The cradle-to-grave scheme is at the heart of the Resource Conservation and Recovery Act. RCRA, after first defining what a “hazardous waste” is and requiring permits for facilities accepting these materials, then requires a manifest to accompany the movement of the waste from the point of generation – through transportation – and then finally to the “destination facility.” This manifest, completed by the generator, links a defined hazardous waste with a facility permitted to manage it.

On June 30, 2018, the cradle-to-grave scheme, like newspapers, books, and board games, will go digital. On this day, EPA’s new E-Manifest Rule will become effective. Here are twelve things you should know about this rule:

  1. E-manifest rule will take effect in all states, whether the state is authorized to run the RCRA program or not. Authorized states must amend their rules to adopt the program.
  2. The rule will cover not only the well-known federal RCRA hazardous wastes (i.e., the characteristic “D” codes and the listed “F,””K”, “P”, and “U” codes) but also state-only hazardous wastes (such as waste oil in Massachusetts) and PCBs.
  3. Paper manifests, at least for a time, may still be used, but at a price. Here are the current estimated costs for different types of manifest under the program: 
  4. Only the receiving facility pays the fee to the government not the generator or transporter. Undoubtedly, however, many of these receiving facilities may be looking to pass on the costs to their customers.
  5. EPA intends to institute a phase out of paper manifests after three years of operation. During this phase-out period, a generator may still use a paper manifest but the receiving facility will be expected to transfer the data in digital format to EPA.
  6. The receiving facility must pay the fee even if it rejects a waste shipment back to the generator. If the rejected shipment is sent instead to an alternate TSD, that facility pays the fee.
  7. EPA plans to revise the fee schedule every 2 years, which will include higher fees for paper manifests if electronic manifest use does not reach 75% in 4 years. The new fee schedules will not require rulemaking.
  8. EPA’s goal is to eliminate paper manifests after 5 years.
  9. EPA estimates the program will result in $66 million in costs savings, though most of the savings appear to result from decreased burdens on state and federal governments. See 83 Fed. Reg. at 446.
  10. Generators, at least for a time, will still need to prepare Biennial reports, though these are one of the burdens the rule is intended to eliminate.
  11. Users will register for the E-manifest system at RCRAinfo. This system is not up yet.
  12. Rule replaces 6-page manifest form with 5-page form. New top copy goes to e-manifest system instead of destination state. Moreover, copy 2 of current form, which goes to destination state, also eliminated because both destination state and generator state can get copy from electronic database. But 5-page form not yet finalized.

So now even the RCRA Manifest has entered the digital age. Stay tuned for further updates on this rule.

Continuing on our discussion of the electronic manifest (e-Manifest) system, EPA Administrator, Scott Pruitt, signed the e-Manifest User Fee Final Rule on December 20, 2017.  EPA expects the final rule to be published in the Federal Register in the coming weeks.  The pre-publication version of the final rule is attached here.

Under the final rule, user fees are only being assessed on the hazardous waste and state-only regulated waste receiving facilities.  The “billable event” is the submission of the final manifest copy signed by the receiving facilities.  In assessing the user fee on the receiving facilities only, EPA stated that it was simplifying the billing process and assuming that the receiving facilities will pass on the fees through to the generators by service agreements.

The users will pay different fees depending on the type of manifest submitted.  Given that the user fee is based on cost recovery and that paper manifests are expected to cost more to process, paper manifest fees will be considerably higher than electronic manifests.  EPA is projecting that an electronic manifest will cost $4/manifest, while a mailed copy of a paper manifest will cost $20/manifest.  Image uploads are projected to cost $13/manifest and data file uploads $7/manifest.  These fees are estimates only, based on projections of project costs.  Final user fees will be forthcoming when EPA has a final budget and contracts in place for the system.  EPA will also be publishing revised user fee schedules at two-year intervals.  Based on these estimated numbers, there is a significant incentive for receiving facilities to submit manifests electronically.

