December 13, 2018

Conditional Exemption for Airbag Waste

On November 30, 2018, EPA issued an interim final rule addressing airbag waste, which includes both airbag modules and initiators. [83 FR 61552] Because the explosive danger posed by recalled airbag inflators grows with the age of the inflator, EPA wanted to expedite this action to encourage faster collection, treatment, and disposal of these wastes. Thus, the interim final rule was effective on its issue date. The agency will accept public comments on the interim final rule through January 29, 2019.

The first recall of Takata airbags was in 2015. Since then, injuries and deaths of personnel handling the airbags in long-term storage show there is still a significant and growing danger. This interim rule provides a conditional exemption from RCRA regulation for the management and transportation of airbag waste, but the exemption ends when the waste arrives at an airbag collection facility or designated treatment, storage, or disposal (TSD) facility.

EPA believes that this rule will impact more than 15,000 facilities, mostly automobile dealerships, performing the airbag recall work. Many of these facilities are very small quantity generators (VSQGs). To protect these VSQGs from being bumped to a higher generator category, the conditional exemption was crafted so that the airbag waste does not have to be managed under RCRA until it reaches an airbag collection facility or designated TSD facility, either of which would be effectively considered the hazardous waste generator. Below is a brief summary of the regulatory requirements necessary for handlers to enjoy this conditional exemption.

Three definitions were added to §260.10:

Under the new conditional exemption in §261.4(j), airbag waste at the airbag waste handler, or in transport to an airbag waste collection facility or designated facility, is exempt from Parts 262 through 268, 270, and 124. Airbag waste handlers and transporters must comply with the following management requirements for airbag waste in order to take advantage of the exemption:

The agency also added a provision to §262.14(a)(5) allowing VSQGs to be able to manage their airbag waste under the new conditional exemption. Many automobile dealerships would be VSQGs without the airbag waste, and this should encourage them to send their airbag waste to an airbag waste collection facility and not to a municipal solid waste landfill.

Once the airbag waste arrives at an airbag waste collection facility or a designated facility, it becomes subject to full RCRA regulation. [§261.4(j)(2)] EPA has made it explicitly clear in §261.4(j)(3) that the reuse of defective airbag modules in vehicles is considered sham recycling and prohibited under §261.2(g).

This rule is promulgated under the base RCRA program rather than HSWA authority. Thus, while in effect immediately in Iowa and Alaska, other states will need to adopt this rule before affected entities in those states can make use of the conditional exemption. This rule also eliminates specific hazardous waste requirements that would otherwise apply to airbag waste, thereby making the regs less stringent than the pre-existing federal program. As a result, states are not required to adopt the new rule.

 


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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.