New U.S. Requirements to Impact Hazardous Waste Generators in 2017

According to an Special Alert from the U.S. based law firm Manko, Gold, Katcher, Fox LLP (“MGKF”), the rules of the road applicable to facilities generating hazardous waste will change significantly in 2017 due to promulgation by the U.S. Environmental Protection Agency (“U.S. EPA”) of the final Hazardous Waste Generator Improvements Rule, which was published in the Federal Register on November 28, 2016 (81 Fed. Reg. 85372).

The Hazardous Waste Generator Improvements Rule represents the first major overhaul of the generator regulatory program, which has evolved piecemeal since the 1980s.  The U.S. EPA has reorganized the regulations to make them easier to navigate.

This rule finalizes a much-needed update to the hazardous waste generator regulations to make the rules easier to understand, facilitate better compliance, provide greater flexibility in how hazardous waste is managed, and close important gaps in the regulations.

Two key provisions where EPA is finalizing flexibility are:

  • Allowing a hazardous waste generator to avoid increased burden of a higher generator status when generating episodic waste provided the episodic waste is properly managed; and
  • Allowing very small quantity generator (VSQG) and small quantity generators to maintain their existing generator category subject to certain conditions despite an unusual “episodic” event that would otherwise bump the facility to a higher category.

In addition to finalizing key flexibilities, the rule enhances the safety of facilities, employees, and the general public by improving hazardous waste risk communication and ensuring that emergency management requirements meet today’s needs.  These changes impact areas such as making hazardous waste determinations, managing waste in satellite and central accumulation areas, labeling containers and tanks, and developing emergency planning and preparedness procedures.

In the enforcement context, the rule distinguishes between violations of “independent requirements” applicable to facilities simply by virtue of being generators, and failures to satisfy “conditions for exemption” that allow a facility to avoid obtaining a hazardous waste permit.  Facilities found to have neglected exemption conditions – many of which (like labeling a drum) appear relatively minor on their face – could experience significant consequences if deemed to be operating without a permit.

Further, the EPA is finalizing a number of clarifications without increasing burden including a reorganization of the hazardous waste generator regulations so that all of the generator regulations are in one place.

The rule becomes effective on May 30, 2017.  States authorized to implement the hazardous waste program will be required to adopt changes in the rule that are more stringent than the current federal program, and will have the option of adopting less stringent changes.

MGKF recommends facilities take time over the next few months to become familiar with the rule and be prepared to make any necessary adjustments before regulatory agencies begin enforcing the new requirements.

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