Revisions to Hazardous Waste Rule Will Affect 600,000 Hazardous Waste Generators Nationwide

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Revisions to Hazardous Waste Rule Will Affect 600,000 Hazardous Waste Generators Nationwide

On October 28, 2016, the U.S. Environmental Protection Agency (EPA) Administrator signed the final Hazardous Waste Generator Improvements Rule, which includes over 60 changes to the hazardous waste generator regulations known as the Resource Conservation and Recovery Act (RCRA). The update is one of the most comprehensive since RCRA was enacted more than 30 years ago, and is an outcome of many years of feedback and comments from the regulated community. The EPA estimates that the rule change could affect approximately 600,000 generators of hazardous waste nationwide. The RCRA regulations are being updated with changes in the organization of the regulations, more flexibility in the requirements for some hazardous waste generators, more stringent requirements in some circumstances, and makes some technical corrections.

EHS Support has reviewed the pre-publication version of the rule which will be published in its final version in a subsequent Federal Register. Additionally, EHS Support attended EPA’s webinar on the rule change on November 30, 2016. Below is a preview of some of the key provisions of the legislation EHS Support wants to alert our clients to, including:

  • Changes Specific to Conditionally Exempt Small Quantity Generators (CESQGs)
    • Very Small Quantity Generators (VSQGs) Allowed to Ship Hazardous Waste to a LQG
    • Exemption for Episodic Generator of Hazardous Waste
  • Re-organization of Hazardous Waste Rules
  • Waste Determination Requirements
  • Definition of Waste Storage Areas
  • Preparedness, Prevention, and Emergency Procedures
    • Contingency Plans
    • Preparedness and Prevention
    • Notification
  • 50-Foot Rule for Corrosive and Flammable Waste
  • Changes Specific to Small Quantity Generators (SQGs)
    • 4 Year Notification
    • Subpart W
  • RCRA Closure Requirements for Large Quantity Generators (LQGs)
  • Satellite Accumulation Areas

To begin with, EHS Support is providing answers to some frequently asked questions regarding the revised rule.

What is the Schedule for Implementation of the Revisions?

EPA anticipates that the rule will be finalized in Spring 2017. In some instances, certain state programs may be more stringent than the federal program and thus states may choose not to adopt portions of the final rule such as the finalized consolidation provisions allowing VSGQs to send their waste to an LQG under the control of the same person. Further, as reported by EPA during the November 30, 2016, webinar, some states including Pennsylvania and New Jersey may adopt the rule before it is required. Thus, it will be critical to evaluate not only how this federal rule could impact your hazardous waste management, but also to consider how your state and local waste authorities implement these revised requirements.

What is the Cost Versus Benefit of the Changes?

While EPA is providing some additional flexibility to manage hazardous waste, for some generators with the revised regulations for episodic generators and the allowance of VSQGs shipping hazardous waste to a LQG, the rules trigger some additional recordkeeping and notification obligations that the generator should be aware of in order to evaluate the complete picture of cost versus benefit. And, some of the EPA’s clarifications in the rule provide insight to what EPA actually expects – in particular – the waste determination requirements – which is beneficial for all generators.

What are the Next Steps?

EPA will issue a final version of the rule in the coming months. In the meantime, the Agency is hosting at least one more webinar on the rule that is free to the public on December 5, 2016. EPA will also be posted an FAQ on its website. For more information, go to: https://clu-in.org/conf/tio/hwgenerators/

The EHS Support Compliance Team will continue to stay on top of this rule and its adoption at the federal and state levels. Call one of our compliance professionals to discuss how this rule change might impact your operations.  To find out more information, please contact our Compliance Client Manager Kristen Dickey at (303) 518-6414 (kristen.dickey@ehs-support.com).

