Environmental Law Section

The section informs its members of local, state and national environmental laws and regulations. The section coordinates annual substantive continuing legal education programs on environmental law and produces a quarterly newsletter.

Chair
TN Dept of Environment &...
312 Rosa L Parks Ave., 2nd floor
Nashville, TN 37243
(615)253-4169
Immediate Past Chair
Chambliss Bahner & Stophel, P....
Liberty Tower, 605 Chestnut Street, Suite 1700
Chattanooga, TN 37450-0019
(423)757-0207
Vice-Chair
Tennessee Department of...
William Snodgrass Building, 312 Rosa Parks Blvd, second floor
Nashville, TN 37243
(615)947-2909

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EnSafe is a global professional services firm providing engineering, environmental, health and safety and technology services to both commercial and government clients. EnSafe was founded in 1980 in Memphis and has grown to over 350 professionals in 28 locations throughout the U.S. from Connecticut to California.

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Update on Hazardous Waste Generator Improvements Rule

The Resource Conservation and Recovery Act (RCRA) was enacted by Congress and signed into law in 1976; the regulations governing hazardous waste management followed and were finalized in 1980. The U.S. Environmental Protection Agency (EPA) has recently updated the hazardous waste rules to afford waste generators additional flexibility in how their hazardous waste is managed.

The U.S. EPA Administrator signed the final Hazardous Waste Generator Improvements Rule on Oct. 28, 2016, and the final rule was published in the Federal Register on Nov. 28, 2016. The final rule incorporates over 60 changes to the hazardous waste generator regulations and is a culmination of an effort that began in 2004 to streamline the regulatory program governing the management of hazardous waste. Although many of the rule changes lessen the stringency of the previous requirements, a number of the changes impose more stringent requirements.

Summary of the Rule

The final rule both changes and reorganizes the regulations governing hazardous waste generators. The revised regulations move the requirements for what was previously defined as a “conditionally exempt small quantity generator” (CESGQ) from 40 Code of Federal Regulations (CFR) Part 261 to the generator standards found in 40 CFR Part 262. In addition to consolidating the requirements into one section of the regulations, the final rule replaces term “CESQG” with the term “very small quantity generator” (VSQG). The regulations did not change the established monthly hazardous waste generation rates for the three generator types: large quantity generator (LQG), small quantity generator (SQG), and VSGQ. Some of the more notable changes enacted by the new rule are summarized below.

  • The rule addresses episodic incidents that change hazardous waste generation rates/generator status. Under the previous rules, if a VSQG or SQG generated more than was allowed in any given month, such generation triggered more stringent generator requirements. The final regulations ease this regulatory burden by allowing a VSQG or SQG to occasionally exceed the established monthly waste generation limits and keep their VSQG or SQG status. In the event a VSQG or SQG experiences such an “episodic generation” event that results in the facility generating more hazardous waste than allowed under their current classification, the facility must provide notification to the regulatory authority and manage the waste as prescribed by the rule. Hazardous waste generated during an episodic event is required to be labeled and managed as “episodic hazardous waste.” Episodic generation events may be planned or unplanned in nature, but relief under the new rule is allowed only once per year.
  • The final rule allows VSQGs to send waste to an LQG. Such transfers are allowed in cases where the VSQG and LQG are under common ownership. This change was implemented in order to allow flexibility and make it easier for companies to ensure hazardous wastes are properly treated and disposed in an environmentally sound manner.
  • The final rule requires tanks and labels to indicate the hazards of their contents. This can be done by a variety of methods, including National Fire Protection Association hazard labels, Department of Transportation labels, and Occupational Safety and Health Administration hazard statements or pictograms.
  • Historically, SQGs only had to notify U.S. EPA one time unless the facility generator status changed. Under the new regulations, SQGs must now submit an updated notification every four years.
  • The final rule allows LQGs to apply for a waiver from the local fire marshal, affording relief from the requirement that containers holding ignitable or reactive hazardous waste be located at least 50 feet from the generator’s property line.
  • The final rule now includes the Local Emergency Planning Committees as an emergency planning organization with which a generator may make response arrangements. In addition, the final rule requires that LQGs prepare and submit a quick reference guide that is supplied to local responders as part of the overall contingency plan. Existing LQGs must develop this guide when updating their existing contingency plan.

Also, an aspect of rule that has resulted in some consternation in the regulated community relates to U.S. EPA’s attempt (in the rule and preamble language) to establish a distinction between what are considered to be “independent requirements” and requirements that they consider to be “conditions for exemption.” The concerning implication being that violations of “conditions for exemptions” (which could include such things as failure to conduct weekly inspections of container areas, or labeling-related violations) could theoretically result in a hazardous waste generator facility being considered an unpermitted hazardous waste storage facility, and trigger associated enforcement actions.

Rule Implementation

The regulations became effective in unauthorized states (i.e., states where the RCRA program is administered by the U.S. EPA) on May 30, 2017. The effective date for states – such as Tennessee – that are authorized by U.S. EPA to administer the RCRA program is upon adoption of the rule by the individual state. Authorized states will be required to adopt the rule provisions that are more stringent than the current RCRA generator regulations in order to retain their authorized status, but they are not required to adopt those provisions that are less stringent than the previous version of the federal rule. Preliminary indications are that the Tennessee Department of Environment and Conservation intends to adopt the entire rule, although the new requirements will likely take one to two years to become effective in Tennessee.


Bry Roberson is an environmental, health and safety consultant and principal at Ensafe.
— Jerry Truitt is the Resource Conservation and Recovery Act (RCRA) Service Area Lead at EnSafe.

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