TAILORED RCRA GENERATOR RULESPAST EFFORTS AND FUTURE PLANS

2014 Missouri Hazardous Waste SeminarNov. 4, 2014David Shanks, Boeing Policy Analysis

1980 Rules - Ideal Generator

•Drum or bulk quantities •Steady production of consistent waste streams•Treatment/disposal facilities available to accept all wastes within 90 days

Labs Don’t Fit the RCRA Ideal

Laboratories generate Numerous waste streams Small quantities per lab Unknown characteristics

of created compounds Are stored reagents

Needed for future use? Abandoned in place? Past usable shelf life? In unmarked containers?

Lab Issues with Standard Rules

3 day limit on satellite accumulation over 55 gal. or 1 quart for acutely hazardous waste Forces frequent, but

irregular removal from numerous labs

400 labs at University of Vermont

More Lab Regulatory Issues

In academic labs, fragmented departments and student turnover: Limits depth of

RCRA training/experience and

Inhibits awareness of possible reuse or recycling in another lab.

Early EPA Efforts for Labs June 2000

EPA solicited academic labs to participate in Project XL/Labs21 program to gather information

2002 EPA Report to Congress on Lab Waste

April 2004 EPA Advance Notice of Proposed

Rulemaking (ANPRM) soliciting input on needed generator rule changes (not just labs)

Laboratory Rulemaking May 23, 2006 Proposed Subpart K Rule

“Alternative Requirement for Hazardous Waste Determination and Accumulation of Unwanted Material for Laboratories Located at Colleges/Universities”

Requires labeling sufficient to allow a fully RCRA-trained person to assign correct waste code

Follow written Laboratory Management Plan 6 months max. accumulation time in lab-- under

55 gal/1 qt 10 days to remove excess (55 gal or 1 qt.) from

satellite accumulation, rather than 3 days Special rules for central accumulation area and

annual lab cleanouts (up to 30 days allowed)

Laboratory Rulemaking

Non-academic labs submitted comments seeking coverage. Other than student turnover, industrial,

commercial, and (non-teaching) medical labs have the same problems with RCRA rules as colleges. EPA allowed teaching hospital labs, but

excluded all others.

Ohio EPA stated that the lab rule is a poor substitute for addressing problems in the accumulation rules for all generators.

Laboratory Rulemaking

Final Subpart K rule published Dec. 1, 2008. In tailoring optional RCRA rules for labs, EPA

created substantial new and different requirements

University facility operations also generate non-lab hazardous waste. Result: two sets of RCRA rules at the facility

Adopted by Missouri Nov. 2011. Eleven years after EPA recognized the

problem. Rate of opt-in by Missouri academic labs?

Retailers Don’t Fit RCRA Industrial Generator Rules

Either

Retailers

Instead of re-examining RCRA rules, EPA and states took an Enforcement First approach to retailer noncompliance

Multi-million $ RCRA penalties (along with CWA, FIFRA, etc.) Wal-Mart Target CVS Pharmacy Costco Albertsons grocery chain Home Depot

Retailers’ Situation Products handled by retailers are seldom

“spent” materials that are obviously waste Containers damaged in handling Spill cleanup Customer returns: held for resale or

“discarded” not always clear Products in good condition, but not selling Stores often served by “reverse logistics

centers” for decisions on whether product can still be

sold, returned to vendor, donated, recycled, or disposed.

Retailers’ Situation Chains may have thousands of locations in

multiple states but not thousands of RCRA compliance experts

on the ground to observe at each store state rule add-ons (MO, CA, WA, others)

prevent consistent corporate training courses Same problem as industrial generators who

operate in multiple states Boeing experience with a draft corporate training

Developed in Puget Sound by persons accustomed to Washington state rules

Not just incomplete, but wrong for other states.

