October 14, 2016

New Guidance On Managing Waste From Accidents

Last month, EPA released two guidance documents discussing the RCRA management of residues resulting from airplane crashes. [RO 14881, 14882] Although the majority of you have never (and hopefully will never) be involved in a major catastrophe like that, there are a few nuggets of information in these documents that can apply to everyday waste generation from accidents (e.g., roadside accidents and spills):

There may be more than one party involved in the response to an accident: the owner of the facility where the accident occurred, a third-party transporter, a third-party emergency response contractor, etc. Which of these parties is the generator of hazardous residues generated at an accident? EPA defines a generator in §260.10 as “any person, by site, whose act or process produces hazardous waste…or whose act first causes a hazardous waste to become subject to regulation.” In the recent guidance, the agency referenced their cogenerator policy from an October 30, 1980 Federal Register notice [45 FR 72026] as updated in RO 14027: where two or more parties are considered to be cogenerators, they should mutually agree (by contract or other means) who will perform the duties of the generator on behalf of the other parties. The new guidance notes that determining the generator depends on site-specific facts, including where the waste is generated and who is ultimately responsible for the cleanup.

Where is the waste generated? Is the waste sent for treatment/disposal from the accident site, or is it moved to an alternative location for storage (e.g., during an investigation process). The location of waste generation can play a factor in determining who would be the generator.
Who is responsible for the cleanup? The company that has been designated to clean up the residues from the accident may have a contractual obligation to be the generator of the waste. This could be a third-party emergency response contractor; however, this does not absolve the facility owner or the agent/owner of any transport vehicle involved in the accident from their RCRA responsibilities, since they are cogenerators. “[W]here more than one party is defined as generator, all are responsible, but EPA is satisfied if only one party performs the duties on behalf of all parties.”

Who must count the residues from the management of the accident towards their generator status? Similar to the question above, it depends on both where the hazardous waste is generated and who is responsible for the cleanup. For example, if an emergency response contractor has a contractual agreement to manage all wastes from the accident, then the hazardous residues would be counted toward the contractor’s generator status.
Whose EPA ID number is used when managing the residues from an accident? Again, that depends on who is generating the waste. That could be the emergency response contractor, the facility owner, or the agent/owner of any transport vehicle involved in the accident. The accident site itself may be the “facility” generating the hazardous waste, or it could be an alternative location where the accident residues are stored during an investigation or legal proceeding. If the generator does not have an EPA ID number, they would be responsible for getting one for the accident site or storage facility.
Don’t forget your exclusions: the scrap metal exclusion from the RCRA hazardous waste regulations can be very useful for managing hazardous metal debris.

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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.