RCRA Generator Improvements: EPA Hazardous Waste Enforcement Policy
In its Hazardous Waste Generator Improvements Rule, signed for publication in the Federal Register on October 28, 2016, US EPA clarified a key piece of enforcement policy. In the preamble to the Final Rule, EPA draws a distinction between the “independent requirements” of the Resource Conservation and Recovery Act (RCRA) and the “conditions for exemption” in the RCRA rules.
EPA stresses that this is not a change in policy, but a clarification of a long-standing perspective on RCRA enforcement.
What EPA refers to as “independent requirements” are the set-in-stone rules for managing hazardous waste for all generators.
These independent requirements include:
Note: Some of the specifics around these independent requirements will change in the new Generator Improvements Rule. Read more about the Final Rule here.
“Conditions for exemption,” on the other hand, are additional requirements that generators—even large quantity generators—must follow to be exempt from the most burdensome RCRA rules.
In general, the most burdensome rules apply only to treatment, storage, and disposal facilities (TSDFs). These include, for example, the requirement to hold and comply with the terms of a RCRA permit.
Typical hazardous waste generators, including LQGs, are exempt from the permit requirement as long as they meet certain requirements—the so-called “conditions for exemption.” These conditions include limits on accumulation time, rules for safe waste storage and labeling, periodic inspections of hazardous waste areas, RCRA training requirements, and more.
As EPA clarifies in the Final Rule, if these conditions for exemption are not met, not only can EPA penalize the generator for failure to meet the specific “condition,” the Agency can enforce ALL of the requirements that apply to non-exempt facilities.
In other words, if a facility does not manage waste according to the conditions for exemption, they are not considered exempt and are therefore subject to the full bore of RCRA requirements for non-exempt facilities.
As EPA puts it in the preamble to the Final Rule:
Clearly, this would be a major issue for facilities that rely on certain RCRA reliefs to manage their waste efficiently.
Let’s take a look at an example of how this enforcement policy might affect a small quantity generator (SQG) facility. SQGs—who generate more than 100 but less than 1,000 kg of hazardous waste per month—are not required to maintain written contingency plans or written RCRA training plans for hazardous waste personnel.
In order to remain exempt from the contingency plan and training plan requirements (and others), SQGs must follow specific conditions, like the limit on accumulation time (180 days) in 40 CFR 262.16(a), rules for containers in 40 CFR 262.16(b), and emergency preparedness at 40 CFR 262.16(8)–(9).
If these conditions are not met, the facility could face a Notice of Violation not only for failure to meet the conditions, but also for failure to have a RCRA permit, failure to conduct annual re-training of personnel and document RCRA training, failure to maintain a written contingency plan, and other requirements from which SQGs are typically exempt.
The upshot of all this is that, whether you’re a large, small, or very small generator, you must know the all the rules that apply to your site. Recognize that the “conditions for exemption,” in EPA’s view, are just that. If you fail to meet any of these conditions, EPA reminds us, your site may be subject to many RCRA requirements you may think do not apply to you.
Add to this that EPA’s civil penalties for hazardous waste violations rose in 2016 and are now as high as $70,117 per day, per violation, and it’s clear that a complete understanding of RCRA is more valuable today than it’s ever been before.
The 2017 RCRA Hazardous Waste Management Workshop schedule is now available to help you stay in compliance with the big changes to RCRA that will affect your site. We're kicking off 2017 with January hazardous waste training workshops in Cleveland, Cincinnati, Chicago, Indianapolis, St. Louis, Atlanta, Orlando, Mobile, and Richmond.
Meet EPA's annual RCRA hazardous waste training mandate at 40 CFR 262.17 [formerly 262.34(a)] and 265.16, and be ready when the new rule takes effect next year!
Don't let new RCRA rules knock your site out of compliance.
Get up to speed with ALL the changes in EPA's RCRA Generator Improvements Rule when Lion presents a live, expert-led webinar on November 29! Additional sessions will follow.
Available for only $99 for Lion Members, the webinar will help you prepare for the major update to RCRA, and answers questions from colleagues about what your site must do to stay in compliance.
Learn more about the webinar here and sign up now to stay up to date on these significant changes to the RCRA hazardous waste requirements.
EPA stresses that this is not a change in policy, but a clarification of a long-standing perspective on RCRA enforcement.
What Are “Independent Requirements” in RCRA?
