10.26.2015 Improvements or Impositions? EPA Proposes Amendments to Hazardous Waste Generator Rules By: Henry R. "Speaker" Pollard, V

EPA recently published proposed significant amendments to the generator portions of its hazardous waste regulations, including a major reorganization and consolidation of the generator requirements into one subpart of the Code of Federal Regulations.  EPA states the changes are “improvements” based on its 30 years of experience with the program under the Resource Conservation and Recovery Act (“RCRA”) and are designed to make it easier for regulated parties to navigate the regulations.

There are a number of substantive changes and clarifications, but, perhaps most fundamentally, the proposed amendments would adjust and clarify three key aspects of the regulations.  The first such change involves monthly accounting for three new distinct broad categories of hazardous waste: (i) “acute hazardous waste,” (ii) “non-acute hazardous waste,” and (iii) residues or media resulting from spill or contamination cleanup.  (Corresponding new definitions of “acute hazardous waste” and “non-acute hazardous waste” are included in the proposed amendments.)  Each level of generator status – “large quantity generator” (“LQG”), “small quantity generator” (“SQG”), and “conditionally exempt small quantity generator” (“CESQG”) – would have its own trigger point for each of these wastes.  As a result, generator category status would more clearly be determined not just by the volume of hazardous waste generated per month, but also by the nature of it.

The second fundamental revision is a clarification of the distinctions between “independent requirements” for different categories of generators as opposed to “conditions for exemptions” from generator requirements.  Independent requirements would be those mandatory duties that must be met within a generator category, whereas conditions for exemptions are the voluntary steps that allow avoidance of certain generator duties that otherwise apply.  Failure to comply with independent requirements subjects the generator to potential penalties and injunctive relief, whereas failure to satisfy a condition for exemption does itself create such liability.  However, a failure to satisfy a condition for exemption that in turn causes a violation of an independent requirement could result in penalties and injunctive relief associated with the resulting independent requirement violation.

Third, EPA plans to replace the long-standing term “conditionally exempt small quantity generator” with “very small quantity generator” (“VSQG”).  This change is largely intended to align nomenclature for this category with that of the other generator categories and does not on its own change any generator duties.

In addition to these basic changes in generator status and terminology, the proposal would strengthen the documentation duties and steps that generators must take to determine whether a solid waste is a hazardous waste.  Among other things, the generator would need to declare in writing that “an accurate determination” was made of the waste’s status.  Recordkeeping requirements are also enhanced to document that review process and justifying information. 

Another proposed change addresses the common problem of episodic increased generation of hazardous waste within a given month that can cause a generator’s status to change, such as from SQG to LQG.  Such planned or unplanned events can create both substantive and procedural headaches for the generator. The proposed amendments would allow the generator to maintain its lower level despite such episodic increase in volume, but this allowance could be exercised only once per year and under specific conditions unless a waiver is obtained for a second event. 

EPA also proposes to revise various other aspects of the regulations, including the following:

  • Flexibility for satellite CESQG (or VSQG) locations to transfer, under certain conditions, hazardous waste generated at that location to a large quantity generator location controlled by the same entity.  This would allow for more efficient, coordinated and better quality management of hazardous waste within the overall organizational structure.
  • Mixtures of hazardous waste and non-hazardous waste by CESQGs (VSQGs).  The amendments would clarify that if a CESQG mixes listed or characteristic hazardous waste with non-hazardous waste, the generator remains eligible for CESQG status (i) if the mixture does not exhibit any of the hazardous waste characteristics (ignitability, corrosivity, reactivity or toxicity) or (ii) if the monthly hazardous waste generation volume limits applicable to CESQGs (or VSQGs) are not exceeded.  If either condition is not met, then the CESQG (or VSQG) becomes a SQG or a LQG depending on the resulting situation.
  • Mixtures of hazardous waste and non-hazardous waste by SQGs and LQGs.  EPA proposes to clarify the link between the SQG and LQG requirements and the so-called “mixture rule” found in the definition of hazardous waste.  Also proposed are changes that clarify how SQG’s may mix non-hazardous waste with hazardous waste and still retain SQG status.
  • Potential for waivers from local fire and emergency response agencies from compliance with 15 meter (50 feet) set-back distance from property boundary for reactive and ignitable hazardous wastes.  This should be particularly useful for generators located in urban areas where such setbacks compromise their ability to accumulate hazardous waste.
  • Expansion and standardization of use of “central accumulation area.”  This new term is proposed as a matter of consistent nomenclature treatment for regular SQG and LQG operations for their primary accumulation areas.


As noted, the spin by EPA on the amendments is that they are “improvements.”  However, it’s too early to tell whether these changes will survive as proposed and ultimately prove to be true improvements or just be altered and additional regulatory impositions.  The public comment period for the proposed amendments ends November 24, 2015.

80 Fed. Reg. 57918-5802 (Sept. 25, 2015).