December 14, 2016

Changes to Hazardous Waste Generator Regulations

On November 28, 2016, EPA issued a final rule making significant changes to the hazardous waste generator regulations. [81 FR 85732] One of the primary objectives of this rule is to consolidate most of the generator requirements into Part 262 to reduce cross-references to Parts 261 and 265. Other key issues addressed are discussed below.

VSQGs Replaces CESQGs

The term “very small quantity generators” (VSQGs) has replaced the term “conditionally exempt small quantity generators” (CESQGs). Also, VSQGs are allowed to ship hazardous waste without a manifest to an offsite large quantity generator (LQG) if both facilities are under the “control” of the same “person.” To take advantage of this additional management option, the VSQG must mark its containers with certain information. The LQG must 1) notify EPA (using Form 8700-12) at least 30 days prior to receiving the first shipment from VSQGs; 2) maintain records of waste shipments from VSQGs for at least 3 years; 3) mark accumulation units with the date the hazardous waste was received from the VSQGs; and 4) manage the waste received from VSQGs under all regulations applicable to LQGs, including reporting hazardous waste from VSQGs on biennial reports.

New Provisions for Episodic Generation

New provisions allow VSQGs and small quantity generators (SQGs) to maintain their existing generator category in the event of planned or unplanned episodic generation (i.e., generators do not have to count hazardous waste managed as part of the episodic event when making their monthly generator-status determination). This relief for an episodic event is allowed only once per calendar year, although a facility can petition EPA for relief a second time in that year. (However, the second event in that year must be unplanned if the first one was planned and vice versa.) This relief is contingent on meeting the following conditions:

• The generator must notify EPA (using Form 8700-12) no later than 30 days before a planned episodic event or within 72 hours of an unplanned event. Notification of an unplanned event may be made via phone, fax, or email with follow-up submittal of Form 8700-12. A VSQG would also have to obtain an EPA ID number.
• Hazardous waste generated from episodic events must be accumulated in containers or tanks meeting certain labeling requirements and other substantive requirements found in new §262.232.
• Hazardous waste generated during an episodic event must be manifested to an offsite RCRA-designated facility within 60 days from the start of the event.
• Records of the episodic event must be maintained for 3 years from the end date of the event. The information that must be kept is identified in new §262.232.

Conditions for Exemption vs. Independent Requirements

The rule separates generator requirements into two categories:

• Conditions for exemption—These are regulatory requirements primarily associated with satellite and 90/180/270-day accumulation areas that must be met for the generator to be exempt from the requirement to obtain a storage permit. Examples include hazardous waste container and tank standards, preparedness and prevention requirements, and personnel training provisions. Failure to comply with any of these conditions may result in the generator being charged with operating a non-exempt storage facility and potentially with noncompliance with the many permitting or interim status facility provisions in Parts 264, 265, and 270. Such noncompliance is subject to penalty (e.g., a notice of violation and/or civil or criminal penalty) and injunctive relief under RCRA Section 3008.

“It has been the agency’s longstanding position that generators that do not comply with a condition of a generator exemption fail to qualify for the exemption and (if they have not qualified for a larger generator exemption) they would be considered an operator of a non-exempt storage facility, in addition to being a generator.” [81 FR 85746]

• Independent requirements—These are regulatory requirements that are applicable and enforceable and that are not legally tied to the accumulation of hazardous waste. They are “independent” of the conditions for exemption from regulation as a storage facility. Examples include determining the category (VSQG, SQG, LQG) into which the generator falls, using a manifest to ship hazardous waste offsite, and most recordkeeping. Failure to meet an independent requirement will likely result in some form of enforcement action for violating that particular requirement (e.g., a notice of violation, civil or criminal penalty, or injunctive relief under RCRA Section 3008).

