The new Hazardous Waste Generator Improvements Rule (“Generator Rule” or “Rule”) is the Environmental Protection Agency’s (EPA) first major effort in 35 years to amend its rules that apply to generators of hazardous waste. There are over 60 revisions and new provisions. EPA estimates that this Rule will potentially affect between 424,000 and 677,000 hazardous waste generator locations in virtually all industries and in many other commercial operations in the United States. The new Rule can be found in the Federal Register at 81 Fed. Reg. 85,732 (Nov. 28, 2016), and at the following link: https://www.gpo.gov/fdsys/pkg/FR-2016-11-28/pdf/2016-27429.pdf

The Generator Rule amendments will not take effect in the 48 states that are authorized for the base RCRA program until such states adopt the new rule, which would likely take at least a year or two. In the two states that do not have an authorized base RCRA program (Iowa and Alaska), the Rule changes will take effect on May 30, 2017.

The new Rule reorganizes existing regulations so as to make it easier for generators to find applicable requirements and thus facilitate compliance. The reorganized sections are:

Section 262.13 explains how to determine which category of generator you are: (1) a conditionally exempt small quantity generator, now called a very small quantity generator (VSQG); (2) a small quantity generator (SQG); or (3) a large quantity generator (LQG).

Section 262.14 identifies the requirements that apply to SQGs.

Section 262.15 identifies the requirements that apply to placement of hazardous waste in satellite accumulation areas by SQGs and LQGs.

Section 262.16 identifies the requirements that apply to SQGs.

Section 262.17 identifies the requirements that apply to LQGs.

Section 262.18 identifies the EPA identification number and notification form requirements.

The new Rule also codifies many interpretations, previously found only in EPA letters and memoranda, regarding how the hazardous waste rules apply to generators. For example, EPA makes clear that generators must determine whether solid wastes they generate are hazardous wastes “at the point of waste generation, before any dilution, mixing, or other alteration of the waste occurs, and at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste such that the RCRA classification of the waste may change.[1] The hazardous waste determination must also be “accurate,” and if the generator has insufficient knowledge as to whether a waste exceeds a regulatory threshold, such as the pH limits for corrosivity or flash point for ignitability, the generator must conduct tests on the waste.[2] Another example of a clarifying rule is that hazardous waste in excess of 55 gallons must be removed from a satellite accumulation area and sent off-site or to an on-site less-than 90-day accumulation area within three consecutive calendar days (not 72 hours or three business days) of when the 55 gallon limit is first exceeded.[3]

EPA also adopted three welcome revisions in the final Rule that are less stringent than current hazardous waste regulations. The first revision at 40 C.F.R. § 262.14(a)(5)(viii) allows intra-company consolidation of hazardous waste. Under the new rule, a VSQG can send hazardous waste it generates to an LQG within the same corporate family for consolidation and subsequent treatment, storage or off-site disposal even though the LQG does not have a hazardous waste permit allowing it to receive off-site generated hazardous waste. This change will enable more-efficient handling of hazardous waste within a company. Second, a new rule at 40 C.F.R. § 262.17(a)(vi) allows LQGs to apply for a waiver from their local fire department to accumulate ignitable and reactive hazardous wastes within the currently restricted 50-foot area next to the facility boundary. Third, a new 40 C.F.R. Part 262, Subpart L allows VSQGs and SQGs once a year during a planned or unplanned event to exceed their hazardous waste generator limits (100 kg per month for a VSQG and 1000 kg per month for an SQG) without causing the generator to be subject to the requirements of the next higher level of generator.

There are a number of new, more burdensome requirements in the Rule as well. Examples include:

  1. SQGs, LQGs and transfer facilities must better define the risks of each hazardous waste that is accumulated in a container or tank or in a satellite accumulation area by marking on the container or tank the hazards the waste poses, such as whether it is corrosive, ignitable, etc.[4]
  2. The hazardous waste code must appear on each container of hazardous waste generated by an SQG or LQG when it is transported off-site.[5]
  3. LQGs must notify EPA or their authorized state when the entire facility is closed and confirm that the generator accumulation areas have been properly closed by removal of all hazardous waste and decontamination to below risk-based closure standards.[6]
  4. LQGs must update their contingency plans to include a quick reference guide to assist emergency responders.[7]
  5. Facilities that receive from off-site hazardous waste and recycle the waste without first storing it must now prepare and submit a biennial report.[8]
  6. Beginning in 2021, an SQG will be required to re-notify EPA or the authorized state of its generator status every four years. LQGs must continue to submit biennial reports to EPA (or in annual reports to some authorized states) reconfirming their generator status.[9]

