Updated: RCRA Corrections Rule is Worth a Look for Generators

Posted on 12/6/2023 by Lion Technology Inc.

Update: December 6, 2023

After receiving adverse comments from concerned stakeholders, US EPA has withdrawn eight amendments to the RCRA hazardous waste regulations that were included in a “technical corrections” Rule this year, one day before the Rule was set to take effect. 

Amendments from the Direct Final Rule withdrawn by EPA on December 6 include revisions discussed below concerning accumulation limits for Small Quantity Generators (SQGs), hazardous waste determinations and codes, and RCRA recordkeeping. 

Posted August 9, 2023 (Revised 12/6/23)

Hazardous waste generators can submit comments until October 10, 2023, on a sizable direct final rule making several “technical corrections” to the RCRA hazardous waste regulations.

Many of the corrections affect provisions added or revised as part of three previous RCRA rulemakings: 

  • Generator Improvements Rule 
  • Hazardous Waste Pharmaceuticals Rule 
  • Definition of Solid Waste Rule (2018)

The rule also includes corrections and revisions to parts of the regulations unrelated to the rulemakings listed above. The direct final rule will take effect on December 7, 2023 unless EPA receives comments opposing the rule before the October 10 submission deadline. 

The rule includes at least two changes with the potential to affect the way some hazardous waste generators manage their compliance responsibilities. 

Accumulation Limits for Small Quantity Generators

Update 12/06/2023: The revision to the on-site accumulation limit for acute hazardous waste at SQG facilities in 40 CFR 262.16(b)(1) was withdrawn on December 6, 2023, before taking effect.

Under RCRA, small quantity generators (SQGs) must abide by a 6,000 kg limit on total hazardous waste accumulated on site at any one time. This rule adds a second on-site accumulation limit of 1 kilogram for acute hazardous waste to the limits for SQGs. The accumulation limit provisions for small quantity generators in 40 CFR 262.16(b)(1) will now read: 

(1) Accumulation limit. The quantity of acute hazardous waste accumulated on site never exceeds 1 kilogram (2.2 pounds) and the quantity of non-acute hazardous waste accumulated on site never exceeds 6,000 kilograms (13,200 pounds);

88 FR 152, page 54089. 08/09/2023.

Until this rule, (b)(1) has included the 6,000 kg total accumulation limit only, with no mention of acute hazardous waste.  

(Revised 12/06/23)

Why the Stricter Limit for SQGs?

Update 12/06/2023: The revision to the on-site accumulation limit for acute hazardous waste at SQG facilities in 40 CFR 262.16(b)(1) was withdrawn on December 6, 2023, before taking effect.

To explain this change, EPA takes us back to 1986—the year the agency created a category for "conditionally exempt small quantity generator" or CESQG, now referred to as very small quantity generator or VSQG. Before the 1986 rule, the RCRA regulations included only two generator categories—small and large. When they added the CESQG category, EPA did not address accumulation of acute hazardous waste.

EPA continues:

"The EPA clarified the distinctions between the three generator categories in the 2016 Generator Improvements rule and stated that a small quantity generator can only generate up to one kilogram of acute hazardous waste in a calendar month, but it was not clear in the new language whether there is a limit on the amount of acute hazardous waste a small quantity generator can accumulate on site at any one time.

Consistent with what has been historically allowed for generators of small amounts of acute hazardous waste, the EPA is revising 262.16(b)(1) to clarify that the acute hazardous waste accumulation limit for a small quantity generator is one kilogram." 

88 FR 152, page 54089. 08/09/2023.

(Revised 12/06/23)

Industry stakeholders, including generators of all sizes, can submit public comments on the rule until October 10, 2023 under Docket ID # EPA-HQ-OLEM-2023-0081. If EPA does not receive adverse comments on these changes, the direct final rule takes effect on December 7.

RCRA hazardous waste determinations and recordkeeping 

Update 12/06/2023: The revision related to waste codes and recordkeeping discussed below was withdrawn on December 6, 2023, before taking effect. 

Normally when characterizing a hazardous waste, generators identify all applicable waste codes (D-codes and F, K, U, and P codes). Generators are required to keep detailed waste ID records, including recording waste codes. 

If and when this rule takes effect, generators will no longer be required to include “redundant” characteristic codes (D-codes) as part of the site’s waste ID records.  

The revised text for 40 CFR 262.11(d), Hazardous waste determination and recordkeeping, looks like this:

(d) The person then must also determine whether the waste exhibits one or more hazardous characteristics as identified in subpart C of 40 CFR part 261 by following the procedures in paragraph (d)(1) or (2) of this section, or a combination of both. Where a waste is both listed and exhibits a characteristic, the listed waste code is sufficient, provided that the listed waste code addresses the constituents and/or properties that cause the waste to exhibit the characteristic. Otherwise, the waste codes must be identified for all applicable listings and characteristics." 

88 FR 152, page 54109. 08/09/2023.

(Revised 12/06/23)

Hazardous waste generators subject to RCRA regulation as large, small, or very small quantity generators should review this direct final rule in full to ensure ongoing compliance with Federal law.

Unless EPA receives adverse comments on these revisions (Update 12/6/23: EPA did receive adverse comments), the Direct Final Rule will take effect as written on December 7, 2023.

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