What EPA refers to as “independent requirements” are the set-in-stone rules for managing hazardous waste for all generators.
These independent requirements include:
- Identifying hazardous waste and keeping waste ID records.
- Counting how much hazardous waste the facility generates and determining generator status.
- Obtaining a US EPA ID number (for large and small quantity generators).
Note: Some of the specifics around these independent requirements will change in the new Generator Improvements Rule. Read more about the Final Rule here.
What Are “Conditions for Exemption” Under RCRA?
“Conditions for exemption,” on the other hand, are additional requirements that generators—even large quantity generators—must follow to be exempt from the most burdensome RCRA rules.
In general, the most burdensome rules apply only to treatment, storage, and disposal facilities (TSDFs). These include, for example, the requirement to hold and comply with the terms of a RCRA permit.
Typical hazardous waste generators, including LQGs, are exempt from the permit requirement as long as they meet certain requirements—the so-called “conditions for exemption.” These conditions include limits on accumulation time, rules for safe waste storage and labeling, periodic inspections of hazardous waste areas, RCRA training requirements, and more.
What Happens If the Conditions for Exemption Are Not Met?
As EPA clarifies in the Final Rule, if these conditions for exemption are not met, not only can EPA penalize the generator for failure to meet the specific “condition,” the Agency can enforce ALL of the requirements that apply to non-exempt facilities.
In other words, if a facility does not manage waste according to the conditions for exemption, they are not considered exempt and are therefore subject to the full bore of RCRA requirements for non-exempt facilities.
As EPA puts it in the preamble to the Final Rule:
“The primary legal consequence of not complying with the condition for exemption is that the generator who accumulates waste on site can be charged with operating a non-exempt storage facility. A generator operating a storage facility without exemption is subject to, and potentially in violation of, many storage permit and operations requirements in [40 CFR] parts 124, 264 through 269, and 270.”
Clearly, this would be a major issue for facilities that rely on certain RCRA reliefs to manage their waste efficiently.
Effect on RCRA Small Quantity Generators
Let’s take a look at an example of how this enforcement policy might affect a small quantity generator (SQG) facility. SQGs—who generate more than 100 but less than 1,000 kg of hazardous waste per month—are not required to maintain written contingency plans or written RCRA training plans for hazardous waste personnel.
In order to remain exempt from the contingency plan and training plan requirements (and others), SQGs must follow specific conditions, like the limit on accumulation time (180 days) in 40 CFR 262.16(a), rules for containers in 40 CFR 262.16(b), and emergency preparedness at 40 CFR 262.16(8)–(9).
If these conditions are not met, the facility could face a Notice of Violation not only for failure to meet the conditions, but also for failure to have a RCRA permit, failure to conduct annual re-training of personnel and document RCRA training, failure to maintain a written contingency plan, and other requirements from which SQGs are typically exempt.
What Does It All Mean?
The upshot of all this is that, whether you’re a large, small, or very small generator, you must know the all the rules that apply to your site. Recognize that the “conditions for exemption,” in EPA’s view, are just that. If you fail to meet any of these conditions, EPA reminds us, your site may be subject to many RCRA requirements you may think do not apply to you.
Add to this that EPA’s civil penalties for hazardous waste violations rose in 2016 and are now as high as $70,117 per day, per violation, and it’s clear that a complete understanding of RCRA is more valuable today than it’s ever been before.
Learn the New RCRA Rules for 2017!
The 2017 RCRA Hazardous Waste Management Workshop schedule is now available to help you stay in compliance with the big changes to RCRA that will affect your site. We're kicking off 2017 with January hazardous waste training workshops in Cleveland, Cincinnati, Chicago, Indianapolis, St. Louis, Atlanta, Orlando, Mobile, and Richmond.
Meet EPA's annual RCRA hazardous waste training mandate at 40 CFR 262.17 [formerly 262.34(a)] and 265.16, and be ready when the new rule takes effect next year!
Live RCRA Generator Improvements Webinar—November 29!
Don't let new RCRA rules knock your site out of compliance.
Get up to speed with ALL the changes in EPA's RCRA Generator Improvements Rule when Lion presents a live, expert-led webinar on November 29! Additional sessions will follow.
Available for only $99 for Lion Members, the webinar will help you prepare for the major update to RCRA, and answers questions from colleagues about what your site must do to stay in compliance.
Learn more about the webinar here and sign up now to stay up to date on these significant changes to the RCRA hazardous waste requirements.
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