27th January 2017
Daniel Flynn, Greenbaum Rowe Smith & Davis LLP
At the beginning of 2016, the U.S. Environmental Protection Agency (EPA) appeared on track to accomplish three tasks intended to address problems faced by the retail sector in complying with hazardous waste regulations under the federal Resource, Conservation and Recovery Act (RCRA). But as a new year and a new presidential administration settle into place, only one of those tasks has actually been finalised. MSI's New Jersey law member Greenbaum Rowe Smith & Davis LLP explains further.
First promulgated in 1980, the RCRA regulations were admittedly designed with the industrial sector in mind. For the retail sector, they presented a classic “square peg in a round hole” predicament.
EPA’s efforts to address the retail sector problem began back in 2011 with an Executive Order requiring all federal agencies to develop plans to “determine whether any [of their] regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.”
In 2014, EPA collected comments from the public regarding difficulties encountered by the retail sector in complying with RCRA. In August 2015, EPA addressed some of these concerns by proposing two regulatory amendments, the Hazardous Waste Generator Improvements Rule and the Management Standards for Hazardous Waste Pharmaceuticals Rule. The public comment period on the two proposed amendments ended in December 2015, presumably clearing the way for their promulgation in 2016.
In addition, it was expected that EPA would issue a new guidance document explaining, in general, how the retail sector could reasonably work within the amended RCRA program to minimize the problems experienced in the past.
Hazardous Waste Generator Improvements Rule
The final Generator Improvements Rule was published in the Federal Register on November 28, 2016. The regulation is scheduled to become effective on May 30, 2017 in states where EPA directly administers the RCRA program. States with delegated responsibility for RCRA have until July 2018 or July 2019 to adopt the new requirements. The longer grace period is allowed for states in which an amendment of a statute is required.
The final rule is largely the same as the version EPA first proposed in August, with only a handful of minor changes. According to EPA, its “primary intent … is to foster improved compliance by hazardous waste generators in the identification and management of the hazardous waste they generate and, as a result, improve protection of human health and the environment.” In reality, the new regulation is a mixed bag that provides a modest increase in flexibility in some areas, but notably increases potential penalty exposure, regulatory burdens, and restrictions in others. All hazardous waste generators should proceed with caution and familiarize themselves with the new compliance requirements.
Read more about EPA’s regulation of hazardous waste materials
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