Is Your Waste Coming or Going? EPA Revises Hazardous Waste Export-Import Rules and Reforms Generator Rules

Pierce Atwood LLP
Lisa A. Gilbreath and Kenneth F. Gray

November 15, 2016

In late October 2016, the United States Environmental Protection Agency (EPA) adopted two final rules that will very shortly change procedures for those who export or import Resource Conservation and Recovery Act (RCRA) hazardous waste and – in the long run – allow important changes for hazardous waste generator management practices.

First, EPA finalized significant revisions to RCRA hazardous waste export-import regulations. These revisions are generally consistent with EPA’s 2015 proposed rule and implement the more stringent transboundary shipment rules of the Organization for Economic Cooperation and Development. The rules provide one consolidated and streamlined set of requirements applying to all exports and imports, some of which are effective at the end of December.

In general, the revisions affect four groups: (1) all persons who export or import (or arrange for the export or import of) hazardous waste for recycling or disposal, including universal waste; (2) all facilities that receive imports of such hazardous wastes for recycling or disposal; (3) all persons who export, or arrange for the export of, conditionally excluded cathode ray tubes being shipped for recycling; and (4) all persons who transport any export and import shipments.

These rule changes – which will go into effect on December 31, 2016 – will affect transboundary shipments currently subject to 40 C.F.R. Part 262 Subpart H, as well as those shipments to Canada and Mexico under Subparts E and F. Streamlining these requirements, in an effort to reduce confusion and increase compliance, EPA has folded all three sets of regulations into the revised Subpart H. As a result, shipments to and from Canada and Mexico will now be subject to all the requirements of Subpart H.

Additional substantive changes to the requirements of Subpart H, which will affect all transboundary shipments regardless of origin or destination, include electronic submittal of most documents, submittal of export consent information as part of the exporter’s declaration to the U.S. Customs and Border Protection (CBP), and a requirement that traders who merely arrange for export of hazardous waste obtain an EPA ID number.

Among other immediate requirements, as of December 31, 2016 exporters must now establish or amend contracts to provide additional information on aspects of the shipment, must prepare and provide a RCRA manifest for every shipment listing waste stream consent numbers matched to each listed waste, and must prepare and provide an international movement document for every shipment. Recognized traders must obtain an EPA ID number prior to export.

Certain other changes will be phased in over time, including electronic reporting to EPA’s Waste Import Export Tracking System and submitting certain information to CBP through its Automated Export System. The terms of consents issued prior to the rule’s effective date are generally unaffected.
These rules are effective in all states, as allowed by RCRA, and civil penalties for each RCRA violation just increased to over $70,000 per day. If you have any questions regarding the new export-import rules, please contact Ken Gray (207-791-1212) or Lisa Gilbreath (207-791-1177).

Second, EPA adopted a comprehensive overhaul to the RCRA generator rules. This is the first overhaul since the generator rules were published in the 1980s. While some of these rules will simplify and streamline compliance as compared to existing rules, the 60 plus changes are, overall, a mixed bag. Importantly, none of these Generator Improvement Rule changes will be effective in RCRA authorized states (which is the vast majority, including all New England states) until those states update their rules.

Among the notable features of the “Generator Improvements Rule”:

  • Very Small Generators (less than 100 kgs/month) may send their waste to a Large Quantity Generator facility under control of the same company, under certain conditions;
  • Very Small Generators may maintain their smaller status if there is only episodic generation of larger quantities within 60 days;
  • There may be a local waiver of the 50-foot property line buffer for storage of ignitable wastes;
  • Generators must now provide certain information to local responders in advance; and
  • Generator rules will now be found in one location in the CFR.

There are several new burdens, including:

  • Hazardous Waste containers must now describe hazards and dates of initial accumulation; and
  • Small Quantity Generators must re-notify every four years starting in 2021.

EPA has codified several “clarifications” that may require changes for generators who have been unaware of these agency interpretations. These include:

  • Waste is regulated “as generated” before any mixing, treatment or dilution;
  • When a generator may rely on “generator knowledge”; and
  • Allowing satellite accumulation areas for Small Quantity Generators.

One of several of EPA’s proposed changes not adopted in the final rule included a recordkeeping requirement to document determinations that waste was not a hazardous waste.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Gray and Ms. Gilbreath and may not reflect the opinions of Synergy Environmental, Inc., Pierce Atwood LLP or either of those firms’ clients.

























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