On August 31, 2015, the Administrator of the U.S. Environmental Protection Agency (“EPA” or the “Agency”) signed a proposed rule designed to “improve” the long-standing requirements for generators of hazardous wastes under the Resource Conservation and Recovery Act (“RCRA”), by addressing purported “gaps” in the regulations, providing additional flexibility, clarifying the rules, and making them more user-friendly.  While some of the proposed changes may, in fact, have the desired effects, others appear to introduce more confusion and/or impose substantial new burdens for little or no environmental benefit.  If finalized, the proposed amendments could significantly affect tens of thousands of hazardous waste generators across virtually all U.S. industrial sectors.

Some of the key provisions of the proposal are summarized and discussed in detail below.  Public comments on the proposal will be accepted until 60 days after the proposal is published in the Federal Register. 

New Recordkeeping Requirements for Hazardous and Non-Hazardous Waste Determinations

Under the existing RCRA regulations, persons who generate solid wastes must determine if such wastes are hazardous (e.g., if they are excluded from regulation, if they are listed as hazardous wastes, or if they exhibit a characteristic of hazardous waste).  Both large quantity generators of hazardous wastes (“LQGs”) and small quantity generators (“SQGs”) are further required to keep records of their hazardous waste determinations for at least three years after the wastes are sent to onsite or offsite treatment, storage, or disposal.  The proposal would change these requirements in several ways, including the following:

• The LQGs and SQGs would have to keep records not only for wastes determined to be hazardous, but also for wastes determined to be non-hazardous.  EPA claims in the preamble that “[t]he focus of th[e] provision is on solid wastes that have the potential to be hazardous wastes” and that the Agency is “not interested in … solid wastes that clearly have no potential to be hazardous, such as food waste, restroom waste, or paper products.”  However, the proposed rule itself is not limited in any such way, and generators relying on EPA’s assurances would be at risk if EPA or a state agency disagreed with their view that particular wastes were “clearly” non-hazardous and therefore did not require a record of the non-hazardous waste determinations.  The burdens of maintaining such records for all non-hazardous wastes could be staggering.

• The records would have to “comprise the generator’s knowledge of the waste” – arguably meaning everything the generator knows about the waste (or at least everything the generator might want to reference in any investigation or enforcement proceeding) – including “but not limited to” a long laundry list of items, some of which are difficult to imagine (e.g., records supporting the determination of whether the waste is a listed hazardous waste, a demonstration of the “validity and relevance” of any test results, and records “consulted” to determine how the waste was generated (as if the generator needs to “determine” how its wastes are generated and needs to consult records to do so)).

• The LQGs and SQGs would have to keep records supporting not only their determinations of hazardousness or non-hazardousness, but also their determinations in the first instance of when materials are “solid wastes, as defined in 40 CFR 261.2.”  Although the proposal is not clear on this point, it appears that records would not be necessary for materials determined not to be solid wastes.  However, if a generator is acknowledging that a material is a solid waste, it is unclear why records supporting the classification as waste would be useful.  Moreover, EPA does not explain what types of records would be required for a “waste” classification.  The proposed rule is also circular and/or nonsensical, inasmuch as the RCRA regulations specify that the referenced definition of solid waste in 40 CFR 261.2 “applies only to wastes that are also hazardous.”  Thus, in order to determine if a material is a waste under Section 261.2, it would first be necessary to determine if the material is hazardous, and if the material is not hazardous, it could not be a solid waste under Section 261.2 and would not be subject to the proposed requirement to keep records of non-hazardous determinations.  In this way, the requirement to keep records of determinations that solid wastes are non-hazardous might never come into play.         

• The LQGs and SQGs would have to make hazard determinations not only when a waste is first generated, but also “at any time in the course of its management that it has, or may have, changed its properties as a result of exposure to the environment or other factors that may change the properties of the waste.”  This requirement could raise difficult questions about when hazard determinations must be repeated, and ultimately could require multiple hazardous waste determination records for many wastes.     