Although the new amendments generally are helpful, or at least manageable, there is one very troubling aspect of the final rule regarding how violations and penalties might be established. As background, EPA has different levels of regulation for generators of hazardous waste depending on how much waste they generate within a particular month and how long they accumulate the waste. Specifically, VSQGs can generate up to 100 kg per month and are subject to very minimal operating requirements. SQGs can generate between 100 and 1,000 kg per month, can store the waste on-site in containers, tanks, containment buildings and drip pads for up to 180 days, and are subject to significantly more operating requirements. LQGs can generate any amount of hazardous waste in a month, but they can only store the waste on-site in containers, tanks, containment buildings or drip pads for up to 90 days, and they are also subject to numerous requirements. If an LQG stores hazardous waste for more than 90 days on-site (or an SQG stores for more than 180 days), it must have a RCRA Part B permit, which brings on the highest level of hazardous waste regulation. The permit triggers dozens of operating requirements in addition to the administrative requirements of applying for and obtaining the permit.

In the past, the foregoing monthly amounts of hazardous waste that can be generated and the 90 or 180 day accumulation periods for LQGs and SQGs respectively have been considered to be “conditions for exemption,” a violation of which means that the generator cannot take advantage of the exemption. For example, if an SQG were to generate more than 1000 kg of hazardous waste in a month, it would lose its status as an SQG, and instead be an LQG that would be subject to all of the LQG requirements. In that case, enforcement personnel typically would penalize the SQG for violating its 1000 kg limit, or in rare cases, consider the SQG, who actually was generating at LQG levels, to have violated the LQG operating requirements that are above and beyond the SQG operating requirements.

Under the final Generator Rule, EPA is now taking the position that if a generator of a purported size/status violates any one of a much expanded list of “conditions for exemptions” under the new Rule applicable to that size/status of generator, that generator has failed to meet the conditions for any size/status exemption, and therefore, is actually storing hazardous waste in a manner that requires a hazardous waste storage permit, which is the very highest level of EPA regulation. The expanded list of “conditions for exemption” under the new Rule includes many operating conditions, like keeping containers closed, that do not distinguish one size generator from another.

Specifically, new rule 40 C.F.R. §262.10(g)(2) provides:

“(2) A generator’s noncompliance with a condition for exemption in this part is not subject to penalty or injunctive relief under section 3008 of RCRA as a violation of a 40 CFR part 262 condition for exemption. Noncompliance by any generator with an applicable condition for exemption from storage permit and operations requirements means that the facility is a storage facility operating without an exemption from the permit, interim status, and operations requirements in 40 CFR parts 124, 264 through 267, 270, and the notification requirements of section 3010 of RCRA. Without an exemption, any violations of such storage requirements are subject to penalty and injunctive relief under section 3008 of RCRA.”

Under this new Rule, even a minor violation could result in a facility being subject to multiple permit violations and very large penalties. For example, an SQG condition for exemption is the requirement to keep containers holding hazardous waste closed at all times except when adding or removing hazardous waste.[10] If one container of hazardous waste is found not to be completely closed during an inspection, under the new Rule the SQG could be subject to penalties for not having a RCRA permit and not meeting the more than two dozen requirements that apply to a permitted storage facility. In other words, dozens of permit violations could be alleged and hundreds of thousands of dollars in penalties could be assessed for what would now be viewed as violations of RCRA permit requirements. These multiple violations and high penalties would not remotely be commensurate with the single violation that actually occurred -- not having a container properly closed.

This aspect of the Rule will lead to “punishment that does not fit the crime.” Several industry and state commenters pointed out the draconian nature of this enforcement position, and noted its illegality on RCRA statutory, due process, and arbitrary and capacious grounds. EPA rejected those concerns, and by doing so, has invited a judicial challenge of this final Rule, which is otherwise mostly non-controversial.