14(a)(2), RO 11958, 14030] However, they are not subject to the requirements for maintaining hazardous waste characterization data/other documentation in their files. Even so, we recommend that VSQGs keep such documentation in their files to prove to state personnel that they legitimately can claim VSQG status.

Although EPA strongly recommends it as a best management practice, generators are not required to document their nonhazardous waste determinations. Even so, the agency recommends that generators document their nonhazardous waste determinations, particularly in situations where the waste may display the attributes of a hazardous waste and where staff turnover may cause a worker to question the contents of a container. [81 FR 85754] In addition, according to EPA “inspectors have the existing authority to require a generator to perform a waste determination during an inspection to support their finding that the waste of concern is not a hazardous waste if no documentation exists.” [81 FR 85753]

Test results and waste analyses

If a facility samples a waste and sends the representative sample(s) for analysis, all sampling/analytical data should be retained in site files for the 3-year period noted previously. These data include [§262.11(f), EPA/530/R-02/003]:

  • Sample location(s) and time(s);
  • Number and size of samples;
  • Sample type (e.g., single grab, composite);
  • Sampling device (e.g., Coliwasa, weighted bottle);
  • Sample collection and handling techniques (chain-of-custody procedures);
  • Timing issues for sample handling and analysis;
  • Analytical methods used and results obtained; and
  • Documentation demonstrating the validity and relevance of such tests (e.g., QA/QC protocols).

“Other determinations” (documentation of knowledge)

When a hazardous waste determination is made in part or in whole based on knowledge, it is critically important that generators document exactly what that knowledge is. In addition to test results and waste analyses, §262.11(f) requires LQGs and SQGs to keep records establishing the basis for all knowledge-based hazardous waste determinations. [RO 13570]

If generators don’t document their knowledge, they can’t prove they made a hazardous waste determination for that solid waste. Relying on knowledge without adequate documentation (“But Brian told me it wasn’t hazardous”) may subject a generator to an enforcement action. Inadequate or insufficient documentation can be considered a violation of §262.11. “EPA, in enforcement cases, looks for documentation that clearly demonstrates that the information relied upon is sufficient to identify the waste accurately and completely.” [EPA/530/R-94/024]

In the 2016 generator improvements rule [81 FR 85732], EPA added regulatory language at §262.11(c–d) to give more clarity as to what it expects to see if a generator uses knowledge to make a hazardous waste determination:

“Acceptable knowledge that may be used in making an accurate determination as to whether the waste is listed may include waste origin, composition, the process producing the waste, feedstock, and other reliable and relevant information.

“The person must apply knowledge of the hazard characteristic of the waste in light of the materials or the processes used to generate the waste. Acceptable knowledge may include process knowledge (e.g., information about chemical feedstocks and other inputs to the production process); knowledge of products, by-products, and intermediates produced by the manufacturing process; chemical or physical characterization of wastes; information on the chemical and physical properties of the chemicals used or produced by the process or otherwise contained in the waste; testing that illustrates the properties of the waste; or other reliable and relevant information about the properties of the waste or its constituents. A test other than a test method set forth in Subpart C of Part 261, or an equivalent test method approved by the administrator under §260.21, may be used as part of a person’s knowledge to determine whether a solid waste exhibits a characteristic of hazardous waste.”

Any of the following information used to make waste determinations should be copied and put in a generator’s files:

  • SDSs or other manufacturing information;
  • EPA’s listing background documents for F- or K-wastes;
  • Regulatory exemptions claimed [e.g., the alcohol exclusion in §261.21(a)(1)] and any guidance supporting such an exemption (e.g., RO documents);
  • Material balances or other calculations for the source or process generating the waste, including raw materials or intermediate products fed to a process;
  • Any knowledge used to eliminate constituents or characteristics that couldn’t be in, or exhibited by, a waste stream;
  • Test data not specified in the RCRA regs (e.g., pH paper results, total waste analyses in lieu of TCLP testing);
  • Constituent-specific chemical test data for the waste from previous testing at the facility that are still applicable to the current waste;
  • Previous test data from other locations using substantially similar processes and/or managing the same type of waste streams; and
  • Other knowledge based on information in manifests, shipping papers, or waste certification notices.

Waste analysis plans

Under the federal RCRA regulations, LQGs and SQGs are required to develop and follow a waste analysis plan only in one situation: if they are treating hazardous waste in a 90/180/270-day accumulation unit for the purpose of meeting an LDR treatment standard. These plans, which are required under §268.7(a)(5), must be maintained in the facility’s onsite files for at least 3 years from the date the waste was last sent to such onsite treatment. Additional guidance can be found at EPA/530/R-12/001.

Inspection records

Generators must inspect 90/180/270-day hazardous waste accumulation containers weekly, and 90/180/270-day accumulation tanks must be inspected daily. These inspections are normally documented on checklists or in operating logs.

Documentation of LQGs’ daily inspections of 90-day accumulation tanks is required per §265.195(g), and weekly inspections of 90-day accumulation containment buildings is required per §265.1101(c)(4). Interestingly, the federal regs don’t require documentation of weekly inspections conducted for LQGs’ 90-day accumulation containers or drip pads. Similarly, nothing in the federal regs requires SQGs to document inspections of 180/270-day accumulation tanks and containers or 90-day drip pads. However, EPA recommends generators document these inspections. [81 FR 85772–3]

Although the federal regulations do not require generators to comply with the inspection records retention obligation in §265.15(d), we recommend this provision be followed anyway—container and tank inspection records should be kept for 3 years from the date of inspection.

Training records

Records showing LQGs have adequately trained facility personnel on an annual basis are required by §262.17(a)(7)(iv) and must be maintained at the facility. Section 262.17(a)(7)(v) specifies that training records for current personnel at LQG facilities must be maintained until the facility closes. For former employees, training records must be kept for at least 3 years from the date the employees last worked at the facility.