• The hazard determinations made by solid waste generators would have to be “accurate.”  Of course, it has always been the case that an inaccurate determination that a waste is non-hazardous when it actually is hazardous would lead to regulatory violations that would be enforceable by EPA (e.g., failure to manifest the waste offsite).  The primary impetus for adding the “accuracy” requirement appears to be to pile on additional regulatory fines in these cases.  The new requirement also raises the specter that a generator could be found in violation of RCRA for determining that a waste is hazardous when it is not, despite the absence of any potential adverse environmental consequences.  Indeed, the Agency states at one point that “identifying all possible RCRA waste [codes, including some that may not actually apply] does not satisfy the requirement to make an accurate waste determination.”          

• Although the proposed rule would not impose recordkeeping requirements on conditional exempt small quantity generators (“CESQGs”) (renamed very small quantity generators or “VSQGs” under the proposal), EPA asks for comments in the preamble about extending the recordkeeping requirements to such generators.  By the Agency’s own (probably very conservative) estimate, the number of affected generators under such an extension would be between 293,000 and 470,000. 

• Although the proposed rule would not change the existing record retention time of three years, EPA requests comment in the preamble about requiring the records to be kept until closure of the facility, even if the relevant wastes had not been generated or managed there for decades, and even if the statute of limitations for any potential violations had long passed.

EPA casually dismisses as “minimal” the costs of documenting all hazardous and non-hazardous waste determinations, claiming for example that most generators generate only a few solid wastes that do not vary significantly over time, and have “sophisticated protocols and testing procedures in place to make a hazardous waste determination.”  Perhaps recognizing the dubious nature of these claims, particularly in some industries, the Agency requests comments on whether specific industries are unlikely to generate significant amounts of hazardous wastes, or whether specific categories of wastes are unlikely to be hazardous, such that the documentation requirement could be modified, or even eliminated, for them.  

Changes to Generator Categories for Acutely Hazardous Wastes

Under the existing regulations, generators are classified as CESQGs if they generate less than 100 kg of hazardous wastes in a calendar month.  However, if they generate more than 1 kg of acutely hazardous wastes in a month, or ever accumulate more than 1 kg of such wastes, those acutely hazardous wastes become subject to full regulation (i.e., the rules for LQG wastes).

The proposed rule subtly, but significantly, changes these rules by classifying all persons who generate more than 1 kg of acutely hazardous wastes in a month as LQGs, even if the total amount of hazardous wastes that they generate is less than 100 kg/month.  The significance is that these persons would not just have to manage their acutely hazardous wastes pursuant to the LQG rules, as under the existing regulations, but they would also have to manage their non-acutely hazardous wastes as LQG wastes, as well (e.g., by manifesting the wastes to a permitted hazardous waste facility using a hazardous waste transporter).  EPA barely acknowledges the change, other than to make the rather baffling claim that generators “would not gain a significant economic advantage” by managing non-acutely hazardous wastes as VSQG wastes if they must manage acutely hazardous wastes as LQG wastes.  The Agency concludes that “a generator can only have one generator category in a calendar month.”  However, the proposal elsewhere would maintain the existing rule for persons who accumulate more than 1 kg of acutely hazardous wastes (but otherwise qualify as VSQGs), subjecting only the acutely hazardous wastes, not other wastes, to the LQG requirements.

Alternative Standards for Episodic Generators

Under the existing regulations, the status of a generator as an LQG, SQG, or CESQG may vary from month to month, depending upon the amount of hazardous wastes generated during each month.  As a result, the generator and his/her wastes may be subject to different regulatory requirements over time.  This is true even if the generator consistently qualifies as a CESQG or SQG, but due to an “episodic” event (e.g., planned facility cleanout or unplanned/accidental spill), temporarily generates an unusually large amount of hazardous wastes.

