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New Rule: Hazardous Waste Generator

Monday, November 23, 2015

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In an effort to make hazardous waste regulations more user-friendly, the federal Environmental Protection Agency has proposed an update to its Resource Conservation and Recovery Act (RCRA).

Named the Hazardous Waste Generator Improvements Rule, the proposed rule seeks to update the regulatory program originally declared in 1980.

The EPA published the rule in the Federal Register on Sept. 25. Comments are invited through Dec. 24.

istock.com/dem10
© iStock.com / dem10

The proposed Hazardous Waste Generator Improvements Rule seeks to update the regulatory program originally declared in 1980.

The agency’s intent is to make the rules easier to understand, facilitate compliance, provide more flexibility in hazardous waste management while still protecting human health and the environment, reorganize the regulations to make them more user-friendly, make technical corrections, and close important gaps in the regulations.

In terms of improving flexibility, two key provisions EPA is focusing on are:

  • Allowing a hazardous waste generator to avoid increased burden of a higher generator status when generating episodic waste provided the episodic waste is properly managed; and
  • Allowing a conditionally exempt small quantity generator (CESQG) to send its hazardous waste to a large quantity generator (LQG) under control of the same person.

The rule will also enhance the safety of employees and the general public by improving hazardous waste risk communication and ensuring emergency management requirements are updated.

“These rules provide businesses with certainty and the flexibility they need to successfully operate in today’s marketplace,” Mathy Stanislaus, assistant administrator of EPA’s Office of Solid Waste and Emergency Response, said in the agency’s news release on the proposed changes this summer.

“The proposals will improve the safety and health of our communities by providing clear, flexible, and protective hazardous waste management standards.”

Hazardous Waste and Industrial Painting

These proposed rule changes are said to have resulted from EPA's experience in implementing and evaluating the existing program over the last 30-plus years, as well as in response to concerns and issues identified by the states and regulated community.

iStock.com/jonas unruh
© iStock.com / jonas unruh

Generators in the industrial painting industry include manufacturers, contractors/fabricators, and structure and facility owners.

According to Alison Kaelin, ABKaelin, LLC, several key changes to the rule may affect industrial painting:

  • Consolidating the hazardous waste generator regulations in part 262 of Title 40 of the Code of Federal Regulations (40 CFR);
  • Hazard determinations and characteristic waste determinations;
  • Preparedness and prevention and contingency planning;
  • Labels and risk communication for large and small quantity generators; and
  • Episodic events and maintaining their “generator status.”

Generators in the industrial painting industry include manufacturers, contractors/fabricators, and structure and facility owners. It is important to note that EPA considers both owners and contractors who create hazardous wastes to be co-generators.

Also, generators of hazardous waste are regulated based on the amount of hazardous waste they generate in a calendar month, not the size of their business or facility, according to the EPA.

Reorganization of Generator Regulations

Generator regulations, which are now located in various portions of the hazardous waste standards, would be consolidated in to Section 40 CFR 262, Standards Applicable to Hazardous Waste Generators in order to facilitate usability.

Alison Kaelin
Alison Kaelin

Consolidating regulations that appear in various portions of the hazardous waste standards into one place should improve usability.

Waste Determinations

In terms of waste determination, Kaelin calls out four areas that contain significant changes or clarifications which will impact the industrial painting industry. 

Collection of Waste Samples at the Point of Generation

The new regulations will require that representative samples of potential characteristic wastes—such as paint debris—be collected at the point of generation.

“Point of generation” is defined as the area where the waste first becomes a solid waste, i.e., will no longer be reused or recycled. 

For spent abrasives or paint wastes, the point of generation would be the floor of the containment or work area. For recycled abrasives it would at the discharge port of the recycler. This would seem to prohibit the collection of samples after containerization in waste containers.

istock.com/Mikolett
© iStock.com / Mikolett

The new regulations will require that representative samples of potential characteristic wastes—such as paint debris—be collected at the point of generation.

EPA also clarified that solvent wastes (listed or ignitable) are considered hazardous wastes when their intended use has ceased and they begin to be accumulated or stored for disposal, reuse or reclamation.

This would seem to apply to solvents after use for line or equipment cleaning or to paint once it is beyond its pot or useful life, according to Kaelin.

Requirements for Ongoing Evaluation If Properties of Waste May Change

EPA has confirmed that wastes initially found to be non-hazardous may require periodic or ongoing classification in the event that properties may change. 

EPA stated:

... a generator’s waste characterization obligations may continue beyond the determination made at the initial point of generation. In the case of a non-hazardous waste that may, at some point in the course of its management, exhibit a hazardous waste characteristic, there is an ongoing responsibility to monitor and reassess its regulatory status if changes occur that may cause the waste to become hazardous. Thus, the generator must monitor the waste for potential changes if there is reason to believe that the waste may physically or chemically change during management in a way that might cause the waste, or a portion of the waste, to become hazardous.

