Last fall, the U.S. Environmental Protection Agency (EPA) issued a proposed rule that would make significant changes to regulatory requirements for hazardous waste generators. Comments were accepted until December 24, 2015. Let’s take a look at what a sampling of stakeholders had to say about EPA’s proposed amendments to hazardous waste generation under the Resource Conservation and Recovery Act (RCRA).
The EPA proposed what it calls the Hazardous Waste Generator Improvements on September 25, 2015. An extended comment period closed December 24, 2015. The Agency has received over 230 comments on the proposal. The Advisor reviewed a number of them and will give you the gist of what folks are saying about the proposed amendments to hazardous waste generator requirements. All the comments can be reviewed at regulations.gov.
Note. The EPA has proposed renaming conditionally exempt small quantity generators (CESQGs) to very small quantity generators (VSQGs). This can be confusing when reading the comments because some commenters use the current CESQG term, while others use the proposed VSQG term. This article will use the proposed VSQG term.
1 – Waste determination: documentation and recordkeeping
There were numerous comments and objections concerning EPA’s proposed amendments for waste determination. One of the most contentious is the requirement to document and keep records of determinations that a solid waste is not a hazardous waste. According to a number of commenters, this requirement would significantly broaden the scope of businesses subject to determination requirements, even in the face of EPA’s admission that there are hundreds of thousands of businesses that generate solid waste that has no potential of being hazardous.
Some commenters also say that the EPA should explicitly state that waste determination not be required for many hazardous secondary materials that are excluded from the definition of solid waste, solid wastes that do not have the potential to be hazardous, and hazardous wastes that are otherwise exempt from determination requirements.
Commenters also object to the proposed requirement that generators keep hazardous waste determination records for the life of the facility.
2 – Waste determination: generator knowledge
The tone of many comments seems to indicate that industry sees a total upending of requirements surrounding generator knowledge in making waste determinations. Concerns include:
That generators “accurately” determine if a waste is hazardous. However, no definition of “accurately” is offered and some contend that the word is ambiguous and could lead to unintended enforcement actions.
- Revision to language on making a determination for a listed hazardous waste to explain more fully how generators can make this kind of determination, including the use of acceptable kinds of generator knowledge.
- A more complete explanation of how a generator should evaluate its waste for hazardous characteristics and a requirement to retain documents that comprise the generator’s knowledge of the waste and support the determination.
Commenters contend that generator knowledge is not usually documented and that required documentation could lead to omissions or mistakes. Some say that the proposal to document generator knowledge for all practical purposes eliminates the use of generator knowledge for waste determinations.
3 – Waste determination: point of generation
The EPA has proposed that waste determination be made at the point of waste generation and “before any dilution, mixing, or other alteration of the waste.” Industry commenters contend that this proposal contradicts several rules and interpretations where waste determinations are made after dilution, mixing, or other alteration.
4 – Conditions for exemption
This proposal is perhaps the most contentious for industry generators. Certain regulations for each generator class are “independent requirements” and certain regulations are “conditions for exemption” from RCRA permitting and the interim status standards.
According to the EPA in the proposed rule, a generator that fails to comply with an “independent requirement” would be subject to enforcement actions concerning the particular requirement. However, a generator that fails to comply with any one of the many conditions of exemption for its class would be considered out of compliance and would default to being an “illegal” treatment, storage, and disposal facility (TSDF) subject to all the TSDF regulations or to the regulations that apply to the next level of generator.
One group of commenters offered the example that under this interpretation a VSQG that fails to label a drum that it sends to an LQG under common control would be considered not only to have violated new labeling requirements but also to have violated up to the 24 rules that apply to SQGs that do not apply to VSQGs.
Commenters suggest that all conditions of exemption be removed and made into independent requirements for the particular class of generator.
5 – Sending VSQG waste to an LQG
Under this proposal, VSQGs would be allowed to send hazardous waste to an LQG that is under the control of the same person as the VSQG. While commenters who addressed this issue were supportive of this proposal, some asked for a clarification of what is meant by “control of the same person as the VSQG” and all want the proposal expanded so that a VSQG would be able to send its hazardous waste to unrelated LQGs under certain conditions.
6 – Labeling
The EPA has proposed significant additions to container marking and labeling requirements. Current container labeling rules call for the date that the storage period began and the words “Hazardous Waste” for containers in central accumulation areas. In satellite accumulation areas, containers may be marked with other identifying words in lieu of the words “Hazardous Waste.”
The proposed changes include keeping the requirements for the accumulation start date and the words “Hazardous Waste” and adding label requirements to include:
- Other identifying words such as the name of the chemical or the Department of Transportation (DOT) shipping name;
- An indication of the hazards of the contents, such as “ignitable;” and
- The applicable hazardous waste codes when the containers are shipped off-site.
Most industry comments concerning the additional labeling requirements centered around “why.” They contend that the additional labeling not only would not be beneficial, but it would also cause confusion with the DOT and with OSHA’s Globally Harmonized System (GHS) labeling requirements. One group of commenters call EPA’s approach “haphazard” and asked that consideration be given to the negative aspects of providing more information, including confusion, inconsistency with other requirements, and inefficiencies in work practices.
7 – Re-notification requirements
The EPA would require that LQGs and SQGs renotify the EPA of hazardous waste activities using EPA Form 8700-12 on a regular basis (February 1 of even-numbered years for SGQs and March 1 of even-numbered years for LQGs). An LQG would be allowed to submit the renotification with its biennial report. Comments included that LQGs already provide updated information to the EPA in the biennial reports. Comments concerning SQGs requirements to renotify generally said that they should only be required to renotify the EPA in the event of a change in ownership or operational status (e.g., to LQG or VSQG or a cessation of operations). In addition, commenters think that the SQG renotification period should be 60 to 90 days.
8 – LQG closure requirements
The EPA has proposed that generator closure requirements be expanded, in part, to apply to LQGs that accumulate hazardous waste in containers, in the same manner as that they apply to other accumulation units such as tanks, drip pads, and containment buildings. The Agency also proposed that LQGs give notice 30 days before and within 90 days after the closure of hazardous waste accumulation units.
A number of commenters strongly opposed adding closure requirements for containers, in part, because they are portable. LQGs would be required to determine every place the container was present and either ensure it was clean or close it under the same requirements as those for a landfill.
9 – Episodic events
The EPA is proposing to allow a VSQG or an SQG to maintain its existing generator status in the event of either a planned or an unplanned episodic event in which the VSQG or SQG generates a quantity of hazardous waste in a calendar month that would otherwise bump the generator into a more stringent regulatory category. The generator would be allowed to take advantage of this provision only once in a calendar year.
Several commenters proposed that this be allowed at least twice a calendar year—once for a planned event and once for an unplanned episode. Many also proposed that the storage limitation for episodic events be extended to 60 calendar days.
10 – Arrangements with first responders
The proposal would require that LQGs and SQGs not only attempt to make arrangements with first responders but to actually make these arrangements with local emergency planning commissions (LEPCs). In addition, LQGs would be required to review contingency plans and immediately make amendments and submit them to LEPCs. Facilities would also be required to generate summaries of their contingency plans and submit these to local responders.
Commenters contend that this is overkill for those facilities that are required to coordinate with first responders under other regulations such as EPCRA and the RMP. Some commenters pointed out that no matter what the generator attempts, it may not be able to make the arrangements because of unwillingness on the part of the emergency responders. Commenters also pointed out that most emergency responders are not going to read the summaries and don’t want to be tasked with maintaining such materials.
For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & Safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.