The proposed rule would enable VSQGs and SQGs to maintain their “usual” generator status during such episodic events, subject to certain conditions, including the following:

• The VSQG or SQG would be limited to one episodic event per calendar year, unless it petitions for and obtains approval from EPA for one additional event per year.  The proposal specifies that a generator could not manage hazardous wastes from the additional event pursuant to the new rule, until written approval is received from EPA.  This would appear to limit the additional episodic event to a planned event, since wastes from unplanned events would have to be managed before approval from EPA could be sought and obtained.  However, the preamble to the rule says that a petition for an additional episodic event could be submitted up to 24 hours after an unplanned event.

• The VSQG or SQG would have to notify EPA at least 30 days before a planned episodic event (in writing), or within 24 hours of an unplanned episodic event (by phone or email, followed up in writing).  The notification would have to include the start date of the event, the expected end date of the event (no later than 45 days after the start), the reason(s) for the event, the types and quantities of wastes expected to be generated, and a facility contact with 24-hour accessibility.  EPA indicates at one point that a notification would also have to be provided to the local fire department.

• The VSQG or SQG would have to have or obtain an EPA identification number.

• The VSQG or SQG would have to accumulate the wastes from the episodic event in a container or tank marked with the words “Episodic Hazardous Waste,” words identifying the contents, an indication of the relevant hazards, and the date on which the episodic event started.  (For tanks, some of this information could instead be logged or recorded in other ways.)  The container/tank would have to be in good condition and compatible with the wastes.  Containers would have to be kept closed (except when adding or removing waste), and, in the case of SQGs, would have to meet the general requirements for hazardous waste containers.  Tanks would have to have equipment and/or procedures in place to prevent overflow and would have to be inspected daily, or, in the case of SQGs, would have to meet the general requirements for hazardous waste tanks.

• The VSQG or SQG would have to manifest its wastes to a facility that is RCRA permitted or otherwise authorized to manage hazardous wastes, within 45 days from the start of the episodic event (unless the generator petitions for and obtains approval from EPA – before expiration of the normal 45-days – for an extension of up to 30 days).  Normally, SQGs would have to send their wastes to a RCRA facility anyway, but would have 180 days or 270 days to do so.  VSQGs are generally allowed to send their wastes to certain other types of facilities, and are not subject to any time limitations.  (The proposed rule would also allow SQGs, but not VSQGs, to treat the episodic wastes on-site in exempt units, such as an elementary neutralization unit.  EPA requests comments in the proposal on whether VSQGs should be granted similar permission.)

• The VSQG or SQG would have to keep records for three years identifying the start and end dates of the episodic event, the reason(s) for the event, the types and quantities of wastes generated, the manner in which the wastes were managed, and the names of the transporter(s) and the RCRA facility receiving the wastes.

The proposed rule may provide a measure of regulatory relief to episodic generators.  However, the conditions and limitations may be so numerous and onerous that the rule may be of only limited value.  Indeed, in some instances, a generator might prefer to operate under the current rules, which would appear to be allowed (although the proposal is not entirely clear on this point).          

New Rules for Consolidation of CESQG/VSQG Wastes at LQG Sites

Under the existing rules, CESQGs must “ensure delivery” of their wastes to a treatment, storage, or disposal facility that meets certain criteria (e.g., a facility that is permitted as a hazardous waste facility, authorized to manage solid waste (subject to certain conditions), or engaged in recycling).  EPA in the past has declined to opine on whether CESQG wastes can be “taken to an intermediate location not identified [in the CESQG rule] for purposes such as consolidation and storage prior to delivery to its final destination.”  See Letter from Michael Shapiro, Director, Office of Solid Waste, EPA, to Peter J. Wojdyla, Pima County (AZ) Risk Management (May 1, 1996) (RCRA Online #14031).  However, under a straightforward reading of the rule, an intermediate location would be allowed as long as the CESQG “ensured” that the waste was ultimately “delivered” to one of the specified locations. 

