On May 30, 2017, the Resource Conservation and Recovery Act (RCRA) Hazardous Waste Generator Improvements Rule became effective. 81 Fed. Reg. 85732 (Nov. 28, 2016). The rule will not become effective in RCRA-authorized states, however, until the states adopt the provisions and the U.S. Environmental Protection Agency (EPA) approves those state programs that adopt the rule. Please see our Monthly Update for December 2016 for additional detail on the rule. The potential scope of the revised regulatory program is significant: the changes are expected to impact almost 700,000 facilities that generate hazardous waste. The rule is the most comprehensive overhaul of the RCRA generator requirements in 30 years. The rule consists of over 60 changes to the existing regulations and the inclusion of new requirements for generators of hazardous waste, along with a handful of technical corrections. The changes include a reorganization of the hazardous waste generator requirements in an effort to make them more user-friendly and, thus, easier for the regulated community to be in compliance with.

EPA states that the changes also provide a better understanding of how the hazardous waste generator regulatory program works and address gaps in existing regulations that will bolster environmental protection. Additional flexibility for generators is also built into the changes, EPA states. Among other changes, EPA has eliminated the “conditionally exempt small quantity generator” (CESQG) category and replaced it with the “very small quantity generator” (VSQG). The quantity limits for VSQGs remain the same as for CESQGs, but EPA has added additional regulatory provisions to the VSQG requirements. Of the three score of changes, perhaps the most significant change allows VSQGs to send hazardous waste to a large quantity generator (LQG) that is under the control of the same person, provided the waste is consolidated at the LQG before being transported to a RCRA-designated facility. The rule also addresses the issue of “episodic generation,” where a generator’s category could fluctuate based upon the quantity of hazardous waste generated in a calendar month. The rules now allow a VSQG or Small Quantity Generator (SQG) to maintain its existing generator category if an episodic event occurs that would otherwise bump the generator into a more stringent category. The rule also requires periodic re-notification for SQGs every four years; SQGs only notify once under the current federal rules.

EPA’s reorganization of the generator rules fall into four broad categories: (1) integrating the 40 C.F.R. Section 261.5 regulations into 40 C.F.R. Part 262; (2) separating the existing regulations at 40 C.F.R. Section 262.34 for SQGs, LQGs, and satellite accumulation areas into three new sections; (3) using subtitles in new sections; and (4) incorporating the text of relevant 40 C.F.R. Part 265 regulations into the new sections, rather than merely cross-referencing them, as is the current approach. Other changes in the rule include revising the regulations that address closure, waste determinations, contingency plans, and emergency preparedness and prevention. The rule is immediately effective only in Alaska and Iowa, neither of which implement their own hazardous waste program. The provisions of the rule will not become effective in the remaining states authorized for the RCRA program until they have adopted it and become authorized for the new provisions. Three states -- Georgia, New Jersey, and Pennsylvania -- have adopted the rule, but have not yet been authorized by EPA to implement the regulations. EPA maintains a list online of the states where the rule is in effect.

All states must adopt by July 1, 2018, those provisions of the rule that are more stringent than the existing regulations. These include the provisions of the rule that require:

  • SQGs, LQGs and transfer facilities to define better the risks of hazardous wastes accumulated in tanks, containers, drip pads, and containment buildings, as well as when hazardous waste is accumulated in satellite accumulation areas;
  • LQGs to notify EPA or their authorized state when they plan to close their facilities;
  • SQGs to re-notify every four years;
  • LQGs to submit a biennial report that identifies all of the hazardous wastes generated in the calendar year, not just for the months the facility was an LQG;
  • LQGs updating their contingency plans to prepare a quick reference guide for their contingency plans to assist responders in an emergency; and
  • Facilities that recycle hazardous waste without storing the waste to prepare and submit a Biennial Report.

RCRA-authorized states will not be required to adopt those provisions of the rule that are less stringent or no more or less stringent than the current hazardous waste regulations. EPA has identified the following provisions of the rule as being less stringent than the existing regulations:

  • Allowing VSQGs to send hazardous waste to LQGs that are under the control of the same person;
  • Allowing LQGs to apply for a waiver from their local fire department to accumulate ignitable and reactive wastes within the 50 foot facility boundary; and
  • Allowing VSQGs and SQGs to maintain their existing regulatory status if they have an episodic event that generates additional amounts of hazardous waste that would have resulted in them moving into a higher generator category for a short period of time.

The rule also includes several revisions that are neither more nor less stringent. Thus, authorized states may, but are not required to, adopt these changes. These include:

  • Reorganizing the hazardous waste generator regulations to make them more user-friendly;
  • Defining central accumulation area and the generator categories;
  • Mixing a nonhazardous waste with a hazardous waste;
  • Repeating the prohibition for generators from sending hazardous liquids to landfills;
  • Replacing the list of specific data elements with a requirement to complete and submit all data elements required in the Biennial Report form;
  • Deleting the performance track and laboratories XL regulations; and of this preamble); and
  • Technical corrections and conforming changes to various parts of the RCRA regulations.