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February 08, 2016
Two added benefits of the proposed generator rule
By Elizabeth M Dickinson, JD, Senior Legal Editor - EHS

The EPA published its proposed Hazardous Waste Generator Improvements Rule on September 25, 2015, that it says addresses problems the Agency identified with the current generator regulations:

  • Ambiguities, inconsistencies, and gaps;
  • Not enough flexibility for generators to manage their hazardous waste in a cost-effective and protective manner; and
  • Complicated organization of regulations that is not user-friendly and readable.
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The EPA has proposed over 60 changes to the hazardous waste generator regulations, and many of them will include additional responsibilities for generators that will, in the opinion of many generators, require more compliance time and effort. Among these are the requirements to document and keep records of determinations that a solid waste is not a hazardous waste, to include more information on container labels, and to make emergency response arrangements with local emergency planning commissions.

However, the proposed rule adds two new “voluntary” programs that that you may not have heard about but that could be very beneficial to you, especially if you’re a conditionally exempt small quantity generator (CESQG) or a small quantity generator (SQG). These programs give generators the option of:

  • Consolidation of CESQG hazardous waste by large quantity generators (LQGs) under the same ownership, and
  • A once-a-year exemption from changing generator status for CESQGs and SQGs that change regulatory status as a result of an episodic event.

Each of these programs is voluntary in the sense that each is optional, not mandatory. In addition, they should be of interest to generators in that either program, if followed, would provide a generator with greater flexibility in how it manages its hazardous waste. In addition, the EPA estimates that the annualized net cost savings or benefits for facilities opting to take advantage of these two voluntary programs is between $6.2 million and $12.2 million (at 7% discount rate), resulting in a net annualized cost of between $0.1 million and $5.2 million.

Episodic events

The proposed rule would allow a CESQG, renamed a “very small quantity generator” (VSQG) by the proposed rule, or an SQG to maintain its existing generator category if, as a result of a planned or unplanned episodic event, the VSQG or SQG generates a quantity of hazardous waste in a calendar month sufficient to bump it up temporarily into a more stringent generator category. An episodic event is defined as, “An activity or activities, either planned or unplanned, that does not normally occur during generator operations, resulting in an increase in the generation of hazardous wastes that exceeds the calendar month quantity limits for the generator’s usual category.”

So, what are episodic events? Examples of planned episodic events include tank cleanouts, short-term construction projects, site remediation, equipment maintenance during plant shutdowns, and removal of excess chemical inventories. Unplanned episodic events would include production process upsets, product recalls, excess inventory, accidental spills, or an “act of nature,” such as a tornado, hurricane, or flood.

Of course, VSQGs and SQGs must comply with specified conditions in order to take advantage of this provision. Under the proposed rule, only one episodic event per calendar year is allowed, and VSQGs and SQGs must:

  • Notify the EPA at least 30 calendar days before initiating a planned episodic event or within 24 hours after an unplanned episodic event or as soon as possible. Notification must include the start and end dates (no more than 45 days apart) and detailed information about the event.
  • Identify in the notification a facility contact and an emergency coordinator with 24-hour telephone access to discuss notification submittal or to respond to an emergency. 
  • Comply, as the waste is accumulated on-site, with certain hazardous waste management conditions, including:
    • Accumulation in container or tanks that meet specific standards; no accumulation in drip pads or containment buildings
    • Containers/tanks marked “Episodic Hazardous Waste” and with other waste identifying information as specified
  • Use a hazardous waste manifest and transporter to ship episodic hazardous waste to a Resource Conservation and Recovery Act (RCRA)-designated facility within 45 calendar days from the start of the episodic event.
  • A VSQG must have or obtain an EPA identification number.
  • Complete and maintain records for 3 years from the end date of the episodic event.

The EPA currently estimates that 1,270 to 2,550 generators could potentially take advantage of this provision if finalized, although the Agency suspects that’s a low estimate. Comments the EPA has received concerning this proposed program include a desire that episodic events be allowed at least twice a calendar year—once for a planned event and once for an unplanned episode—and that the on-site storage limitation for wastes from episodic events be extended from 45 days to 60 calendar days.

Sending VSQG hazardous waste to an LQG

The EPA also proposes to allow VSQGs to send their hazardous waste to an LQG that is “under the control” of the same person as the VSQG, provided both the VSQG and LQG comply with specified conditions. For the purposes of this program, the EPA states that “control” means “the power to direct the policies of the generator site, whether by the ownership of stock, voting rights, or otherwise” and excludes contractors that operate generator sites on behalf of a different person.

The EPA believes that this new provision would provide an additional option for VSQGs to manage their hazardous waste and believes that there are numerous existing situations in industry, government, and academia where an organization with satellite locations that qualify as VSQGs could take advantage of this proposed change. Here’s what needs to happen to benefit from this proposed program:

  • Both VSQGs and LQGs must be under the control of the same person
  • VSQGs mark their hazardous waste containers with:
    • “Very Small Quantity Generator,” and
    • Other words that identify the contents (e.g., “acetone” type or class of chemical), and -An indication of the hazards of the contents (e.g., applicable hazardous waste characteristics, Department of Transportation (DOT) hazard class label, Occupational Safety and Health Administration label)

LQGs are required to:

  • Submit notification to the EPA on the site ID form (EPA Form 8700-12) 30 days before receiving the first VSQG hazardous waste shipment and update as necessary.
  • Maintain records for 3 years from the date the hazardous waste was received from the VSQG with:
    • The name, site address, and contact information for each VSQG; and
    • A description of each waste shipment received from the VSQG, including the quantity, EPA hazardous waste number(s), and the date of receipt.
  • Label and mark containers with the date accumulation started (i.e., date received from a VSQG)
  • Manage all incoming hazardous waste from a VSQG in compliance with the regulations applicable to the LQG generator category.

Note that the current standards for managing CESQG (VSQG) waste still would apply to materials going to an LQG under this provision, including the exemption from using a hazardous waste manifest to ship VSQG waste. VSQGs must still follow DOT shipping requirements for their shipments to the LQG.

While commenters are supportive of this proposed consolidation of VSQG hazardous waste, some want more clarification of what is meant by “under the control” of the same person as the VSQG, and all want the proposal expanded so that a VSQG can send its hazardous waste to unrelated LQGs under certain conditions.

What’s next?

It’s not known at this point when the Hazardous Waste Generator Improvements Rule will be finalized, although the EPA claims that it will be this fall. Whether the episodic generation program and the program for VSQGs to send their hazardous waste to an LQG will be modified by the EPA remains to be seen. RCRA authorized states (all but Alaska and Iowa) are required to modify their RCRA programs only when the EPA promulgates federal regulations that are more stringent or broader in scope than the authorized state regulations. For those changes that are less stringent, states are not required to modify their programs. The provisions of this proposed rule are almost evenly split between being less stringent and being more stringent than current regulations. Consequently, a state could choose not to adopt the requirements that are less stringent. Because the episodic generation program and the program for VSQGs to send their hazardous waste to an LQG are considered less stringent requirements, your state may decide to adopt them, or may not.

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