Notwithstanding the above, EPA in the preamble to the proposed rule asserts – without acknowledging, much less justifying, its change in position – that “[t]he existing CESQG regulations do not allow a generator to send its hazardous waste off site to another generator, unless the receiving generator has a storage permit or is otherwise one of the  types of facilities cited [in the rule].”  This mischaracterization of the existing law is particularly troublesome because it arguably changes the existing rule/interpretation immediately upon publication of the proposed rule in the Federal Register (i.e., before a final rule is issued).  

Having created a problem that was not there before, the Agency then sets about to solve that problem with a new layer of regulation.  Under the proposed rule, a VSQG would have to send its wastes directly to one of the specified types of facilities or to an LQG under the “control” of the same person (although the Agency also requests comments in the preamble on the possibility of allowing transfers to other LQGs under certain circumstances).  If the wastes are sent to an LQG, the containers would have to be marked with the words “Very Small Quantity Generator Hazardous Waste,” words that identify the contents, an indication of the hazards present, and applicable hazardous waste codes.  The LQG receiving the wastes would have to notify EPA; identify the name, address, contact person and telephone number for each VSQG (updated within 30 days of any change); keep detailed records of each shipment received from each VSQG; and comply with the LQG requirements for the VSQG wastes essentially as if it had generated the wastes itself (although such wastes would not be eligible for management under the satellite accumulation rule and would have to be specially identified on biennial reporting forms).

Mandatory Re-Notification by LQGs and SQGs

Under the existing regulations, LQGs and SQGs are required to notify EPA of their hazardous waste management activities in order to obtain an EPA identification number (needed, for example, to manifest wastes off site).  LQGs are required to re-submit the notification form every two years, as part of their biennial report.  However, SQGs are not required by federal law to update their notification forms.

The proposal would formally require all LQGs and SQGs to re-notify every two years (at or near the time that LQGs are required to submit biennial reports), in order to ensure that EPA has current information.  The Agency also requests comments on alternative schedules for re-notifications, including requiring updates only when certain information (e.g., facility ownership or generator status) changes.

Enhanced Labeling/Marking of Containers and Tanks

Under the existing regulations, LQGs and SQGs must label their hazardous waste containers and tanks with the words “Hazardous Waste.”  Containers must also be marked with the accumulation start date, and must bear additional markings prior to shipment offsite (e.g., the name, address, and EPA identification of the generator, and the manifest tracking number).   

The proposed rules would require that additional information be included on container labels.  In particular, the containers would have to be marked with words identifying the contents, as well as an indication of the hazards present.  In addition, if/when the containers are shipped offsite, they would have to be marked with the relevant hazardous waste codes.  Because of the difficulty of requiring similar marking of tanks (especially in instances where the contents may change over time), the proposed rule would allow alternative means of recording the contents, hazards, and accumulation start dates for such units (e.g., inventory logs, monitoring equipment, or other records).           

New Recordkeeping Requirements for Container/Tank Inspections by LQGs and SQGs

Under the existing regulations, LQGs and SQGs must inspect container storage areas at least weekly to ensure that the containers are in good condition.  However, the generators are not required to record the results of such inspections.  LQGs and SQGs that accumulate hazardous waste in tanks are currently required to inspect the tanks daily (unless the tanks have secondary containment and leak detection systems in place, in which case weekly inspections are allowed).  LQGs must record the results of these tank inspections, but SQGs are not.   

In the preamble to the proposed rule, EPA requests comments on the possibility of requiring both LQGs and SQGs to keep records of their container and tank inspections, and to maintain such records for three years.  The Agency also requests comments on whether such recordkeeping requirements might be limited, based on factors such as how much hazardous waste is being stored, and whether secondary containment systems are in place to control any leaks.   

Waiver from 50-Foot Buffer Zone Requirement for LQG Ignitable/Reactive Wastes

Under the existing regulations, LQGs are required to store any containers of ignitable or reactive wastes at least 50 feet from the facility property boundary.  However, EPA acknowledges in the preamble to the proposal that “there are some cases where it may not be physically possible to meet this standard” (e.g., if the site is less than 100 feet wide).