This provision could have huge consequences on industrial painting, Kaelin says.

Historically, an initial determination of paint and abrasive waste is typically performed, and all future waste is treated based upon these results.

Some possible areas where the EPA could conclude that the generator may have ongoing hazard evaluation responsibilities might include:

  • If the concentration of lead and other hazardous metals in the existing coatings varies across a structure or facility, would this require that resulting waste streams need more frequent TCLP testing? Would this also require more detailed assessments of structures or facilities for hazardous coatings content?
  • Since abrasives contain varying amounts of trace hazardous constituents, different batches are used, and may be combined with the coating above, would toxicity characteristic leaching procedure (TCLP) testing be required after various batches?
  • If the abrasive is pretreated with a material designed to render the waste non-hazardous, would the generator need to periodically repeat TCLP testing after each new batch of material?

A final potential issue relates to EPA’s conclusion that the generator should also notify any subsequent handlers of the waste, making them aware they should also monitor the waste for changes. 

iStock.com/volkansengor
© iStock.com / volkansengor

A final potential issue relates to EPA’s conclusion that the generator should also notify any subsequent handlers of the waste, making them aware they should also monitor the waste for changes.

Would this apply to waste classified as non-hazardous resulting from the use of steel or iron abrasives? If the owner or contractor knows that the stabilization provided is not permanent, do they need to test it or notify the landfill that its characteristics may change?

Application of Generator Knowledge

Use of generator knowledge has always been permitted in determining if a waste is non-hazardous or hazardous. However, the new rule clarifies how and what is acceptable as generator knowledge. It indicates that when a test method is specified in the regulation—such as the TCLP test for hazardous coatings materials—it is definitive evidence of the hazard determination.

Alternately, generators must use knowledge of the materials, processes, by-products, Safety Data Sheets, testing, etc. It notes that testing other than TCLP is not definitive.

Documentation

EPA is requiring small quantity generators (SQGs) and LQGs to maintain documentation of hazardous determinations—both positive and negative—for three years. This includes any test results, waste analyses or other determinations made.

Preparedness and Prevention and Contingency Planning

New LQGs, as of the effective date of the rule, are required to submit an executive summary of their contingency plans in addition to the base requirement of submitting the full-length contingency plan to emergency management authorities. 

The executive summary would need to include:

  • Types and amounts of hazardous waste;
  • Maps of site and of surrounding area;
  • Location of water supply;
  • Identification of on-site notification systems (e.g., telephones, PA system); and
  • Emergency contact(s).

According to Kaelin, this seems to suggest two things relative to bridge or other coatings projects, where removal of hazardous coatings such as lead, chromium, arsenic or cadmium might generate hazardous waste over 2,000 pounds of waste/month.

These projects are LQGs and would be required to send summaries of contingency plans to EPA as well as to submit the contingency plans to local emergency management authorities.

Labeling/Risk Communication

The revision requires use of updated OSHA Hazardous Communication Standard labels and DOT labels in addition to hazardous waste labels.

istock.com/ArtboyAnimation
© iStock.com / ArtboyAnimation
The revision requires use of updated OSHA Hazardous Communication Standard labels and DOT labels in addition to hazardous waste labels.

Proposed improvements in risk communication for workers, waste handlers, and emergency responders include requirements for container labels to indicate the hazards of the contents of the containers and use “plain English.”

EPA uses the terms ”toxic paint wastes” and “spent ignitable solvents” as examples of plain English.

Episodic Generation of Hazardous Waste

Small quantity generators and conditionally exempt generators typically manage smaller quantities of waste and therefore are subject to less-stringent management standards than their “large quantity” counterparts.

However, a one-time event like a paint removal project or an on-site spill can result in more than 1,000 kg of waste generated in a particular month, resulting in reclassification as a LQG, Kaelin says.

The new regulation would allow generators to maintain their existing category provided they comply with a streamlined set of requirements that allows an event once per year.

This would require that EPA or state be notified in advance and that the event did not exceed 45 days, including shipment of waste off-site (an additional 30-day extension is possible).

This could be a positive impact for many owners and DOTs who are normally CESQGs and SQGs, but whose maintenance coatings activities may change generator status.

Comments Period

EPA has received a number of requests to extend the comment period beyond the original Nov. 24 date; in response, it is providing a 30-day extension.

Kaelin recommends that owners, contractors and others consider providing comments and seek clarification on issues related to coatings industry.

Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2012-0121, to the Federal eRulemaking Portal: www.regulations.gov.

Editor’s note: Thank you to Alison Kaelin for her writing contributions to this article. See Kaelin’s coverage of this topic in a recent Regulatory Update webinar.

   

Tagged categories: Coatings; Environmental Protection Agency (EPA); Hazardous waste; Health & Safety; North America; Regulations; Solvents

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