EPA Issues Rule Amending RCRA Definition of Solid Waste

On May 30, 2018, in response to the U.S. Court of Appeals for the District of Columbia Circuit’s July 2017 and March 2018 orders, the Environmental Protection Agency (EPA) issued a final rule revising the Definition of Solid Waste (DSW) under the Resource Conservation and Recovery Act (RCRA). EPA relied upon Section 553 of the Administrative Procedure Act (APA) to make the rule immediately effective and published the rule without notice and public comment. Under APA Section 553, EPA is authorized to forego notice and comment rulemaking when “for good cause” EPA finds that these procedures are “impracticable, unnecessary or contrary to the public interest.” EPA determined that there is good cause for revising these provisions “because these revisions simply undertake the ministerial task of implementing court orders vacating these rules and reinstating the prior versions.”

The orders issued by the United States Court of Appeals for the District of Columbia Circuit on July 7, 2017 and amended on March 6, 2018: (1) vacated the 2015 verified recycler exclusion for hazardous waste that is recycled off-site (except for certain provisions); (2) reinstated the transfer-based exclusion from the 2008 rule to replace the now-vacated 2015 verified recycler exclusion; (3) upheld the containment and emergency preparedness provisions of the 2015 rule; (4) vacated Factor 4 of the 2015 definition of legitimate recycling in its entirety; and (5) reinstated the 2008 version of Factor 4 to replace the now-vacated 2015 version of Factor 4.

D.C. Circuit Revises Its Decision on the Definition of Solid Waste

On March 6, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit or Court) issued an unsigned per curiam opinion revising its July 2017 decision, which struck down portions of the U.S. Environmental Protection Agency’s (EPA) 2015 Definition of Solid Waste (DSW) Rule. American Petroleum Institute v. EPA, D.C. Cir. App., No. 09-1038. This revision followed the Court’s invitation in its July 2017 decision to have parties provide additional briefing. Both industry and EPA took advantage of the invitation and filed petitions for rehearing.

The Court modified its July 2017 opinion in three ways: (1) severing and affirming EPA’s removal of the spent petroleum catalyst bar from the vacated portions of the Verified Recycler Exclusion; (2) vacating the 2015 Rule’s mandatory Factor 4 of the legitimate recycling determination in its entirety; and (3) reinstating the 2008 Rule version of Factor 4 of the legitimate recycling determination. This blog post focuses on the legitimate recycling determination.

EPA has established a legitimate recycling determination for what constitutes legitimate recycling of hazardous materials and described activities it considers to be illegitimate or sham recycling. 40 C.F.R. §260.43. The legitimate recycling determination consists of four factors:

  1. Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process.
  2. The recycling process must produce a valuable product or intermediate.
  3. The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control.
  4. The product of the recycling process must be comparable to a legitimate product or intermediate.

Based on the Court’s 2017 decision, Factors 1, 2, and 3 were upheld as mandatory factors that must be met by a recycler in order for the recycling process to be considered legitimate recycling. However, the Court vacated Factor 4 only as it applied to sham recycling as defined in 40 C.F.R. § 261.2(g). Thus, after its 2017 decision, Factor 4 still applied to those specific exclusions in which Factor 4 was specifically included, for example, the generator-controlled exclusion.

In its amended 2018 opinion, the Court vacated Factor 4 under all circumstances, even those written into specific exclusions. Now, the 2008 version of Factor 4 is reinstated, which requires only that the factor be “considered” and is not mandatory. Therefore, recyclers of hazardous materials must now meet Factors 1, 2, and 3 of the legitimate recycling determination, and must only consider Factor 4.

EPA Proposes to Add Aerosols to the Universal Waste Regulations

On March 16, 2018, the Environmental Protection Agency (EPA or the Agency) proposed adding hazardous waste aerosol cans to the universal waste program under the federal Resource Conservation and Recovery Act (RCRA) regulations. Comments are due by April 16, 2018. Aerosol cans are widely used for dispensing a broad range of products including paints, solvents, pesticides, food and personal care products, and many others.

Any person who generates a solid waste must determine whether the solid waste qualifies as hazardous waste. The waste may be hazardous either because it is listed as a hazardous waste or because it exhibits one or more of the characteristics of hazardous waste. Aerosol cans are frequently hazardous due to the ignitability characteristic, and in some cases may also contain listed or exhibit other hazardous waste characteristics.

The universal waste rules establish a streamlined hazardous waste management system for widely generated hazardous wastes as a way to encourage environmentally sound collection and proper management of the wastes within the system. Hazardous waste batteries, certain hazardous waste pesticides, mercury-containing equipment, and hazardous waste lamps are already included on the federal list of universal wastes. The universal waste regulations are a set of alternative hazardous waste management standards that operate in lieu of regulation under RCRA Subtitle C.

The streamlined universal waste regulations are expected to ease regulatory burdens on retail stores and others that discard hazardous waste aerosol cans, promote the collection and recycling of these cans, and encourage the development of municipal and commercial programs to reduce the quantity of these wastes going to municipal solid waste landfills or combustors.

