The new Hazardous Waste Generator “Improvements” Rule goes into effect in many states this July



March 12, 2018

Environment Law Alert

Author(s): Dana P. Stanton, Allan E. Floro

The U.S. Environmental Protection Agency’s Hazardous Waste Generator Improvements Rule (“the Generator Improvements Rule”), issued in October, 2016, updated certain aspects of the hazardous waste generator regulations. The full text of the rule can be found here. Key changes include allowing generators of hazardous waste to periodically generate a larger quantity of hazardous waste without increased regulatory burdens, and allowing very small quantity generators to send hazardous waste to a large quantity generator under the control of the same entity. The EPA recently published a frequently asked questions page, available here.

The Rule will go into effect in many states this July

The Generator Improvement Rule automatically went into effect on May 30, 2017, in states, tribal lands and territories that are not authorized by EPA for state administration of the federal Resource Conservation and Recovery Act (“RCRA”) program, such as Iowa and Alaska. For states that are authorized by EPA to administer the RCRA program, the rule will become effective when each state adopts the rule and adds it to their regulations. The deadline for states to adopt the rule is July 1, 2018, or July 1, 2019, depending on the complexity of the state’s regulatory process. To date, the rule has been adopted in PA, NJ, KY, NC, GA and UT. The EPA maintains a map of the status of the rule’s implementation for each state here.

The Rule toughens up some provisions

Many provisions of the new rule are more stringent than the former requirements. States are required to adopt the more stringent provisions.

The Generator Improvement Rule replaces the conditionally exempt small quantity generator category with a new category: very small quantity generator (“VSQG”). The monthly generation quantity limits for each category of hazardous waste generator remain the same. Containers, tanks and containment buildings must have labels identifying the hazards of the wastes being accumulated. Before shipping the waste off site, RCRA waste codes must be placed on the containers.

Large quantity generators (“LQGs”) must notify the EPA or the applicable state environmental agency when preparing to close their facility or a waste accumulation area. In addition, LQGs must submit a follow-up notification after the closure has occurred. The post-closure notification must state that the closure of the facility or waste accumulation area meets closure performance standards (known as “clean closure”). If the LQG is unable to achieve clean closure, the facility or waste accumulation area may be subject to landfill closure requirements.

Unlike under prior regulations, satellite accumulation areas are subject to emergency preparedness and prevention requirements. The new regulations also make it clear that incompatible wastes may not be placed in the same containers at a satellite accumulation area, hazardous waste may not be placed in an unwashed container that previously held an incompatible waste, and a container holding a hazardous waste that is incompatible with any waste or other materials accumulated nearby in other containers must be separated from the other materials or protected from them by any practical means.

New LQGs must write a contingency plan that includes a quick reference guide. Existing LQGs must include a quick reference guide whenever they update their contingency plan. The quick reference guide must be sent to local emergency responders and must include the types and names of the hazardous wastes on site and their hazard in layman’s terms; the estimated maximum amount of each hazardous waste on site at any one time; the identification of any hazardous waste that would require unique or special treatment by medical staff in the event of exposure; a map of the facility identifying where hazardous waste may be located; a street map of the facility; the location of the water supply; information about any on-site notification systems to communicate with people at the facility; and the name of an emergency coordinator.

If a generator is a large quantity generator in any month of the year, it must complete the Biennial Report for all the waste generated in that year. Recyclers that do not store waste prior to recycling must complete and submit the Biennial Report. Beginning in 2021, small quantity generators must submit a re-notification every four years.

Some provisions of the new Rule offer more flexibility to generators

Some provisions of the new rule are less stringent than the previous requirements. States have the option of adopting the less stringent provisions.

Generators who experience an event outside of normal production can ship waste off site with a manifest to an RCRA-designated facility without a change to their normal generator category. This is referred to as Episodic Generation.

VSQGs may send waste to LQGs under the same control, even if the LQG is in another state. The consolidated waste then must be shipped from the large quantity generator to an RCRA-designated facility. The 90-day time limit for accumulations starts to run when the waste from the very small quantity generator arrives at the large quantity generator for consolidation.

LQGs that cannot meet the requirement to store ignitable or reactive waste 15 meters from the property line can get a waiver from the local fire authorities if appropriate.

The remaining revisions in the final rule are clarifications, reorganization of the regulations, and explanations of the existing rules; states are not required to adopt those changes but are encouraged to do so.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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