In order to address this issue, the proposal would allow LQGs to apply for a site-specific written waiver from their local fire departments.  EPA also requests comment on whether it should establish conditions on the waivers, such as limits on the quantities of ignitable/reactive wastes on site, or technical requirements such as fire-suppression equipment or fire-resistant walls.   

Modifications to the Requirements for Satellite Accumulation Areas

Under the existing regulations, LQGs and SQGs may accumulate up to 55 gallons of hazardous wastes or one quart of acutely hazardous wastes in containers “at or near any point of generation where wastes initially accumulate which is under the control of the operator of the process generating the waste,” as long as they (i) mark the containers with the words “Hazardous Waste” or other words identifying the contents, and (ii) comply with certain limited container requirements (e.g., that the containers be in good condition, compatible with the wastes, and remain closed except when wastes are being added or removed).

The proposed rules would modify the requirements for these “satellite accumulation areas” in various ways, including the following:

• Prohibiting incompatible wastes from being placed into the same container;

• Allowing containers in satellite areas (but not in central accumulation areas) to be vented if/when necessary to ensure proper operation of related equipment or to prevent dangerous situations (e.g., the build-up of pressure);

• Requiring containers to be marked with the words “Hazardous Waste,” words that identify the contents, and an indication of the hazards present;

• Providing an alternative limit of 1 kg (as opposed to one quart) for acutely hazardous wastes, and indicating that a satellite area may contain up to the maximum quantities of both acutely hazardous wastes and non-acutely hazardous wastes (although this latter proposed change may have been inadvertent);

• Clarifying that when one of the quantity limits is exceeded, the excess must be moved within 3 calendar days, rather than 3 business/working days;

• Clarifying that wastes in satellite accumulation areas may be sent directly to an offsite RCRA treatment, storage, or disposal facility, rather than to an onsite central accumulation area; and

• Providing examples (in the preamble) of when areas will be deemed “under the control of the operator,” such as when an area is locked and the operator has the key. 

As discussed in more detail further below, EPA also requests comments on whether LQG employee training requirements should be extended to employees handling hazardous wastes in satellite accumulation areas. 

New Closure Requirements for Central Accumulation Units

Under the current regulations, generators are generally exempt from closure requirements when they cease handling hazardous wastes in accumulation units, except that LQGs must close their central accumulation units (i.e., accumulation units that are not satellite accumulation areas) in accordance with certain general performance standards, and unit-specific standards in the case of tanks, drip pads, or containment buildings. 

Under the proposed rule, EPA would impose substantial new requirements for closure of LQG central accumulation units.  First, the LQG would have to notify EPA at least 30 days prior to closure of the unit.  Second, if the unit was a container storage area, it would be subject to new closure requirements, along the lines of those that apply to tanks, drip pads, and containment buildings.  In particular, the LQG would generally have to remove and properly manage all hazardous wastes and residues thereof, and decontaminate or properly remove/dispose all contaminated equipment, structures, and soils.  If the unit cannot be closed in such a manner, the unit must instead be closed as if it were a landfill (including post-closure care and financial assurances).  Finally, the LQG would have to notify EPA within 90 days after closure that it has either clean-closed the unit or closed it as a landfill.

EPA also requests comments on further changes to the generator closure requirements, such as requiring LQGs to not only notify after closure, but also to certify that the unit was clean-closed or had to be closed as a landfill.  Moreover, the Agency asks whether SQGs should be required to notify within 60 days after closure of a central accumulation unit.  At one point, EPA also seems to suggest that these closure requirements might apply to satellite accumulation areas, in addition to central accumulation areas.   

Modifications to Training Requirements for Generator Personnel

The current regulations require LQGs to train all personnel involved with handling hazardous wastes to “perform their duties in a way that ensures the facility’s compliance with [applicable] requirements.”  The training must include certain elements, be updated annually, and be recorded.   SQGs, in contrast, must merely “ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures, relevant to their responsibilities during normal facility operations and emergencies.”