Additional Generator Requirements

SQGs and LQGs are subject to additional requirements, the most significant of which include:

1. Hazardous waste determinations for each solid waste must be made at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs. Specific records that are required to support a generator’s hazardous waste determinations have been identified in new §262.11(f). Although EPA strongly recommends it as a best management practice, generators are not required to document their nonhazardous waste determinations. However, 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]
2. The regulations for satellite accumulation containers are revised as follows:
• The accumulation limits for acute hazardous waste are 1 quart for liquid wastes or 1 kg (2.2 lb) for physically solid wastes.
• Satellite containers are now subject to 1) incompatibility requirements (very similar to those in §265.177); and 2) preparedness, prevention, and emergency/contingency plan requirements that are based on the facility’s generator category (i.e., SQG or LQG).
• Satellite containers may also be open 1) when consolidating waste, or 2) when temporary venting is necessary for proper equipment operation or to prevent dangerous situations (e.g., pressure buildups).
3. Satellite accumulation containers and 90/180/270-day accumulation containers and tanks must be marked/labeled with 1) the words “Hazardous Waste”, and 2) an indication of the hazard(s) associated with the contents (e.g., the applicable hazardous waste characteristic(s), a DOT label or placard, an OSHA hazard statement or pictogram, or an NFPA hazard label). Additionally, 90/180/270-day accumulation containers must be marked with the accumulation start date (existing requirement) and, prior to shipment, EPA waste codes.
4. Beginning in 2021 and every 4 years thereafter, SQGs must renotify EPA by September 1 using Form 8700-12. An LQG must renotify EPA by March 1 of each even-numbered year but may submit this renotification as part of its biennial report.
5. LQGs must submit a biennial report that identifies all of the hazardous wastes generated in the calendar year, not just the months the facility was an LQG. Additionally, facilities that recycle hazardous waste without storing the waste must prepare and submit a biennial report.
6. SQGs and LQGs must maintain records documenting their preparedness and prevention arrangements with the local fire department as well as any other offsite organization necessary to respond to an emergency. This documentation must confirm either 1) that such arrangements actively exist; or 2) in cases where no arrangements exist, that attempts to enter into such arrangements were made.
7. LQGs must initially prepare and submit a quick reference guide (i.e., summary) of their contingency plan to local emergency responders the next time they amend their contingency plan. After that, LQGs must update, if necessary, their quick reference guides whenever their contingency plan is amended and submit these updates to local emergency responders.
8. When closing a 90-day accumulation unit, LQGs must either a) place a notice in the operating record within 30 days after closure identifying the location of the unit within the facility, or b) notify EPA or the state within 90 days that they have complied with the closure performance standards for the unit. (Closure requirements do not apply to satellite accumulation areas.)
9. LQGs must notify EPA at least 30 days prior to closing the facility. Additionally, LQGs must notify EPA within 90 days after closing the facility that they have complied with the closure performance standards.

Effective Date and State Authorization

The generator improvements final rule is promulgated under the base (non-HSWA) RCRA authority. Thus, the rule becomes effective in Alaska and Iowa on May 30, 2017. In the 48 authorized states, the new requirements do not take effect until the state adopts equivalent state requirements. Moreover, authorized states are required to modify their programs only when EPA promulgates federal regulations that are more stringent or broader in scope than the authorized state regulations. The following requirements in this rule are more stringent than earlier regulations:

• Subjecting satellite containers to incompatibility requirements and preparedness, prevention, and emergency/contingency plan requirements;
• Requiring SQGs and LQGs to mark/label satellite accumulation containers and 90/180/270-day accumulation containers and tanks with an indication of the hazard(s) of the contents and requiring 90/180/270-day accumulation containers to be marked with hazardous waste codes prior to shipment;
• Requiring SQGs to renotify every 4 years;
• Requiring LQGs to submit a biennial report that identifies all of the hazardous wastes generated in the calendar year, not just the months the facility was an LQG;
• Requiring facilities that recycle hazardous waste without storing the waste to prepare and submit a biennial report;
• Requiring LQGs updating their contingency plans to prepare a quick reference guide to assist responders in an emergency; and
• Requiring LQGs to notify EPA or their authorized state when they plan to close their facilities.

The rest of the final rule requirements are either 1) less stringent than the current hazardous waste regulations, or 2) neither more nor less stringent. Thus, authorized states may, but are not required to, adopt the rest of these changes (although EPA encourages all states to adopt all provisions to promote national consistency).

EPA has provided a summary of the final rule and answers to frequent questions. For a more detailed discussion of the new requirements, plus a review of significant guidance and best management practices contained in the rule preamble, download our McCoy white paper.

 

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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.