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EPA’s Proposed Rules Update the Federal Hazardous Waste Generator Program to Provide Real World Flexibility and Efficiencies

davidson_jeffreyIn 1980, the EPA launched perhaps the most comprehensive single environmental program under its jurisdiction in terms of the number of affected US businesses — the Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous waste program. Central to the program was the regulation of generators of hazardous waste where the “cradle to grave” system that RCRA envisioned starts. Given the complete novelty of this comprehensive program at the time these regulations were first developed in 1979, the EPA’s initial generator regulations were based upon informed guesses about how many generators would be affected and how generators actually operated. The EPA was keenly aware that their new program needed to be broad enough to be effective but practical enough to be workable.

The EPA made a key policy decision at the start: it would equate the level of environmental risk and environmental requirements with the monthly generation of hazardous waste by volume. An exception was made for a small class of hazardous wastes, deemed acutely hazardous, but given the unprecedented broad definition of “hazardous waste,” this policy decision was critical. Regulations would be tailored in terms of requirements to those who were large quantity generators (LQG), small quantity generators (SQG) or so small as to be conditionally exempt small quantity generators (CESQG). These distinctions are critical because RCRA’s enforcement sanctions are stiff and compliance by each facility is linked to the category of hazardous waste the generator falls under.

Thirty-five years of experience has proven this early approach to have been a wise and prudent policy decision. The EPA has been learning ever since and has made several changes over the years to improve the flexibility and functionality of the generator program. In 2004, the EPA solicited comments on a wide range of changes and potential improvements to the Subtitle C program, including the changes discussed below. (See 78 FR 21800, 4/22/2004.) On September 25, 2015, the EPA published a new set of proposed rules to further increase the program’s flexibility and greater efficiency. (See 80 FR 57915.) The comment period closes on December 24, 2015. Many changes were proposed, but this note focuses on two particular changes that should substantially improve the ability for businesses to operate reasonably and within the rules.

The first change relates to the ability to avoid a new generator status when in one month hazardous waste generation spikes in an unusual or “episodic” manner. The second change relates to the ability of a CESQG to send its waste to a large quantity generator under the control of the same person for further management. As explained below, both of these circumstances arise regularly in business operations but the current rules create compliance headaches and enforcement exposures that do not enhance environmental protection but rather unnecessarily drive up the costs and details of compliance.

Jeffrey Davidson
Jeffrey Davidson is a partner in the Energy, Environment and Natural Resources practice in the Washington, DC, office of Manatt, Phelps & Phillips. His practice focuses on environmental litigation and enforcement, environmental issues in corporate and real estate transactions, and environmental compliance counseling. Mr. Davidson can be reached at (202) 585-6678 or jdavidson@manatt.com.
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