The proposed rule would clarify that online training is allowed, as well as classroom instruction or on-the-job training.  EPA also requests comments on whether it should identify particular types of LQG personnel that require training, such as those who complete/sign hazardous waste manifests, manage hazardous wastes in central accumulation areas, maintain hazardous waste inventories, conduct inspections of accumulation areas, or plan for or respond to emergencies involving hazardous wastes.  The Agency also asks for comment on whether it should reverse existing guidance exempting LQG personnel involved in managing hazardous wastes in satellite accumulation areas from the training requirements, saying that it “is of the opinion that such personnel have a similar need to know the risks associated with hazardous wastes as personnel working in central accumulation areas.” 

Changes to Requirements for Making Arrangements with First Responders

Under the existing regulations, LQGs and SQGs must “attempt” to make arrangements with various first responders (e.g., local police, fire departments, State/local emergency response teams, and local hospitals), “as appropriate” based on the wastes handled onsite and the potential need for the services of such organizations.  In the case of LQGs, the resulting arrangements must be described in the contingency plan for the facility.

The proposed rule would require LQGs and SQGs not only to “attempt” to make arrangements, but to actually make arrangements with the Local Emergency Planning Committee (“LEPC”) or with other relevant responders if (a) there is no LEPC, (b) the LEPC fails to respond, or (c) the LEPC determines that it is not the appropriate organization to make the arrangements.  Moreover, it would require both LQGs and SQGs to maintain records of the arrangements, including a certified letter or other documentation that confirms such arrangements “actively” exist.  EPA requests comments on whether it should mandate periodic updates of the arrangements.  It also asks whether waivers should be allowed for large facilities that have 24-hour onsite emergency response capabilities of their own (e.g., airports or military bases).          

New Requirements for LQG Contingency Plans

Under the current regulations, LQGs are required to prepare and maintain a contingency plan with certain mandatory elements.  The plan must be “immediately amended” if key items change (e.g., if there are changes in the materials/operations, emergency equipment, or emergency coordinators).  Copies of the plan, and all plan revisions, must be sent to first responders.

The proposed rule would change the contingency plan requirements in several ways, including the following:

• LQG sites that first become subject to the contingency plan requirement more than 6 months after the final rule is published in the Federal Register would have to develop and submit an executive summary of the contingency plan to the LEPC (or other first responders) with certain specified elements.  EPA “recommends” that LQGs that already have contingency plans also prepare/submit an executive summary, and requests comments on whether they should be required to do so.  The Agency also asks for comments on whether SQGs should be required to submit an executive summary, noting that even though they are not required to have contingency plans under RCRA, they frequently are required to have such plans under other regulatory regimes. 

• LQGs would no longer have to include personal information about their emergency coordinator(s), such as their home addresses and phone numbers.  The proposed rule would require only the names and “emergency telephone numbers” of the coordinators.  For sites where an emergency coordinator is always on duty “because it operates 24/7/365,” the plan could simply “list the staff position[s]” and an emergency telephone number that can be guaranteed to be answered 24/7/365.  This proposal is a bit ambiguous, but if it means that a facility could simply list the relevant employee titles, rather than the names, it could be helpful to facilities with high turnover (e.g., retail stores). 

• The proposed rule would clarify that contingency plans would only have to address those areas within an LQG facility where hazardous wastes are generated and/or managed.

• EPA requests comments on whether contingency plans should continue to require information about alternative evacuation routes, or whether facilities should instead be allowed to post such information and hold annual evacuation training and drills.  The Agency also asks whether contingency plans should discuss shelter-in-place as an alternative to evacuation.

• EPA requests comments on the possibility of electronic submission of contingency plans to LEPCs and/or local first responders.       

Assertion that Even Minor Lapses in Compliance Turn Generators into Illegal Unpermitted Hazardous Waste Storage Facilities

In the preamble to the proposed rule, EPA states that many of the provisions governing hazardous waste generators are structured as parts of “conditional exemptions,” and that this status has important implications for enforcement.  For example, LQGs that accumulate hazardous wastes in tanks and containers for less than 90 days are exempt from the requirements to obtain a permit and to comply with the standards for permitted facilities, if the generator complies with various provisions relating to marking/labeling of the unit, personnel training, contingency planning, etc. 