Changes Affecting Conditionally Exempt Small Quantity Generators

The final rule updates the definition of generators of 100 kilograms or less of hazardous waste or 1 (kg) or less of acutely hazardous waste per month from CESQGs to a very small quantity generators (VSQGs) (40 Code of Federal Regulations [CFR] 260.10). The term VSQG replaces CESQG throughout the revised rule. EPA reports that the intent of the revision was to remove confusion behind the phrase, “conditionally exempt” because all three categories of hazardous waste generators are conditionally exempt from the more stringent requirements of fully-regulated hazardous waste storage facility, interim status, and operating permits under RCRA.

Additionally, the updated rule provides two provisions that were intended to provide flexibility to the VSQGs, specifically, (1) consolidation of VSQG waste at a LQG site and (2) allowance for episodic generation, both of which are described in further detail below.

VSQGs Allowed to Ship Hazardous Waste to a LQG

The final rule provides flexibility to VSQGs by allowing them to ship their waste to a LQG under the control of the same company and consolidate it there before sending it on to management at a RCRA-designated facility, provided certain conditions are met by both parties including the following:

For VSQGs:

  • Under control of the same person – The waste must be shipped to a LQG that is under the control of the same person.  Person and control are further defined in the regulation.
  • Labeling and marking of containers – The revised rule updates requirements for labeling and marking of hazardous waste containers with the intent of improving hazard communication for waste handlers, visitors, and others who may come into contact with hazardous waste at a site. The VSQG (as well as SQGs and LQGs) must label its containers with the words, “Hazardous Waste” and an indication of the hazardous of the containers (i.e., ignitable, corrosive, reactive, toxic); a hazard statement or pictogram consistent with the requirements under OSHA’s Hazard Communication standard of 1910.1200, or a chemical hazard label consistent with the National Fire Protection Code 704, and the hazardous materials requirements of the U.S. Department of Transportation at 49 CFR 172.

For LQGs:

  • Notification – LQGs must submit a notification to EPA or their authorized state at least 30 days before receiving the first shipment of hazardous waste from the VSGQ. EPA will be updating the federal notification form (EPA Form 8700-12) to reflect the required information including the site name(s), addresses(s), and contact information for the VSGQ. EPA anticipates that the notification form will be revised by the time this rule is finalized.
  • Recordkeeping – LQGs are required to keep records for 3 years from the date the hazardous waste is received from the VSQG with the name, site address, and contact information and a description of each waste shipment received, including the quantity and the date the hazardous waste was received.  This can include a bill of lading, manifest, or other shipping paper.
  • Labeling and marking containers – LQGs are required to include the date of accumulation on each hazardous waste container from the VSQG.  The date of accumulation is considered to be the date that the hazardous waste is received from the VSQG. The LQG labeling and marking requirements apply to the LQG for any waste streams received from the VSGQ.
  • Others: The LQG is required to manage the hazardous waste containers from the VSQG in accordance with the same as its other hazardous waste containers; include the waste on its biennial report, and there is no maximum limit of hazardous waste LQGs receive from VSQGs.
Exemption for Episodic Generator of Hazardous Waste

The final rule also addresses episodic generation of hazardous waste for VSQGs and SQGs in 40 CFR 262, Subpart L. Historically, facilities were obligated to achieve compliance based on the quantity of hazardous waste generated in a calendar month – even if that meant that a person’s status changed during a month due to a non-routine event, such as equipment clean-out, known as episodic generation. The increased hazardous waste volume triggers more stringent generator requirements, which can lead to a risk of non-compliance.  Under the final rule, a VSQG or SQG may exceed its generator category limits because of an episodic event while maintaining its existing generator category, provided the following specified conditions are met:

  1. Episodic events are limited to one per calendar
  2. The generator must notify EPA at least 30 calendar days before initiating a planned episodic event or within 72 hours after an unplanned episodic event
  3. A VSGQ must obtain an EPA ID number
  4. The generator must comply with specified hazardous waste management conditions as the waste is accumulated onsite
  5. The generator must use a hazardous waste manifest and a hazardous waste transporter to ship the waste generated by the episodic event
  6. The generator must completed and maintain specified records.

