1. RCRA Hazardous Waste
Program Update
Thad Driscoll October 25, 2017

2. RCRA Hazardous Waste Update
Hazardous Waste Generator Improvements Rule
Developments in Hazardous Secondary Materials Recycling

3. Hazardous Waste Generator Improvements Rule
Problems with 1980 RCRA Rules
Little flexibility for generators of hazardous waste during “episodic events” like tank cleanings.
Stringent “cradle-to-grave” structure a bad fit for very small generators of hazardous waste.
Rules are somewhat disorganized and unclear.

4. Hazardous Waste Generator Improvements Rule
Rules Reorganization
Organization of the rules are much clearer: 40 CFR Part 262.
“Conditionally Exempt Small Quantity Generator” -> “Very Small Quantity Generator.”

5. Hazardous Waste Generator Improvements Rule
Episodic Events
Very Small Quantity Generators and Small Quantity Generators may stay within same category when an unusual situation (“episodic event”) would otherwise bump them to a different generator category.
Notification to agency at least 30 days prior to planned event, or within 72 hours of unplanned event.
One episodic event per year (with an opportunity for a second).
Subject to some additional management requirements.

6. Hazardous Waste Generator Improvements Rule
Hazardous Waste Consolidation
Very Small Quantity Generators may consolidate hazardous waste at a Large Quantity Generator that is under the common control of the same company before sending it to management at RCRA-designated facility.
The LQG facility must submit a notification that it is participating in the activity.

7. Hazardous Waste Generator Improvements Rule
Other More Stringent Requirements
Require SQGs to submit notification to agency every four years starting in 2021 (previously just once).
Revising the labeling and marking requirements to indicate the hazards of hazardous waste.
Document arrangements with LEPCs among emergency planning organizations with which a generator may make response arrangements.
“Quick Reference Guide” in LQG contingency plans.
Hazardous waste determination at the point of generation.

8. Hazardous Waste Generator Improvements Rule
Status of Rule – as of May 2017

9. Hazardous Waste Generator Improvements Rule
Ohio’s Adoption
August 11, 2017: Ohio EPA published Early Stakeholder Outreach on potential incorporation in Ohio’s rules.
September 27, 2017: Preliminary comments were due.
July 1, 2018: Deadline for Ohio to adopt rule.

10. Hazardous Waste Generator Improvements Rule
Takeaways
RCRA best practices manuals should be updated to account for Rule.
Episodic events will be much easier to manage for facilities.
Consider hazardous waste consolidation for facilities that are Very Small Quantity Generators.
Beware of more stringent changes.
Rule is not effective in states until adopted.

11. Developments in HSM Recycling
Background on HSM Recycling
Basic question under RCRA: Is it a hazardous waste?
Is the material a “solid waste,” defined as a “discarded material” not otherwise excluded?”
Certain hazardous secondary materials are excluded when recycled.
Hazardous secondary materials: substances generated as the remainder of industrial processes (e.g., spent materials, byproducts, etc.).

12. Developments in HSM Recycling
2008 “Definition of Solid Waste Rule”
EPA’s first attempt at deregulating HSM.
2008 Rule excluded HSMs from the definition of solid waste in two circumstances:
“Generator-Controlled Exclusion:” if the company that generated the materials controls the reclaiming of those materials.
“Transfer-Based Exclusion:” if the generator transferred the materials to an off-site reclaimer audited to ensure legitimate recycling.

13. Developments in HSM Recycling
2015 “Definition of Solid Waste Rule”
EPA’s second attempt at deregulating HSM.
2015 Rule has several major provisions:
“Generator-Controlled Exclusion:” slightly revised.
“Transfer-Based Exclusion:” replaced with “Verified Recycler Exclusion.”
Definition of “legitimate recycling” codified in the rule:
HSM must provide useful contribution to recycling.
Product must be valuable.
HSM must be managed as a valuable commodity.
Product must be comparable to legitimate product.

14. Developments in HSM Recycling
2015 “Definition of Solid Waste Rule”
Out of date as of October 25, but shows patchwork of state treatment.

15. Developments in HSM Recycling
Ohio’s Adoption
April 12, 2017: Ohio EPA published Early Stakeholder Outreach on potential incorporation of 2008 and 2015 DSW Rules.
Ohio estimated 300 LQGs and 34 permitted TSDFs would be eligible for exclusions.
May 12, 2017: Preliminary comments were due.

16. Developments in HSM Recycling
API v. U.S. EPA Decision
Recent D.C. Circuit decision
Invalidates Verified Recycler Exclusion and reinstates Transfer-Based Exclusion from 2008 DSW Rule.
Upheld emergency preparedness and containment requirement.
Vacates fourth of four “legitimate recycling” factors.
Court holds “mandate” while litigation is resolved.

17. Developments in HSM Recycling
What’s Next?
Resolution of D.C. Circuit decision.
On October 20, parties petitioned for rehearing on various aspects of court’s decision.
Resolution by the states: varied consequences depending on whether state has adopted all or some of the 2008 DSW Rule and 2015 DSW Rule.
E.g., Alabama never adopted 2008 Rule but adopted 2015 Rule. Verified Recycler Exclusion vacated, but Transfer-Based Exclusion not incorporated. Status of existing Verified Recycler Variances in limbo until 2008 DSW Rule adopted.

18. Developments in HSM Recycling
Takeaways
Follow closely if facility is sending HSM pursuant to either the 2008 or 2015 DSW Rules.
Anticipate clarification from USEPA and states soon, either through guidance or rules from the states, particularly as to existing Verified Recycler Variances.
Court decision and reinstated Transfer-Based Exclusion puts burden for ensuring legitimacy of recycling back on generators, rather than reclaimers.

19. Questions?
Thad Driscoll (513)