EPA states that “an entity cannot be penalized for not complying with a condition for [such an] exemption.  Instead, if the entity does not comply with the conditions of exemption, that exemption no longer applies and the entity becomes subject to full regulation.”  This means that if, for example, an LQG falls slightly short in its compliance program (e.g., loses one of its employee training records or fails to include one required element in a contingency plan), it may “los[e] its conditional status and become[ ] the operator of a non-exempt storage facility subject to [permitting] requirements.”  Indeed, EPA would not be able to simply bring an enforcement action for the minor lapses.  Rather, the only way for the Agency to enforce in these cases would be to allege that the site was a full-fledged hazardous waste storage facility operating without a hazardous waste permit and in noncompliance with the standards for permitted facilities – possibly including the requirements for financial assurance and border-to-border facility cleanup under the RCRA corrective action program. 

In essence, EPA would either have to forgo enforcement or pursue the “nuclear option” of pursuing the case as arguably the most serious type of violation possible under RCRA.  Although EPA in practice might not seek penalties as if the LQG had been in flagrant violation of the permitting requirement and related standards, the Agency nowhere indicates if/how it would show restraint and, in any event, it could not ensure such restraint by state enforcement officials or citizen groups bringing enforcement actions under RCRA Section 7002.           

Miscellaneous Proposed Changes

The proposed rule includes other changes to the hazardous waste generator rules that are so numerous that they cannot all be addressed here.  Some of these miscellaneous changes are relevant only to a small subset of generators, such as academic laboratories, wood preservation facilities, or generators who accumulate hazardous wastes in specially designed containment buildings.  Other changes in the proposed rule may be more generally applicable, but in most instances are expected to have little impact (although they be of more significance to some generators).  The proposal also includes conforming changes to the rules for hazardous waste transporters and treatment, storage, or disposal facilities, which are not discussed here.  Finally, the proposal includes countless modifications that EPA characterizes as editorial or technical in nature, but some of these may ultimately prove to be more substantive.

Effect of the Rule in the States

EPA claims that the rule, when finalized, will not take effect in most states until the states act to adopt the rule as a matter of state law, because the rule would not be issued under the 1984 Hazardous and Solid Waste Amendments (“HSWA”), which provides for an immediate effective date in all states for certain rules.  The Agency also asserts that the states will not be required to adopt significant portions of the rule, because those parts are less stringent than current law, and state rules may be more stringent. 

EPA’s conclusions on both of these points are questionable.  The Agency has overlooked the fact that the original rules for SQGs were promulgated pursuant to a provision in HSWA that directed EPA to regulate generators of 100 to 1000 kg per month of hazardous wastes.  Thus, the proposed rules for SQGs (and perhaps even some of the rules for other generator categories) arguably would also be issued pursuant to HSWA.  Moreover, EPA may have mischaracterized some aspects of the proposed rule as less stringent.  The Agency claims, for example, that the proposed rule related to consolidation of VSQG wastes at LQG facilities is less stringent, even though as discussed above, the existing law is that such consolidation is allowed without any requirements (as long as the wastes are ultimately delivered to an authorized facility).       

EPA appears to make a similar error in its discussion of interstate shipments under the proposed rule for consolidation of VSQG wastes at LQG facilities.  According to the Agency, “if a CESQG wants to transfer its waste through states that have not adopted the proposed provision, these transit states may … impose state requirements on the shipment while it is being transported through the state.”  However, the Hazardous Material Transportation Act (“HMTA”) generally preempts state laws for transport of hazardous materials (including hazardous wastes) that differ from the federal rules.  Indeed, EPA has long acknowledged that transit states cannot require, for example, that hazardous waste manifests accompany shipments that would not require a manifest under federal law.