EPA is also allowing generators to request from EPA one additional episodic event within the same calendar year.

The rule provides guidance to clarify which generator category applies when a generator generates both acute and non-acute hazardous waste in a calendar month in 40 CFR 260.10.

Re-Organization of the Hazardous Waste Generator Regulations

In the updated rule, the regulations are re-organized such that the hazardous waste generator requirements including those for VSQGs, which were formerly published in 40 CFR 261.5, are now in 40 CFR 262 (“Conditions for exemption for a very small quantity generator”; 262.14), along with the SQG and LQG regulations. The changes also moved regulations that were cross-referenced in 40 CFR 262 to 40 CFR 262. Further, the requirements for satellite accumulation areas, SQGs, and LQGs (40 CFR 262.34) have been separated into 3 new sections:

  • 40 CFR 262 15: Conditions for exemption for satellite accumulation areas for SQGs and LQGs
  • 40 CFR 265.16: Conditions for exemption for an SQG that accumulates hazardous waste
  • 40 CFR 261.17 Conditions for exemption for an LQG that accumulates hazardous waste, including a new provision covering any was accepted from a VSQG.

Waste Determination Requirements

Referred to as the “…heart and soul…” of the regulatory changes by EPA during the November 30, 2016, webinar, the updated rule provides clarification to the requirements for all generators to conduct a waste determination of solid and hazardous waste. Specifically, the rule finalizes the following in 40 CFR 262.11:

  1. Requiring that a solid and hazardous waste determination must be accurate, and expanding on why this determination is important, i.e., to ensure the proper management of the waste within the RCRA framework;
  2. Requiring that a hazardous waste determination for each solid waste must be made at the point of 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 properties;
  3. Incorporating regulatory language that elaborates on how to make a hazardous waste determination for listed and characteristic hazardous waste (i.e., what is a representative sample; test methodologies; examples of generator knowledge; etc.)
  4. Referencing the applicable RCRA regulations for identifying possible exclusions or exemptions for the hazardous waste at 261.11(e)
  5. Moving the independent recordkeeping and retention requirements for hazardous waste determinations with clarifications on what records must be kept
  6. Requiring SQGs and LQGs to identify the applicable RCRA waste codes for the hazardous waste they have generated, but clarifying that such identification must occur no later than immediately prior to shipping hazardous waste offsite.

Definition of Waste Storage Areas

EPA finalized the definition of “central accumulation area” (CAA) to mean any onsite hazardous waste accumulation area with hazardous waste being stored in units subject to 40 CFR 262.16 (for SQGs, less than 180-day hazardous waste storage area) or 40 CFR 262.17 (for LQGs, less than 90-day hazardous waste storage area). This definition was finalized for convenience and to help the regulatory agencies and hazardous waste generators use a common term when referring to hazardous waste storage areas that are not satellite accumulation areas.

Preparedness, Prevention, and Emergency Procedures

The updated rule finalizes a number of proposed modifications to the conditions for exemption for both SQGs and LQGs regarding emergency preparedness, prevention and emergency procedures. Below is a summary of the changes.

Contingency Plans

The rule requires newly regulated LQGs preparing a Contingency Plan for the first time to include a quick reference guide that contains, at a minimum, the following eight components:

  • Description of the types and names of the hazardous wastes onsite and the hazardous of each hazardous waste
  • The maximum amount/special treatment of hazardous wastes onsite
  • Map with locations of hazardous waste storage, generation, and treatment locations
  • Map of facility and surroundings to identify routes of access and evacuation
  • Location of water supply
  • Identification of onsite emergency notification systems
  • Name of emergency coordinator(s).

Existing LQGs are required to prepare the aforementioned quick reference guide when the next revision/update is required.

Additionally, the rule allows LQGs the flexibility to eliminate unnecessary employee personal information in the Contingency Plan by removing references to addresses and changing the reference to home and office telephone numbers to “emergency telephone number.”