There are no recordkeeping provisions in the SQG training regulations at §262.16(b)(9)(iii). However, we recommend SQGs keep records showing that the required training has been provided.

Emergency responder agreements

LQGs/SQGs conducting 90/180/270-day hazardous waste accumulation are required to comply with preparedness and prevention requirements. One of these requirements is coordination between the generator and local authorities (e.g., hospitals, fire departments) on how emergencies will be addressed by both facility and offsite emergency personnel. [§262.256 for LQGs and §262.16(b)(8)(vi) for SQGs]

It is often hard to get hospitals and local authorities to read and comment on contingency plans or other emergency arrangement documents that the generator may prepare. However, it is the generator’s responsibility to reach out to, communicate with, and update such responders, and all communication between generators and these local authorities should be documented. This documentation must confirm either 1) such arrangements actively exist; or 2) in cases where no arrangements exist, attempts to enter into such arrangements were made. [§§262.256(b), 262.16(b)(8)(vi)(B)]

One good way of interfacing with these responders is to invite them out to the facility occasionally for a short walkthrough/tour. This allows them to review the chemicals used, types of wastes generated, and risks associated with the site (possibly followed by taking them out to lunch); these tours should be documented.

An SQG or LQG possessing 24-hour response capabilities may seek a waiver from the fire code authority within the facility’s state or locality as far as needing to make arrangements with the local fire department as well as any other organization necessary to respond to an emergency, provided that the waiver is documented in the operating record. [§§262.16(b)(8)(vi)(C), 262.256(c)]

Contingency plans

LQGs are required to prepare a formal contingency plan that prepares for fires, explosions, or releases of hazardous waste. This plan must meet the requirements of Part 262, Subpart M. It must demonstrate that facility-specific emergency procedures have been developed and will be implemented whenever an emergency involving hazardous waste occurs. The plan must be maintained at the facility and be available for inspection, and it also must be submitted to local emergency response authorities.

Per §262.261(b), the hazardous waste contingency plan may be a standalone document or part of an emergency plan prepared for the facility under another program (e.g., it may be hazardous waste management amendments to a Spill Prevention, Control, and Countermeasures plan previously developed for the facility).

On April 4, 2006 [71 FR 16862], EPA modified the regulations at §262.261(b) to indicate that facilities may consider developing one contingency plan for their entire facility, instead of having separate contingency plans to comply with RCRA, CWA, etc. Use of a single plan should eliminate confusion when facilities must decide which of its contingency plans is applicable to a particular emergency. If facilities decide to develop such a single plan, EPA recommends it be based on the Integrated Contingency Plan (One Plan) Guidance, published in the June 5, 1996 Federal Register [61 FR 28642]. This guidance provides a mechanism for consolidating the multiple contingency plans that facilities have to prepare to comply with various government regulations.

Contingency plans should be reviewed regularly (some states require an annual review). There are five situations identified in §262.263 that require review of, and possible revisions to, the plan. Of those five, one of the most likely is changes to the list of emergency coordinators. Revised plans must be submitted to local emergency response authorities to keep them up-to-date.

Generators need to make sure they will get an immediate and appropriate emergency response from local police, fire departments, emergency response teams, and hospitals. Thus, contingency plans should describe the arrangements agreed to with these authorities and the division of responsibilities between plant and offsite personnel. Written agreements between the facility and these local authorities are preferable; if such agreements are attained, they should be attached to the contingency plan.

SQGs are not required to develop a formal contingency plan as discussed above. Instead, they are required to comply with the emergency response provisions in §262.16(b)(9). As part of compliance with those regs, a list of emergency contacts with phone numbers must be posted next to telephones near the 180/270-day accumulation areas. This posting must also include locations of fire extinguishers and alarms and spill control material. A sample emergency contacts telephone posting form is available from McCoy and Associates’ website at http://www.understandrcra.com/forms.cfm.

Biennial reports

LQGs must submit a biennial report to the EPA region and/or state by March 1 of each even-numbered year. [§262.41] The report covers the generator’s hazardous waste generation and subsequent management activities for the previous odd-numbered calendar year.

LQGs are required to keep copies of biennial reports in their files for 3 years from the due date of the report. Nothing in §262.40(b) specifies that copies of biennial reports must be kept at the site of generation; instead, copies can be maintained at corporate headquarters or some other centralized location. Even so, RCRA Section 3007(a) requires generators to provide EPA or state personnel reasonable access to records regarding waste management activities during their inspections. [RO 12199]

SQGs are not subject to biennial reporting under the federal regulations. [§262.44] Some states require an annual report, and SQGs may be pulled into this reporting requirement per more-stringent state regulations.

Export reports

Both LQGs and SQGs that export hazardous waste out of the United States are required to submit an annual report to the EPA region and/or state by March 1 of each year. [§262.83(g)] The report covers the generator’s hazardous waste export activities for the previous calendar year. Generators are required to keep copies of such annual reports for 3 years from the due date of the report.

Additionally, copies of notifications of intent to export, EPA Acknowledgements of Consent, exception reports, and confirmations of receipt should be maintained in the facility’s files for 3 years from the date the hazardous waste was accepted by the initial transporter. The same recordkeeping period applies to confirmations of recovery or disposal and copies of each contract or equivalent arrangement. [§262.83(i)]

Similar recordkeeping requirements are imposed on small and large quantity handlers of universal waste who export such waste. See §§273.20 and 273.40.

Miscellaneous recordkeeping

In addition to the primary recordkeeping requirements identified in Table 1, generators are required to maintain other miscellaneous records as noted in Table 2.

Table 2


COMPLIANCE
CORNER
 

Topic: Electronic Wastes (E-Wastes)


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Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.