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January 30, 2017

On Nov. 28, 2016, the Environmental Protection Agency published the Hazardous Waste Generator Improvements Rule (“HWGIR”), offering improvements to the Resource Conservation and Recovery Act’s (“RCRA”) Hazardous Waste Generator Regulatory program enacted in 1980. The new rule brings over 60 changes, which are intended to clarify existing requirements, increase flexibility and improve the rule’s usability by the regulating community. This article summarizes a few of the more significant changes.

Definitional Changes

The new rule codifies different levels of regulation for generators of hazardous waste depending on how much waste is generated within a particular month and how long the waste has accumulated. Categories include “Very Small Quantity Generator” (“VSQG”) (previously codified under the term “Conditionally Exempt Small Quantity Generator”), “Small Quantity Generator” (“SQG”) and “Large Quantity Generator” (“LQG”). More guidance is provided on the amounts of hazardous waste, acute hazardous waste and residues from cleanup of acute hazardous waste that determine the category of generator. Definitions for SQG and LQG are also now codified. The final rule clarifies that a generator can only be counted in one category for a calendar month.

Episodic Events

The new rule recognizes that in certain situations, VSQGs and SQGs may generate an uncommon amount of hazardous waste due to an episodic event. VSQGs and SQGs are now able to maintain their existing generator category in the event they generate in one calendar month an amount that would cause them to move into a more stringent generator regulatory category. Generators are limited to one episodic event per year but may petition for a second.

Consolidation of Waste

VSQGs may now send hazardous waste to LQGs to consolidate the waste prior to sending it to a RCRA-designated facility. However, in order to do so, the LQG must be under the control of the same person or entity as the VSQG. This allows for VSQGs to send their hazardous materials to an LQG within their company to manage in an environmentally sound manner. This provision greatly benefits the generators, which may have small satellite locations that qualify as VSQGs.

Separation of Independent Requirements and Conditions for Exemption

There are two types of regulatory standards for the hazardous waste generator program: conditions that must be met in order to obtain an exemption from permitting (“Conditions for Exemption”) and requirements that apply to all generators regardless of whether or not they choose to obtain an exemption from the permit requirement (“Independent Requirements”). The HWGIR clarifies the two. Independent Requirements are the requirements any generator must meet, regardless of whether it accumulates waste. Conditions for exemption are conditional requirements that generators accumulating waste must satisfy only if seeking an exemption. Although the clarification does not fundamentally alter the way the generator regulatory scheme has operated, the explanations provide greater detail as to how the waste generator regulations apply.

Notification Requirements

Prior to the rule, SQGs were only required to submit a notification when they first identified themselves as a hazardous waste generator in order to obtain a RCRA identification number. Under the new provision, SQGs must resubmit a notification once every four years. This provision will ensure that databases of SQGs are more reliable and accurately reflect facility closures, changes of ownership and generator category.

In addition, SQGs and LQGs can now make response arrangements with Local Emergency Planning Committees. New and existing LQGs must submit quick reference guides with key information to local responders to promote easy access during an event. This information should be updated if the generators develop or update their contingency plans. The changes are intended to improve coordination between response agencies and generators for planning and executing emergency response procedures.

Reorganization

The HWGIR reorganized many of the codes to consolidate them into one location. For example, 40 CFR § 261.5 containing regulations applicable to VSQGs, counting of hazardous waste and mixing of hazardous wastes with non-hazardous wastes, has been incorporated into § 262; 40 CFR § 262.34 has been separated into three new sections for SQGs, LQGs and SAAs; and, where reasonable, the text of relevant parts of § 265 has been incorporated throughout all sections (instead of cross referencing it).

By making these changes, the EPA believes the generator regulations will be more flexible, provide more clarity and be more protective of human health and the environment. The new rule becomes effective May 30, 2017.

The full text of the Hazardous Waste Generator Improvements Rule can be found here.

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