Know Your RCRA Hazardous Waste Generator Category

September 24, 2019

Knowing what a person or business must report to the Environmental Protection Agency (EPA) when producing  and disposing of solid wastes and particularly, hazardous wastes, can seem to be an overwhelming and difficult challenge. This is at least in part determined by how much hazardous waste is generated by a specific site.  Fortunately, a business should be able to determine its reporting requirements fairly easily once it knows whether its waste is hazardous, and how much of the waste it generates.

The Resource Conservation and Recovery Act (RCRA), and associated federal regulations, established the basic hazardous waste management requirements for those persons or businesses who produce hazardous wastes. As a reminder, Hazardous Waste is a term defined under RCRA at 42 U.S.C. § 6903(5)[1], and further defined by EPA regulations under 40 C.F.R. Part 261[2], with identifying characteristics specified in Subpart C.  In general, a solid waste is a hazardous waste if it generally exhibits any of the characteristics of ignitability, corrosivity, reactivity, or toxicity, or is otherwise listed in 40 CFR Part 261, Subpart D (Lists of Hazardous Wastes). Subpart B of this Part provides the criteria utilized by the EPA for identifying the characteristics of hazardous waste and for listing hazardous waste. Finally, Subpart E also provides for certain exclusions and exemptions that could be relevant to your wastes.

These hazardous waste definitions are particularly important for Generators[3], or those businesses or manufacturers who generate hazardous wastes. These Generators must identify, track, and maintain records of hazardous waste generation and accumulation, in order to determine which regulatory requirements they must follow in order to stay in compliance with these federal laws and regulations. To be in compliance with the reporting requirements of these regulations, generator status is further divided into three categories based upon the quantity of hazardous waste generated per calendar month.

Generators are categorized by the rate at which they generate hazardous wastes, and naturally, the reporting requirements become more rigorous as more hazardous waste is generated. The least stringent reporting requirements are assigned to what’s referred to as “Very Small Quantity Generators,” which is defined as less than or equal to 100 kilograms per month (kg/month) of non-acute hazardous waste, and less than or equal to 1 kg/month of acute hazardous waste generated. The second category, “Small Quantity Generators,” are those that generate hazardous wastes in the range of greater than 100 and less than 1,000 kg/month of non-acute hazardous wastes, and 1 kg or less per month of acute. The third category, “Large Quantity Generators,” includes those generators with quantities greater than the first two categories, specifically either greater than 1,000 kg/month of non-acute hazardous wastes or greater than 1 kg/month of acute hazardous wastes.

Now you may be asking, what is the difference between an acute and non-acute hazardous waste? These definitions are again provided in the regulation, which states that “Acute hazardous waste means hazardous wastes that meet the listing criteria in § 261.11(a)(2) and therefore are either listed in § 261.31 of this chapter with the assigned hazard code of (H) or are listed in § 261.33(e) of this chapter.”[4] Non-acute hazardous waste, then, means all hazardous wastes that are not acute hazardous waste, as defined in this section.[5] One additional point to note is that, while many hazardous wastes are identified by their characteristics or are specifically listed, those wastes that are not specifically listed must be “reasonably detected by generators of solid waste through their knowledge of their waste”[6] based on their characteristics.

While the quantities of generated wastes that divide these categories are clear-cut, the subsequent requirements imposed by each of these categories can be less clear. Fortunately, the EPA provides a table that summarizes[7] the requirements for each class of hazardous waste generator, with the caveat that “this is not an exhaustive list of all of the requirements for generators and should be used as just a guide.” This table also provides information and links to the code requirements for such additional points as: on-site accumulation permissible quantities (without obtaining a permit); time limits for storage; personnel training requirements; emergency plans; and reporting and record keeping requirements, to name a few.

Finally, many states have chosen to follow the federal regulations regarding hazardous waste generator categories. But, to make things somewhat more confusing, some states have enacted regulations different from those promulgated by the federal government. Fortunately, the EPA has provided a state-by-state summary[8] of those that have chosen to essentially follow the federal regulations or have otherwise enacted regulations different from federal regulations. In the latter case, EPA has provided direct web-links to the states’ web pages with their specific regulations. A copy of the U.S. map with Hazardous Waste Generator categories broken down is provided below.

In summary, if you or your business are generators of hazardous wastes in reportable quantities, it is critical to familiarize yourself with the federal (and potentially the state) regulations for the various generator categories. This is particularly true if the quantity of materials your facility generates is variable and subject to change from month-to-month. If, for example, your facilities production is increased in certain months for whatever reason, and this increases your quantity of waste generated in that month to one of the higher generator categories, the reporting requirements would be that of the higher (i.e. more stringent) reporting category for that particular month. Failing to report at the appropriate category can open your business to potential RCRA violations, which could have a number of adverse ramifications, including financial penalties and settlements, administrative compliance orders, substantial civil penalties, and even criminal penalties for knowing violations or falsifying material statements.[9] Therefore, it is a best practice to know the requirements and keep the appropriate and required records on the front end in order to avoid any regulatory headaches later. For more complex business operations regarding hazardous wastes, it could certainly be helpful to work with an environmental consultant and legal counsel.