The final rule is effective June 30, 2018, which coincides with the launch of the e-Manifest system.  EPA will begin collecting fees on that date.   Receiving facilities will receive an invoice each month and will be directed to the Department of Treasury’s Pay.gov website to submit electronic payments.

We will continue to follow and provide updates from EPA on the e-Manifest system.

 

 

 

A North Carolina appeals court has ruled that a company may be an “operator” of a hazardous waste disposal facility under RCRA Subtitle C based solely on post-closure involvement at the site.

The case, WASCO LLC v. N.C. Dep’t of Env’t & Nat. Res., Div. of Waste Mgmt., No. COA16-414, 2017 BL 125671 (N.C. Ct. App. Apr. 18, 2017), involved a former textile manufacturing facility. The site became contaminated after perchloroethylene (PCE), a dry-cleaning solvent leaked, from underground storage tanks. At the time the leaks occurred the site was owned by a division of Winston Mills, Inc. Five years after the leaks, Winston Mills entered into an agreement with the North Carolina Department of Environment and Natural Resource that detailed a plan to close the site, and the site was closed three years later. Defendant-petitioner WASCO LLC first became involved at the site years later, when it acquired a company that co-guaranteed indemnification for environmental liabilities at the site.   It subsequently took some action to affirmatively remediate the site and applied for a RCRA Part A permit.

By 2007, however, North Carolina discovered that hazardous waste was migrating offsite and contaminating groundwater. At that time WASCO disclaimed responsibility for further remediation and asserted that all previous involvement had been on a voluntary basis. It could not be an operator, it argued, because it did not become involved with the site until after it was closed and it is impossible to operate a closed site. WASCO asserted that it was not an “operator” under the language of the North Carolina Solid Waste Management Act, which defines the term as “any person, including the owner, who is principally engaged in, and is in charge of, the actual operation, supervision, and maintenance of a solid waste management facility and includes the person in charge of a shift or periods of operation during any part of the day.” N.C. Gen. Stat. § 130A-290(a)(21).

The court rejected WASCO’s arguments. It held that WASCO must be an operator despite its late involvement because the site was not designated as a disposal facility until after the site was closed. Accepting WASCO’s interpretation that operators are only entities responsible for pre-closure activities would, at least in this case, mean that the facility would have no operators at all. It also found that the trial court properly looked not only to the definition of operator in the North Carolina statute, but also at the broader definition in CERCLA, in addition to cases and guidance related to CERCLA and RCRA. These sources, it reasoned, are hazardous waste specific, while North Carolina’s more detailed definition applies to all solid waste management facilities.

Although the belated designation of the site as a hazardous waste disposal facility on account of the unintentional release of PCE distinguishes it from typical RCRA Subtitle C landfills, it is far from clear that this distinction was dispositive for the court. More likely it was guided by the principle of broad liability under RCRA, particularly when hazardous waste is involved.

Nine trade associations, including the American Chemistry Council, the American Petroleum Institute, and the American Forest & Paper Association, have filed a Petition for Review challenging the EPA’s Hazardous Waste Generator Improvements Rule.  The rule was developed by the Obama Administration and was not finalized until after the election, on November 28, 2016.  It is not scheduled to become effective anywhere in the country until May 30, 2017, at the earliest.

The primary purpose of the rule was to reorganize existing regulations applicable to hazardous waste generators to make them more user-friendly.  The rule also clarifies ambiguities in the existing regulations.  It will, however, have significant impacts on some hazardous waste generators.  For more information on substance of the Hazardous Waste Generator Improvements Rule, see our earlier post here.

