October 14, 2019

State Adoption Status of RCRA Rules

Because EPA can authorize states to administer their own RCRA program, state hazardous waste regulations often differ slightly from the federal regulations. Some regulations are promulgated under RCRA statutory authority while others under HSWA statutory authority. Some regulations make existing regulatory requirements more stringent while others ease the regulatory burden. A rule a generator must abide by in one state may, therefore, not be a requirement in another state. Fortunately, EPA keeps track of the state adoption status of some of these rule changes on its own dedicated website color-coded maps. If a rule you are interested in is not discussed below, you can check the state adoption status via EPA’s Authorization Status of all RCRA/HSWA Rules.

Excluded-Solvent Contaminated Wipes Rule

This rule provides two different exclusions for solvent-contaminated wipes. [78 FR 46448] Section 261.4(a)(26) excludes solvent-contaminated wipes that will be laundered and reused from the definition of solid waste if certain conditions are met. Section 261.4(b)(18) excludes solvent-contaminated wipes from the definition of hazardous waste, again, if certain conditions are met. According to the map on EPA’s website, as of September 6, 2019, 40 states have either adopted both exclusions or have a state interim policy on wipes in effect. Rhode Island has only adopted the §261.4(a)(26) exclusion. Nine states and the District of Columbia have not adopted either of the exclusions.

Definition of Solid Waste (DSW) Rules

The DSW rules provide three exclusions from the definition of solid waste for certain hazardous secondary materials that will be reclaimed. Originally promulgated in 2008 [73 FR 64668], the rules have undergone repeated court challenges resulting in a modified 2015 rule [80 FR 1694] and 2018 rule [83 FR 24664]. The rules also established four “legitimacy criteria” that must be met, or considered, for all recycling activities. As shown on the map on EPA’s website, as of August 30, 2019, 12 states have the entire 2018 rule in effect, 14 states have the entire 2015 rule in effect, two states have only the mandatory portions of the 2015 rule in effect, and the other 22 states and the District of Columbia do not have any of the rules in effect.

Generator Improvements Rule

The 2016 GIR provided a massive overhaul of the hazardous waste generator regulations. [81 FR 85732] The rule made some provisions more stringent, provided clarification on existing rules, created a very useful episodic generation allowance, tightened up waste determination requirements, and much more. Though the more stringent provisions of this rule were supposed to be adopted by July 1, 2019, many state agencies are behind on this schedule. According to EPA’s map, as of September 24, 2019, 23 states have the GIR in effect. The other 27 states and the District of Columbia have not yet adopted the GIR.

Hazardous Waste Pharmaceutical Rule

EPA’s “pharma rule” contains multiple provisions including management standards for hazardous waste pharmaceuticals, a sewering prohibition, new empty-container standards, and an amendment to the P075 nicotine listing exempting FDA-approved over-the-counter nicotine replacement therapies. [84 FR 5816] While the P075 amendment makes the regulations less stringent, most other provisions of the pharma rule make the regulations more stringent and, hence, must be adopted by states. Additionally, the sewering prohibition was promulgated under HSWA authority, meaning it is currently in effect in all states whether the state has adopted the provision or not. According to EPA’s maps, as of September 3, 2019, the “pharma rule” is effective in only eight states. The P075 amendment is effective in 10 states. The rule is awaiting adoption in all other states and the District of Columbia.

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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.