 

Hazardous Waste Generator Regulatory Summary Table

Requirement Very Small Quantity Generators Small Quantity Generators Large Quantity Generators
Quantity Limits
The amount of hazardous waste generated per month determines how a generator is categorized and what regulations must be complied with.
≤100 kg/month, and
≤1 kg/month of acute hazardous waste, and
≤100 kg/month of acute spill residue or soil(§ 260.10)
>100 and <1,000 kg/month

(§ 260.10)

≥1,000 kg/month, or
>1 kg/month of acute hazardous waste, or
>100 kg/month of acute spill residue or soil(§ 260.10)
EPA ID Number
Number that identifies generators by site.
Not required Required

(§ 262.18)

Required

(§ 262.18)

On-Site Accumulation Quantity
Determine amount of hazardous waste generators are allowed to “accumulate” on site without a permit.
≤1,000 kg or
≤1 kg acute hazardous waste or
≤100 kg of acute spill residue or soil(§262.14(a)(3) and (4))
≤6,000 kg

(§ 262.16(b)(1))

No limit
Accumulation Time Limits
Determine amount of time hazardous waste is allowed to accumulate on site.
None ≤180 days or
≤270 days (if transporting greater than 200 miles)(§ 262.16(b)-(d))
≤90 days

(§ 262.17(a))

Accumulation Requirements
Manage hazardous waste in compliance with certain technical standards.
None Basic requirements with technical standards for containers, tanks, drip pads or containment buildings

(§ 262.16(b)(2)-(5))

Full compliance for management of containers, tanks, drip pads or containment buildings

(§ 262.17(a)(1)-(4))

Personnel Training
Ensure appropriate personnel complete classroom or on-the-job training to become familiar with proper hazardous waste management and emergency procedures for the wastes handled at the facility.
Not required Basic training required

(§ 262.16(b)(9)(iii))

Required

(§ 262.17(a)(7))

Contingency Plan and Emergency Procedures
Develop procedures to follow during an unplanned major event.
Not required Basic planning required

(§ 262.16(b)(9))

Full plan required

(Part 262 subpart M
from § 262.17(a)(6))

Preparedness and Prevention
Develop procedures to follow in the event of an emergency.
Not required Required

(§ 262.16(b)(8)-(9))

Required

(Part 262 subpart M
from § 262.17(a)(6))

Air Emissions
Control hazardous air emissions from tanks and containers.
Not required Not required Required

(Part 265 subparts AA, BB and CC from § 262.17(a)(1) and (2))

Land Disposal Restrictions
Meet standards for placing on the land and associated requirements for certifications, notifications, and waste analysis plans.
Not required Required

(Part 268 from

§ 262.16(b)(7))

Required

(Part 268 from

§ 262.17(a)(9))

Manifest
Tracking hazardous waste shipments using the multiple-copy manifest – required by the Department of Transportation (DOT) and EPA.
Not required Required

(Part 262 subpart B)

Required

(Part 262 subpart B)

Waste Minimization
Certify steps taken to reduce or eliminate the generation of hazardous waste.
None Good faith effort required

(§ 262.27)

Program in place required

(§ 262.27)

Pre-Transport Requirements
Package and label hazardous waste for shipment off-site to a RCRA facility for treatment, storage, or disposal.
Only if required by the DOT or the state Required

(§§ 262.30-262.33)

Required

(§§ 262.30-262.33)

Biennial Report
Report data from off-site shipments of waste during the previous calendar year.
Not required Not required Required

(§ 262.41)

Exception and Additional Reporting
Report if any required copies of signed manifests are not received back. Provide information on quantities and disposition of wastes upon request.
Not required Required

(§§ 262.42(b) & 262.43)

Required

(§§ 262.42 & 262.43)

Recordkeeping
Maintain records of waste testing, manifestsbiennial reports and exception reports.
Not required Required (except biennial reports)

(§ 262.11(f) &

§ 262.40(a) and (d))

Required

(§ 262.11(f) & § 262.40)

Facility Type
Send off-site shipments to appropriate facilities for management.
Facilities noted in

(§ 262.14(a)(5))

RCRA permitted/interim status facility

Parts 264/265, 266/267 and 270

RCRA permitted/interim status facility

Parts 264/265, 266/267 and 270

Closure
Close equipment, structures, soils and units by meeting specified performance standards and disposal and decontamination requirements.
Not required Required for tanks, drip pads and containment buildings

– Tanks only

(§ 262.16(b)(3)(vi))

Unit specific Part 265, subpart W and DD for drip pads and containment buildings

Required

– General

(§ 262.17(a)(8))

– Unit specific Part 265, subpart W for drip pads

Source: EPA at https://www.epa.gov/hwgenerators/hazardous-waste-generator-regulatory-summary

[1] 42 U.S.C. § 6903(5) – “The term “hazardous waste” means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”

[2] 40 C.F.R. § 261.10(a) – The Administrator shall identify and define a characteristic of hazardous waste in subpart C only upon determining that: (1) A solid waste that exhibits the characteristic may: (i) Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (ii) Pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed. See also 40 CFR § 261.3.

[3] 40 CFR § 260.10 – Definitions: Generator means any person, by site, whose act or process produces hazardous waste identified or listed in part 261 of this chapter or whose act first causes a hazardous waste to become subject to regulation.

[4] 40 CFR § 260.10

[5] Id.

[6] 40 CFR § 261.10 (a)(2)(ii)

[7] https://www.epa.gov/hwgenerators/hazardous-waste-generator-regulatory-summary

[8] https://www.epa.gov/hwgenerators/table-noting-which-states-have-hazardous-waste-generator-categories-are-same-federal

[9] 42 U.S. Code § 6928 – Federal Enforcement (under the RCRA – Solid and Hazardous Waste Disposal).

 

For more information about "Know Your RCRA Hazardous Waste Generator Category," contact Don P. Gallo at dgallo@axley.com or 262.409.2283 or Patrick Stevens at pstevens@axley.com or 262.409.2296 or Sean W. Frye, P.E. at sfrye@axley.com or 262.409.2287.