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:

Airbag waste means any hazardous waste airbag modules or hazardous waste airbag inflators.
Airbag waste collection facility means any facility that receives airbag waste from airbag handlers subject to regulation under §261.4(j) of this chapter, and accumulates the waste for more than ten days.
Airbag waste handler means any person, by site, who generates airbag waste that is subject to regulation under this chapter.

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:

Airbag waste is subject to an accumulation quantity limit of 250 airbag modules/inflators and an accumulation time limit of 180 days.
All airbag waste must be packaged in appropriately designed containers and labeled “Airbag Waste – Do Not Reuse.”
Airbag waste must be sent directly to an airbag waste collection facility or a designated TSD facility.
During transport, airbag waste must be shipped in compliance with DOT hazardous materials regulations in 49 CFR Parts 171 through 180.
Shipment records and confirmation of receipts must be maintained for 3 years.

The agency also added a provision to §262.14(a)(5) allowing VSQGs 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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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.