In 1980, the EPA launched perhaps the most comprehensive single environmental program under its jurisdiction in terms of the number of affected U.S. businesses—the Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous waste program. Central to the program was the regulation of generators of hazardous waste where the "cradle to grave" system that RCRA envisioned starts. Given the complete novelty of this comprehensive program at the time these regulations were first developed in 1979, the EPA's initial generator regulations were based upon informed guesses about how many generators would be affected and how generators actually operated. The EPA was keenly aware that their new program needed to be broad enough to be effective but practical enough to be workable.

The EPA made a key policy decision at the start: it would equate the level of environmental risk and environmental requirements with the monthly generation of hazardous waste by volume. An exception was made for a small class of hazardous wastes, deemed acutely hazardous, but given the unprecedented broad definition of "hazardous waste," this policy decision was critical. Regulations would be tailored in terms of requirements to those who were large quantity generators (LQG), small quantity generators (SQG) or so small as to be conditionally exempt small quantity generators (CESQG). These distinctions are critical because RCRA's enforcement sanctions are stiff, and compliance by each facility is linked to the category of hazardous waste the generator falls under.

Thirty-five years of experience has proven this early approach to have been a wise and prudent policy decision. The EPA has been learning ever since and has made several changes over the years to improve the flexibility and functionality of the generator program. In 2004, the EPA solicited comments on a wide range of changes and potential improvements to the Subtitle C program, including the changes discussed below. (See 78 FR 21800, 4/22/2004.) On September 25, 2015, the EPA published a new set of proposed rules to further increase the program's flexibility and greater efficiency. (See 80 FR 57915.) The comment period closes on December 24, 2015. Many changes were proposed, but this note focuses on two particular changes that should substantially improve the ability for businesses to operate reasonably and within the rules.

The first change relates to the ability to avoid a new generator status when in one month hazardous waste generation spikes in an unusual or "episodic" manner. The second change relates to the ability of a CESQG to send its waste to a large quantity generator under the control of the same person for further management. As explained below, both of these circumstances arise regularly in business operations but the current rules create compliance headaches and enforcement exposures that do not enhance environmental protection but rather unnecessarily drive up the costs and details of compliance.

Episodic Waste Generation

The practical problem that has frequently occurred in the generator universe is when a CESQG or an SQG has a one-month spike in its volume of hazardous waste thus changing its status for the entire month. This creates a retroactive liability for that month because certain LQG obligations would not have been fulfilled, and the new volume dictates new disposal obligations. This is a problem that various business sectors such as retailers, gasoline stations, etc., reported to the EPA that they have commonly encountered. Sometimes these spikes were related to positive efforts by the generator to clean out its closets and dispose of unused inventory chemicals. Sometimes production would simply spike causing a one-time increase in waste generation. Under the current program, the generator needs to modify its complete generator compliance program for that facility or it needs to permanently change its status for the future even if its normal future waste volumes do not warrant it.

The proposed new rule addresses this practical problem. It provides that in the event of episodic exceedence, the generator now has a 45-day window to accommodate these wastes. The episode can be planned or unexpected. There are specific requirements for these 45 days, and this exception is intended to be a once a year situation. Please consult the regulations for details. But the episode can be handled as a one-off situation. Given that many companies have electronic compliance and audit systems for each of its locations that could be difficult to change for a single month, this should provide significant cost savings while ensuring compliance.

CESQG Consolidation of Hazardous Waste Volumes with LQGs Under the Control of the Same Person

Many large business operations with diverse locations have many CESQGs. These small locations generate small quantities of hazardous waste but often do not have the staff or infrastructure to efficiently manage these wastes. Consolidating hazardous waste from a CESQG location into LQG location is both environmentally sound and usually economically efficient. But one generator cannot transport waste to another generator under the current rules; CESQG's hazardous waste disposal had to go to a solid waste landfill, a recycling facility, an RCRA TSD facility, or it had to treat the waste on-site. The new rules, however, provide for and even encourage such consolidation between CESQGs and a large quantity generator facility assuming that both locations are owned and operated by the same person. Now, by following certain requirements at the CESQG and LQG locations, it can. An LQG is required to comply with the extensive manifest system and ensure that the wastes from that facility are directed to a qualified treatment, storage, and disposal facility. Greater environmental protection is likely while greater generator flexibility and efficiency are provided. The EPA particularly expects the retail sector to benefit.

The proposed rules demonstrate that the EPA continues to listen and learn from the regulated community regarding what works and what could work better.

This article was originally published in Environmental Leader, November 30, 2015.