A copy of the proposed rule can be found here.

EPA Offers Free Training On the Hazardous Waste Generator Improvements Rule

EPA’s Office of Resource Conservation and Recovery (ORCR) will hold a free full-day workshop on the 2016 Hazardous Waste Generator Improvements Final Rule. The workshop will be held on Wednesday, February 7, 2018, in Arlington, VA, from 8:30 to 3:00 PM. The workshop will cover all the major provisions of the rule, looking at regulatory text and common implementation questions that have come up since the rule was issued in final. During the workshop EPA will answer following questions:

  • Which components of the hazardous waste generator regulatory program were revised?
  • Which gaps in the regulations were addressed in this rule?
  • What flexible options are provided by this rule for hazardous waste generators to manage their hazardous waste in a cost-effective and protective manner?
  • How were the hazardous waste generator regulations reorganized to make them more user-friendly and thus improve their usability by the regulated community?

The workshop will be held at EPA’s Conference Center in the Potomac Yard building in Arlington, VA. Click here to register online.

EPA Announces Settlement with Macy’s over Hazardous Waste Violations

On October 25, 2017, EPA Region 6 announced a settlement with Macy’s Retail Holdings, Inc. (Macy’s) over violations of hazardous waste regulations, the Resource Conservation and Recovery Act (RCRA). In addition to correcting violations, Macy’s will also develop a program with the capacity to train 400 retailers in Oklahoma and Texas, and conduct third-party audits at 11 of its largest facilities within Texas, Oklahoma, Louisiana and New Mexico, among other required actions. The company will also pay a $375,000 civil penalty within 30 days of the effective date of the settlement, and must comply with all other requirements within one year.

EPA found Macy’s had violated RCRA for several periods during 2012-2015. During these times, each Macy’s store identified in the settlement generated thousands of pounds of hazardous waste to qualify as a small-quantity generator, but failed to notify EPA and state authorities. Macy’s also failed to meet the conditions for small-quantity generator status and did not complete appropriate manifests. Overall, Macy’s generated more than 269,168 pounds of hazardous waste from 2012-2015 for the 44 locations identified in the settlement.

As part of the settlement, Macy’s will develop a program to train an estimated 400 retailers in Oklahoma and Texas on how to comply with hazardous waste requirements. Live training events held in Oklahoma and Texas and will also be recorded to create a webinar version that can be shared to Macy’s locations nationwide. After completing the 11 third-party audits, Macy’s will share results with all of its other facilities (more than 620 locations outside EPA Region 6) with instructions to review the issues and address noncompliance. Macy’s will also promote the training webinars and recorded sessions to appropriate personnel nationwide.

Retailers Face Hazardous Waste Disposal Challenges in the Wake of Hurricane Harvey

In the wake of natural disasters, like Hurricane Harvey, many are quick to assess and analyze the effects of flooding and damage to Superfund toxic waste sites and from hazardous waste spills– understandably so. Many other sites, such as retail stores, were damaged by the extensive flooding caused by the hurricane.  Now many retailers and local businesses face challenges in disposing of their hazardous waste.  While Texas did provide some relief from some environmental rules to aide recovery efforts, federal hazardous waste disposal rules still apply.

Stores that were damaged by floodwaters or lost power for an extended period of time may have to dispose of numerous hazardous waste products, including household cleaners, pesticides, and certain beauty products. Similarly, medications and refrigerated pharmaceuticals—like insulin—may no longer be usable and must be properly disposed as hazardous waste.

EPA has not announced that it is relaxing waste management regulations because of the situation in Houston.  Therefore, the requirements for disposal of hazardous waste according to the Resource Conservation and Recovery Act (RCRA) are still in effect.  This means that if unuseable products qualify as hazardous waste, retailers can’t just throw out these materials in the trash. The store’s size and the volume of hazardous waste it handles will determine its status as a “generator” under RCRA.  Depending on the store’s status as a generator, certain containment, recordkeeping, and disposal requirements and restrictions apply. In some cases, that means cleanup efforts for contaminated retail sites may take a long time, and cost retailers a lot of money in hazardous waste disposal fees.

Some retailers are required to have emergency preparedness plans and provisions depending on their hazardous waste generator size.  It is prudent for those plans to address possible flooding as a result of naturals disasters, such as hurricanes.  For those retailers who are not required to conduct emergency preparedness planning under RCRA, it is imperative to do so as sound business practice.

The Court of Appeals for the D.C. Circuit Invalidates Two Key Provisions of the 2015 Amendments to the Definition of Solid Waste

On July 7, 2017, the U.S. Court of Appeals for the D.C. Circuit issued a decision invalidating two key provisions of the 2015 amendments to the definition of solid waste under the Resource Conservation and Recovery Act (RCRA). American Petroleum Institute v. EPA (D.C. Cir. No. 09-1038). The Court invalidated Factor 4 of the legitimacy determination need for recycling hazardous materials. The Court also found the Verified Recycler Exclusion was unreasonable and reinstated the old Transfer Based Exclusion.

