September 18, 2023

Direct Final Rule Clarifies RCRA Regs, Creates Confusion

EPA’s latest RCRA effort is a direct final rule that includes numerous technical corrections to the hazardous waste regulations. [88 FR 54086] Finalized August 9, 2023, the rule primarily corrects typographical errors and incorrect citations while clarifying various provisions tied to the generator improvements rule (GIR), hazardous waste pharmaceuticals rule, and definition of solid waste rule. This rule is effective on December 7, 2023, unless the agency receives any adverse comments on a specific provision. If an adverse comment is received, EPA will publish a timely withdrawal of that provision in the Federal Register. Most of the corrections are non-substantive fixes to typographical errors and citations. However, a few changes in particular are worth highlighting.

Generator improvements rule

EPA is revising Part 262, Subpart L episodic generation provisions by requiring very small quantity generators (VSQGs) to comply with the small quantity generator (SQG) manifest exception reporting requirement in §262.44. [§262.232(a)(5)] The agency emphasizes this is an essential part of the manifest’s cradle-to-grave tracking of hazardous waste and always intended for these requirements to apply to episodic generation for VSQGs.

Regarding SQG episodic generation and the storage of episodic generation waste in tanks, EPA clarifies the 60-day storage limit is based on when the event begins, not when the waste is first accumulated. [§262.232(b)(4)(ii)(C)]. In practice, those dates could be identical.

Waste coding

Before the 2016 GIR, the hazardous waste determination regulations in §262.11 were based on the land disposal restrictions (LDR) program waste coding provisions in Part 268. This link meant there were instances where a listed waste that exhibited a characteristic could have the characteristic code dropped. This link broke when the GIR was finalized, and the updated §262.11 read as if all applicable waste codes must be attached to a hazardous waste, even though the LDR program still allowed certain characteristic codes to be removed.

In the 2023 direct final rule, EPA is adding the following two sentences at the end of §262.11(d):

“Where a waste is both listed and exhibits a characteristic, the listed waste code is sufficient, provided that the listed waste code addresses the constituents and/or properties that cause the waste to exhibit the characteristic. Otherwise, the waste codes must be identified for all applicable listings and characteristics.”

EPA may intend this language to be a revision back to the hazardous waste determination regulations pre-GIR, which matched the LDR requirements of Part 268. However, no regulatory citation is referenced in the new language, and it is unclear if the agency intends facilities to take a different waste coding approach. McCoy and Associates believes more precise waste determination language is needed, and this provision may not take effect on December 7, 2023 due to adverse comments.

Hazardous waste pharmaceuticals rule

Hazardous waste pharmaceuticals may be accumulated in the same container except those prohibited from combustion due to the §268.3 dilution prohibition and those managed under the alternative treatment standards for lab packs found in §268.42(c). In these instances, the pharmaceuticals must be accumulated in separate containers, and the containers must be labeled with all applicable waste codes. One of the changes to the pharmaceuticals rule targets these lab-packed non-creditable and evaluated hazardous waste pharmaceuticals at §266.502(d)(4) and §266.510(c)(4)(vi), respectively. EPA is adding a reference in these pharmaceutical management standards to Part 268, Appendix XI, and Appendix IV to provide a comprehensive list of metal-bearing waste codes to help facilities understand what waste codes may apply during labeling.

EPA is adding language at §266.507(b-d) that the empty pharmaceutical container provisions only apply to “healthcare facilities operating under [Subpart P].” The agency also explains in the rule’s preamble that the §266.507(d) empty container provision does not apply to large hazardous waste pharmaceutical containers, such as 55-gallon drums. Instead, this provision is meant for other containers commonly found in the healthcare setting (e.g., tubes of ointments, nebulizers).

Definition of solid waste rule

In 2008, EPA promulgated (and revised in 2015) the recycling exclusion at §261.4(a)(25) for certain exported hazardous secondary materials. In 2016, EPA strengthened the import/export regulations for hazardous wastes and other RCRA-regulated materials. These export changes were not reflected in §261.4(a)(25) when that exclusion was further updated in 2018. Therefore, the agency is updating this recycling exclusion to match the current RCRA export requirements.

Additional corrections and comments

Many more typographical corrections, regulatory cross-reference updates, and other minor clarifications are made in this rule. EPA considers this direct final rule neither more nor less stringent than the current standards. As such, RCRA-authorized states are not required to adopt it, though the agency encourages states to do so to promote national consistency.

One provision at §262.16(b)(1) setting a 1-kilogram accumulation limit for acute hazardous waste at SQGs is promulgated under HSWA authority. This provision will be effective in all states on the final rule’s effective date unless a state is not authorized for that underlying provision.

Comments may be submitted through October 10, 2023 via Docket ID No. EPA-HQ-OLEM-2023-0081. If EPA receives any adverse comments, it will publish a withdrawal of the associated provision, and that specific regulatory provision will not take effect on December 7, 2023.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental 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.