The Hazardous Waste Generator Improvement Rule – Overview and What’s Happening in California

As many of you know, the U.S. Federal hazardous waste generator regulatory program was originally promulgated in 1980 and has not undergone any significant revision for over 36 years!  That is until October 28, 2016, when the U.S. Environmental Protection Agency (EPA) Administrator signed the final Hazardous Waste Generator Improvements Rule.  The Hazardous Waste Generator Improvements Rule was published in the Federal Register on November 28, 2016, and became effective on May 30, 2017.  As an environmental compliance practitioner for the last 25+ years, this was exciting news – that is, if you consider hazardous waste regulations “exciting”!

• View the rule in the Federal Register

For those states and territories that are not authorized to administer the Resource Conservation Recovery Act (RCRA) program, the rule went into effect on that day.  Authorized states (including California) are required to adopt those provisions that are more stringent than the current RCRA generator regulations in order to retain their authorized status.

What Did the Hazardous Waste Generator Improvements Rule Include?

The final rule includes over 60 changes to the hazardous waste generator regulations that clarify existing requirements, increase flexibility, and improve environmental protection.  These changes also reorganize the regulations to make them easier to follow and make certain technical corrections.  Two key provisions where the EPA is including operational flexibility are:

• Allowing a hazardous waste generator to avoid the increased burden of a higher generator status when generating episodic waste, provided the episodic waste is properly managed; and
• Allowing a very small quantity generator (which replaces a conditionally exempt small quantity generator) to send its hazardous waste to a large quantity generator under control of the same person.

Other Hazardous Waste Generator Improvements Rule requirements include:

• Updating the emergency response and contingency planning provisions for small and large quantity generators to include Local Emergency Planning Committees among those emergency planning organizations with which a generator may make response arrangements, and to require that new and existing large quantity generators submit quick reference guides with the key information when they either develop or update their contingency plans to local responders for easy access during an event.
• Requiring periodic re-notification for small quantity generators every four years (small quantity generators only notify once under the current system).
• Revising the regulations for labeling and marking of containers and tanks to clearly indicate the hazards of the hazardous waste contained inside.
• Clarifying inconsistent guidance on which generator category applies when a generator produces both acute and non-acute hazardous waste in a calendar month.
• Revising the regulations for completing the RCRA biennial report to be consistent with the current instructions distributed with the form.
• Replacing the phrase “conditionally exempt small quantity generator” with the phrase “very small quantity generator” to be consistent with the other two generator categories—small quantity generators and large quantity generators.

What’s Happening in California?

As noted above, California is an “authorized state” and to retain this status, the California Department of Toxic Substance Control is required to adopt those provisions in the Hazardous Waste Generator Improvements Rule that are identified as more stringent than EPA’s previous regulations and are also identified as more stringent than California’s current hazardous waste laws and implementing regulations.  These more stringent requirements are being considered mandatory changes by the California Department of Toxic Substance Control.  The following provisions have been identified by the California Department of Toxic Substance Control as mandatory and will be addressed during the rulemaking process:

• A re-notification requirement for small quantity generators and large quantity generators.
• Additional marking and labeling requirements for containers and tanks.
• Additional pre-transportation marking requirements for containers.
• New large quantity generator closure requirements.
• Increased requirements for satellite accumulation areas.
• New requirements added to the preparedness, prevention, and emergency procedures for small quantity generators and large quantity generators including:
  • Documenting that arrangements with local authorities were made or attempted to be made by the generator; and
  • A quick reference guide that summarizes a large quantity generator’s contingency plan.
• Additional requirements for containers holding ignitable and reactive wastes for large quantity generators.
• New definitions for large quantity generator, small quantity generator and non-acute hazardous waste.

The California Department of Toxic Substance Control may also adopt other optional provisions of the Hazardous Waste Generator Improvements Rule identified as either “less stringent” than, or “no more or less stringent” than EPA’s previous regulations. These provisions are considered optional as the state is not required to adopt them to maintain its authorization to administer California’s hazardous waste program in lieu of RCRA.

The California Department of Toxic Substance Control also intends to reorganize its hazardous waste generator regulations via the rulemaking process to align them with the Hazardous Waste Generator Improvements Rule re-organization. The California Department of Toxic Substance Control believes such changes will also improve the overall clarity of the hazardous waste generator regulations and will ensure the mandatory provisions, which are required to be adopted, may be easily integrated into California’s hazardous waste generator regulations.

The Next Steps for The California Department of Toxic Substance Control

The California Department of Toxic Substance Control intends to adopt portions of EPA’s Hazardous Waste Generator Improvements Rule. To accomplish this, the state will do the following:

• Implement a rulemaking that will re-organize California’s hazardous waste generator regulations to align with the Hazardous Waste Generator Improvements Rule’s re-organization.
• Implement a rulemaking that will adopt regulations from the Hazardous Waste Generator Improvements Rule that are more stringent than California’s hazardous waste generator regulations. These regulations are considered mandatory provisions.
• Propose legislation that aligns statutory provisions with the final rulemaking.
• Establish work groups to evaluate and comment on regulations in the Hazardous Waste Generator Improvements Rule that are clarifications or less stringent than California’s hazardous waste generator regulations. These regulations are considered optional provisions.
• Evaluate information provided by the work groups.
• If necessary, implement a separate rulemaking to adopt optional provisions from the Hazardous Waste Generator Improvements Rule.

February 7, 2018 update: According to the Department of Toxic Substance Control, the state will adopt the more stringent (mandatory) requirements through a streamlined legislative process. The proposed changes are currently being prepared to submit to the Office of Administrative Law for review with an implementation goal of July 1, 2018.  For other discretionary changes to the hazardous waste regulations, the Department of Toxic Substance Control expects to go through the normal rulemaking process (to include public meetings, etc.).

How Can Scout Environmental Help? For our federal clients, Scout Environmental staff can support the updating/revision of your hazardous waste management planning documentation and provide appropriate training to meet the Hazardous Waste Generator Improvements Rule requirements.  For our state clients, we will continue to monitor the rulemaking process and report back on developments.  Stay tuned.

For further inquiries, please contact me at: jason.strayer@scoutenv.com.