There are four legitimacy factors that must be met to determine when a material is being legitimately recycled, and therefore the material might be excluded from the definition of solid waste. The Court struck down Factor 4, which stated that for recycling to be legitimate, the product of the recycling process must be comparable to a legitimate product or intermediate, that is the material must have comparable hazardous properties as the final product being made with the recycled material. The Court concluded that this factor imposed “draconian” procedures for demonstrating the absence of significant environmental risk. The Court vacated Factor 4, insofar as it applies to all hazardous material under 40 CFR § 261.2(g), but it did not strike down Factor 4 as it applies to specific exclusions, such as the generator-controlled exclusion at 40 CFR § 261.4(a)(23), because the Petitioners did not challenge Factor 4 as it applies to those exclusions.

The Court also struck down the Verified Recycler Exclusion and reinstated the Transfer Based Exclusion, an earlier exclusion that the Agency issued in 2008, except it kept two provisions of the Verified Recycler Exclusion: (1) the requirement that the generator meet certain emergency preparedness standards, and (2) the expanded requirement for the materials to be properly contained.

EPA Finalizes Hazardous Waste Improvements Rule

The Resource Conservation and Recovery Act (RCRA) regulates the generation, treatment, storage, and disposal of hazardous waste. The requirements under RCRA and regulations implementing RCRA can apply to companies that generate hazardous waste during the manufacture of certain products, or, can apply to companies and/or retailers that are ultimately discarding unused, expired, recalled, or damaged products that are considered hazardous upon disposal.

Recent developments under RCRA have the potential to affect both product manufacturers as well as retailers. On October 28, 2016, the EPA Administrator signed the final Hazardous Waste Generator Improvements Rule (Rule), and it was published in the Federal Register on November 28, 2016. This Rule attempts to reorganize the RCRA regulations to make them more user-friendly, address gaps in the current regulations, provide greater flexibility for hazardous waste generators to manage their hazardous waste, and provide the regulated community a better understanding of how the hazardous waste generator regulatory program works.

Some changes to the final Rule include:

  • Replacing the phrase “conditionally exempt small quantity generator” with the phrase “very small quantity generator” (VSQG).
  • Allowing VSQGs to send hazardous waste to a large quantity generator (LQG) that is under the control of the same person and consolidate it there before sending it on to management at a RCRA-designated facility, provided certain conditions are met.
  • Allowing a VSQG or a small quantity generator (SQG) to maintain its existing generator category in the case of an episodic event in which the VSQG or SQG generates a quantity of hazardous waste in a calendar month that would otherwise bump the generator into a more stringent generator regulatory category. Under this provision, generators that satisfy the listed conditions do not have to comply with the more stringent generator standards.
  • Requiring periodic re-notification for SQGs every four years starting in 2021.
  • Revising the regulations for labeling and marking of containers and tanks.
  • The regulations were also reorganized and renumbered.

The regulation of hazardous waste generation by the retail sector has historically presented a challenge because retailers are not “traditional” hazardous waste generators. EPA highlighted the new flexibility for episodic generators of hazardous waste and the consolidation of VSQG waste at LQGs facilities as two approaches for addressing a number of issues facing the retail sector in complying with RCRA. Indeed, once the new Rule becomes effective, if a VSQG retailer must recall and discard certain products that are classified as hazardous waste when discarded, the retailer can send the hazardous waste to a LQG facility that is considered the same “person,” i.e., the manufacturing facility that owns and operates the retail facility. This allows the consolidation and decision-making process of how to discard the hazardous waste at one (or a few) centralized facilities instead of at multiple (sometimes hundreds) of retail facilities.

There were specific provisions that EPA chose not to include in its final Rule, based on comments received. Some of these include:

  • EPA is not requiring generators to document all determinations that a waste is not a hazardous waste and maintain that documentation in their records.
  • EPA is not requiring that generators label containers and tanks of hazardous waste with a description of the contents of the container. A generator must include the words “Hazardous Waste,” a description of the hazards of the container, and the date accumulation started.
  • EPA is extending the time frame for an episodic event from the proposed 45 days to 60 days.

The rule will be effective at the federal level six months after promulgation. For those states and territories that are not authorized for the RCRA program (Alaska, Iowa, and the Indian Nations, and the territories Puerto Rico, American Samoa, N. Mariana, and US Virgin Islands), the rule will go into effect on that day. Authorized states will be required to adopt those provisions that are more stringent than the current RCRA generator regulations in order to retain their authorized status. However, these provisions of the rule will not become effective in states authorized for the RCRA program until states have adopted the rule and become authorized for the new provisions. Authorized states will not be required to adopt those provisions of the rule that are less stringent or equal to the current hazardous waste regulations.