JANUARY 2017 - PHE PULSE: 10 THINGS YOU NEED TO KNOW ABOUT UPDATES TO HAZARDOUS WASTE REGULATIONS

On November 28, 2016, the U.S. Environmental Protection Agency (EPA) published its final Hazardous Waste Generator Improvements Rule in the Federal Register. The new rule makes over 60 changes to the existing Resource Conservation and Recovery Act (RCRA) generator regulations. Although some of the changes are minor or simple clarifications, many are significant and potentially applicable to every industry that generates hazardous waste. The new rule reorganizes the regulations to make them more user-friendly, clarifies many ambiguities and contradictions, and addresses previously documented gaps in the regulations.

Here are ten things that you should know about the new rule prior to it taking effect.

1.      VSQG is the new CESQG. The term "conditionally exempt small quantity generator" (CESQG) will be replaced with "very small quantity generator" (VSQG) to improve clarity. VSQGs will have the option to ship their waste to a large quantity generator (LQG) under the control of the same company/owner/person. The waste does not need to be manifested, and it can be self-transported without the need for a licensed hazardous waste transporter. Once the waste arrives at the LQG, it must be managed as hazardous waste under the more stringent requirements applicable to LQGs. The LQG will also be required to notify EPA of this activity, maintain additional records, and document these wastes in their Biennial Reports (when applicable).

2.      New SQG Notification Requirement. The new rule requires small quantity generators (SQGs) to renotify EPA of their continued status as a SQG (if applicable) every 4 years (unless their state has more frequent renotification requirements). The compliance date for this portion of the rule is delayed until 2021 to give states time to update their reporting forms and make other necessary changes.

3.      New Contingency Plan Quick Reference Guide. The new rule requires LQGs to develop a Contingency Plan Quick Reference Guide that they must provide to applicable emergency responders along with the full version of the Contingency Plan. This Guide alerts first responders to the most critical information at the time of an emergency, and must contain eight key elements detailed in the new rule. Generators must also document attempts to make arrangements with local emergency responders (or document that arrangements were sought but not obtained), and keep this documentation in the facility's operating record.

4.      New Episodic Generation Provisions. Episodic generation refers to occasions where a VSQG or SQG exceeds its monthly generation limits due to a planned (e.g., a periodic tank or hazmat locker cleanout) or unplanned event (e.g., an accidental spill/release or unforeseen upset condition). The new rule provides specific guidance and increased flexibility for these occurrences, allowing generators to maintain their existing generator category if they comply with streamlined requirements. Each generator will be allowed to have one episodic event per calendar year, with the ability to petition for a second event if needed. If the first event is planned, the petition for a second event must be for an unplanned event, and vice versa. The facility must notify EPA at least 30 days prior to a planned event or within 72 hours after an unplanned event. The waste generated during the episodic event must be off site within 60 days.

5.      More Detailed Container Labeling Requirements. EPA increased the labeling requirements for all containers of hazardous waste, including drip pads, tanks, and containment buildings. Under the new rule, in addition to being labeled as hazardous waste, all containers of hazardous waste must also be labeled to indicate the hazards associated with the waste (e.g., ignitable, corrosive). Prior to sending hazardous waste off site, all generators must also mark their containers with all applicable RCRA waste codes, or use an accepted equivalent electronic method (e.g., barcoding).

6.      Changes for Satellite Accumulation Areas. The new rule imposes the same labeling requirements on Satellite Accumulation Areas (SAAs) that are currently in place for Central Accumulation Areas (as discussed in Item 5 above). Additionally, containers at an SAA may remain open temporarily, when necessary for safe operation. Furthermore, the rule applies maximum weight limits to storage of acute hazardous waste, in addition to the maximum volume limits already imposed.

7.      Small Changes to Biennial Reporting Requirements. The new rule makes several small changes and clarifications regarding Biennial Reporting. Most significant is that generators that do not store hazardous waste on site prior to recycling are no longer exempt from preparing Biennial Reports to identify the wastes they are recycling. EPA also simplified conflicting guidance to confirm that an LQG must prepare a Biennial Report for the entire calendar year, even for months when they generate wastes at the volume of an SQG.

8.      Clarifications on Hazardous Waste Characterization/Determination.  To assist with hazardous waste determinations (which are a common source of violations), the new rule clarifies that a generator's hazardous waste determination must be accurate and made at its point of generation before any dilution, mixing, or alteration. It also explains more fully how generator knowledge and analytical testing can be used in making hazardous waste determinations and to evaluate hazardous characteristics.

9.      Relaxation of the 50-Foot Rule. Under current rules, LQGs may not store ignitable or reactive hazardous wastes within 50 feet of their property lines. The new rule allows the authority having jurisdiction (AHJ) over the fire code in the facility’s state or locality (e.g., fire marshal) to waive this requirement for LQGs, if the AHJ determines that the LQG’s proposed precautions are appropriate and safe.

10.  When Will This Go into Effect?  The rule becomes effective at the federal level on May 30, 2017. For states and territories not authorized for the RCRA program (Alaska, Iowa, and the territories), the rule goes into effect on that day as well. States  that have been granted the authority to implement RCRA must adopt the provisions of the new rule that are more stringent than the current regulations to retain their authorized status. However, these changes become effective only when the state adopts them or by the EPA-established deadline (July 1, 2018, for most authorized states), whichever comes first. Authorized states will not be required to adopt the less or equally stringent provisions, but they have that option.

This article provides a quick summary of the new Hazardous Waste Generator Improvements Rule so that you can begin to prepare for regulatory changes as they roll out. While these changes won’t have a massive impact on the hazardous waste industry, they do clarify and simplify some regulations. With future regulatory change uncertain under the incoming presidential administration, it is important to understand and prepare for current updates to hazardous waste regulations, to ensure that you stay ahead of the curve. If you have any questions or comments regarding the new rule, or have recommendations for other areas that should be addressed in future articles, please feel free to contact John Ribar (619.260.1033 ext 301) or Brian Whipple (301.907.9078 ext 3029).