Preparedness and Prevention

The rule has updated language regarding the location of required equipment and access to communications or alarm systems for both SQGs and LQGs. The rule gives flexibility to the generator to store the required equipment in other areas of the facility in situations where it is infeasible or inappropriate for safety reasons to have the equipment located immediately next to hazardous waste generation or accumulation areas.

The rule also clarifies “immediate access” referenced in the regulations under the condition that whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation must have “immediate access” to an internal alarm or emergency communication device, either directly or through visual or voice contact with another employee, unless such a device is not required.  The revised rule with include the parenthetical “(e.g., direct or unimpeded)” after the phrase immediate access.

EPA modified the regulation for SQGs to post emergency information next to the telephone.  The updated language states that an SQG must post the name and emergency telephone number of the emergency coordinator next to telephones or in areas directly involved in the generation and accumulation of hazardous waste.

EPA modified the language of the rule to allow containment and cleanup either to be conducted by the SQG or a contractor on behalf of the SQG.

Notification

The rule has been updated to include Local Emergency Planning Committees (LEPCs) among the emergency planning organizations with which a SQG or LQG must make response arrangements with and requires that new and existing LQGs submit quick reference guides with the key information with then either develop or update their Contingency Plans to local responders for easy access during an event.

50-Foot Rule for Corrosive and Flammable Wastes

The revised rule creates an option for LQGs to request a waiver from the 50-foot rule, which requires LQGs to store any corrosive or flammable wastes at least 50 feet from the property boundary. EPA received numerous comments that this is difficult to meet in urban settings. Under the revised rule, an LQG can petition the local authority, such as a fire protection official, to review and obtain a waiver from the requirement. This does not apply to permitted treatment, storage and disposal facilities (TSDFs).

Changes Specific To Small Quantity Generators

SQGs Must Notify EPA Every 4 Years

The revised rule requires SQGs to re-notify the regulatory agency of its hazardous waste generator status every 4 years (40 CFR 262.18) using the EPA Form 8700-12 or state-equivalent. Historically, SQGs were only required to submit a notification when they first identified themselves as a hazardous waste generator to obtain a RCRA identification number and to be able to ship hazardous waste offsite to a permitted TSDF with no subsequent updates. EPA’s position is that much of the SQG information they have on record is outdated and provides an inaccurate picture of the number of actual SQGs in the regulated community.

SQGs Must Comply with LQG and TSDF Requirements for Drip Pads

The revised rule clarifies that SQGs using drip pads to store hazardous waste are subject to the requirements of Subpart W. Historically, Subpart W applied only to LQGs and TSDFs.

RCRA Closure Requirements for LQGs

The rule was revised to address a gap in the regulations and lack of knowledge on behalf of the regulatory agencies with respect to RCRA closure problems for LQGs. The revised rule requires closure as a landfill if LQGs accumulating hazardous waste in containers in central accumulation areas fail to achieve clean closure. EPA provided comments during the November 30, 2016, webinar that this revision is to make the regulated community aware that they have an obligation to clean close hazardous waste storage areas, even when waste is stored only in containers.  The rule gives LQGs the option to: (1) place a notice in the operating record within 30 days after closure identifying the location of the unit within the facility or meet closure performance standards and notify EPA; or (2) notify EPA when you close the facility or notify EPA 30 days before closing the facility and notify EPA 90 days after closing that the site has complied with closure performance standards or notify that it cannot clean close. LQGs can file for an extension under certain circumstances.

Satellite Accumulation Areas

The revised rule provides some clarifications for the operation of satellite accumulation areas.  The clarifications in 40 CFR 262.15 include:

  • Allows containers to remain open temporarily under limited circumstances if necessary for safe operation
  • Provides a minimum weight in addition to volume for acute hazardous waste limit
  • Clarifies that 3 days means 3 consecutive days
  • Rescinds a memorandum that allowed reactive hazardous waste to be stored away from the point of generation
  • Makes the marking and labeling the same as the updated central accumulation area requirements.

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