The 2016 proposed amendments to the Resource Conservation and Recovery Act (RCRA) were substantial. Some of these changes are helpful, and we discussed those positive changes last fall in one of our blogs.
However, as is often the case with regulatory changes, it’s only after the details are released that we learn the full impact of amendments.
In an article that appeared in The National Law Review, we learned much more about the final version of the RCRA changes. If you are a generator of hazardous waste, we encourage you to read the Federal Register (FR) Final Rule and the article in National Law Review.
Here are few notes on some of the changes with which concerns were expressed:
From Generator to TSDF?
FR Notice: “Comments from industry stakeholders expressed great concern that the language the Environmental Protection Agency (EPA) proposed represented a major shift in the Agency’s enforcement paradigm to a draconian system of enforcement that would lead to an excessive number of violations and penalties. EPA disagrees with this [sic] comments and did not intend to create any sort of shift in EPA’s enforcement actions.”
The Issue/Concern: The EPA proposed that any minor deviation (e.g., administrative oversights) could change (based on the regulator’s discretion) the regulatory status of the facility from a generator to a Treatment Storage and Disposal Facility (TSDF), and all the requirements associated with a TSDF would then apply. Reclassification from a generator to a TSDF carries a substantial increase in regulatory obligations.
Helpful Changes for Episodic Events
FR Notice: “Another provision being added in this final rule will allow VSQGs [Very Small Quantity Generators] and SQGs [Small Quantity Generators] to maintain their existing regulatory category when they generate additional amounts of hazardous wastes as a result of an episodic event, provided they comply with specific conditions.”
The Issue/Concern: This has been viewed as one of the more positive changes to RCRA, as there was previously no provision for episodic events. This should be helpful to SQGs and VSQGs (previously referred to as Conditionally Exempt Small Quantity Generators). In general, SQGs and VSQGs will be allowed one (planned or unplanned) episodic event per year that generates waste (e.g., a tank cleaning, maintenance, short-term projects, an accident, or a spill) above their permitted threshold without changing their classification. As you can imagine, there are numerous details and conditions to this new provision.
“Accurate” and “In the course of Management”
FR Notice: “A person who generates a solid waste, as defined in 40 CFR 261.2, must make an accurate determination as to whether that waste is a hazardous waste…”
The Issue/Concern: Why was the word “accurate” added to determination? The addition of the term accurate was the focus of several comments when the rule was proposed. Could the addition of the term accurate place increased obligations to more thoroughly review QA/QC data with the analytical results? The EPA kept this term but “modified” the regulatory text to provide rationale for the change (use of the word accurate). The EPA states, “Accurate hazardous waste determinations are necessary to ensure the proper management of waste within the RCRA framework; in doing so, environmental protection will be enhanced and greater generator accountability fostered.”
FR Notice: “Requiring that a hazardous waste determination for each solid waste must be made at the point of waste 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 its properties as a result of exposure to the environment or other factors such that its waste classification may have changed.”
The Issue/Concern: Adding “in the course of its management” was a concern for commenters. This might create the need for additional analysis of waste, additional record-keeping requirements, and an opening for regulatory inquiry, even when the characteristics were accurately determined.
There are several other areas addressed in the final rule, including labeling and marking of containers and tanks, changes to the requirements for satellite accumulation areas, record keeping, and training requirements.
The Federal Register notice is about 100 pages in length, and the “deep dive” in the National Law Review spans 12 pages. We, again, encourage you to take a closer look at how these changes may affect you.
Environmental Compliance Assistance
These changes are yet another reminder that environmental regulations are not static, and if you have not assessed your compliance status in the past year or so, you may want to consider an environmental compliance assessment.
For more information about Dragun’s environmental compliance services, contact Matthew Schroeder, M.S., P.E. or Jeffrey Bolin, M.S., CHMM at 248-932-0228.