Retailers’ Situation Hundreds of thousands of employees and

3rd party vendors handle merchandise Employees in US

Wal-Mart- -1.4 million Target --350,000

Seasonal temporary and part-time employees are common in retail Even industrial facilities struggle to meet 100%

annual RCRA refresher training for full-time permanent employees, due to Leaves of Absence

For retailers, absence from one year to next is issue

2012—EPA Recognizes a Problem

Some RCRA generator requirements are a poor fit. For example, RCRA presumption that waste codes will be known by in-store personnel.

2012 Unified Agenda opened rulemaking review project regarding retailers and RCRA Carried forward in Spring

and Fall 2013 Unified Agendas

Next EPA Action? Feb. 14, 2014

EPA Notice of Data Availability Invites comment on issues and challenges

retailers face complying with RCRA rules Retail associations submitted 41 page

comment letter Among others, seeks conditional

exemption for unsold or returned products managed in a reverse distribution system.

Most recent EPA Unified Agenda: “Next action undetermined”

Missouri Actions

Draft MO rule revisions address some retailer concerns with Missouri-unique rules “If a generator determines that labeling

a container with a capacity of less than one gallon is not feasible, the generator shall affix the appropriate label(s) to the locker, rack or other device used to hold or accumulate such container.”

Eliminates requirement for DOT packaging during entire storage period.

US Dept. of Transportation July 5, 2012. Advanced Notice of Proposed

Rulemaking (ANPRM) Solicited comment on reverse logistics

August 11, 2014. Proposed Rule Define “reverse logistics”

“Process of moving goods from their final destination for the purpose of capturing value, recall, replacement, proper disposal, or similar reason”

Modify and reduce packaging, hazard communication, and training requirements for reverse logistic shipments. Define responsibilities.

DOT rulemaking is ahead of EPA Both are needed

Pharmaceuticals Don’t Fit RCRA Industrial Generator

Rules Either

RCRA Listed Pharmaceuticals 5-10% of pharmaceuticals

are on P- or U- waste lists. Warfarin blood thinner,

nicotine patches, and physostigmine are common P-listed acute wastes

Result of acute hazard? 2.2 lb/month generation =

Large Quantity Generator Empty containers or

packaging are not RCRA-empty unless triple rinsed (or equivalent). Rinsate is hazardous by mixture rule for listed wastes

P-listed Container Residues

Is LQG status determined by total weight of containers or weight of the residues? Nov. 4, 2011 EPA

guidance says weight of residues only

States are free to impose their own rules or interpretation

EPA Recognized a Problem

On Dec. 2, 2008, EPA proposed a Pharmaceutical Universal Waste rule About 634,000 affected health care entities in US Assoc. of State & Territorial Solid Waste Mgt

Officials suggested simpler rules for safe handling & incineration of all pharmaceuticals. EPA rejected. P- and U- listings do not keep up with new drug

introductions

EPA withdrew its proposal in 2012. US Drug Enforcement Agency (DEA) proposed a

new rule on Dec. 21, 2012 on Disposal of Controlled Substances.

DEA Adds Complexity

DEA issued its final rule Sept. 9, 2014. Overlap of DEA-controlled and RCRA-

hazardous drugs is limited, but both rules apply

DEA rule concerned with tracking of registrants to control diversion of narcotics DEA defers to EPA on methods of

destruction & RCRA compliance Under DEA voluntary take-back provisions,

household donors might qualify for RCRA household hazardous waste exemption

Further EPA Action

Spring 2014 EPA Unified Agenda Projects a Dec. 2014 proposal to set

Management Standards for Hazardous Waste Pharmaceuticals (not as Universal Waste) Focused on reverse distribution system

While EPA tried to decide, Florida and Michigan adopted Universal Waste standards for hazardous pharmaceuticals: Storage longer than 90 days, and weight of

drugs/residues don’t count toward SQG/LQG status.

Applicable only within state boundaries, however.

Lessons Learned

Tailoring RCRA rules to non-industrial waste: May take a decade or more

especially if EPA’s starting point is the text of existing RCRA rules

May result in tailored rules that address some issues, but increase complexity Subpart K lab rules

States may choose not to adopt, adopt only slowly, opt for a Universal Waste approach, or muddle through with guidance or enforcement discretion