The Petition for Review does not state which portions of the rule the associations seek to eliminate, nor does it articulate the substantive basis for their challenge. The petitioners did, however, submit comments on the proposed rule, which shed light on which requirements they find most concerning and the arguments they are likely to make before the Court.  In those comments, they listed as the most objectionable part of the rule EPA’s position that any violation of a condition for exemption subjects the generator to all of the applicable rules for non-exempt facilities.  As a result, a generator that runs afoul of a condition for exemption could as a result be subject to penalties for not complying with dozens of requirements that apply to the next higher level of generator, or even those that apply only to treatment, storage and disposal facilities.

The petitioners are also likely to focus their challenge on the portion of the rule that for the first time formally incorporates the requirement that hazardous waste determinations be made at the point of generation, before any dilution, mixing or other alteration of the waste occurs.

We will be following this petition and providing updates on Environmental Law Next as the challenge progresses.

On November 28, 2016, the EPA published its Hazardous Waste Generator Improvements Rule, finalizing a much-needed update to the 30-year old Resource Conservation and Recovery Act (RCRA) hazardous waste generator regulations.  The Rule includes over 60 changes to the hazardous waste generator regulations to make them easier to understand, which will presumably increase compliance, and provide greater flexibility in how hazardous waste is managed. The Rule will affect more than 500,000 industrial entities in virtually every industrial sector that generate hazardous waste regulated under the RCRA Subtitle C regulations.

Of the over 60 changes, the following are to be noted:

  • ­Reorganization. The Rule reorganizes and consolidates most all of the generator regulatory program into 40 CFR Part 262.
  • Clarifications.  EPA is confirming and clarifying some program requirements that were never formally implemented, for example:
    • A generator’s hazardous waste determination must be accurate and made at its point of generation before any dilution, mixing or alteration.  However, the Rule does not require documentation of non-hazardous waste determinations.
    • Generators can use “generator knowledge” to determine whether a listed and/or characteristic hazardous waste has been generated.
    • A generator can only be in one category for a calendar month.  Definitions of “acute hazardous waste” and “non-acute hazardous waste” have been added to aid in determining a regulatory category.
    • Small quantity generators (SQG) and large quantity generators (LQG) must identify and mark RCRA waste codes on containers prior to sending hazardous waste off-site.
  • Very Small Quantity Generators (VSQG). Previously known as “conditionally exempt small quantity generators,” a VSQG can now send their hazardous waste to LQGs under the control of the same person to allow consolidation before sending it on to management at a RCRA-designated facility.
  • Episodic Generation. The Rule addresses “episodic generation” of hazardous waste, which can occur during a planned event (i.e., periodic maintenance such as tank cleanouts) or unplanned event (i.e. production upset conditions, spill, acts of nature).  In these cases, a VSQG and SQG can maintain their existing generator category and avoid the increased requirements of a higher generator status, provided there is only one event per calendar year with the ability to petition for a second event, and certain notification requirements and duration limits are met.
  • Labeling.  Containers and tank labels must be marked with the words “Hazardous Waste” and indicate the hazards of the contents of the containers using any of several established methods, such as DOT hazard communication, OSHA hazard statement or pictogram, NFPA chemical hazard label or RCRA characteristic.  A description of the actual contents of the containers and tanks is not being required.
  • 50-foot Property Line Requirement. LQGs can now apply for a waiver from the authority having jurisdiction (AHJ) over the fire code when they are unable to meet the 50-foot property line requirement for the accumulation of ignitable or reactive waste.
  • Notification.  LQGs must notify EPA or the authorized state no later than 30 days prior to closing their facility and within 90 days after closing their facility to confirm that it has complied with closure performance standards.  SQGs must re-notify EPA starting in 2021 and every four years thereafter.

These and other changes are discussed in more detail in an EPA webinar that can be accessed here.

The Rule is effective May 30, 2017 for Iowa, Alaska, the territories and tribal lands.  The rest of the states, which are currently authorized to run the RCRA program in their states, will have to incorporate the more stringent provisions from the Rule by July 1, 2018 (or by July 1, 2019 if legislative changes are needed) to maintain their authorized status and can choose to incorporate the less or equally stringent provisions at any time.