EPA Issues Final RCRA Rule Establishing Optional Regime for Waste Classification and Satellite Accumulation of Laboratory Waste at Colleges and Universities
December 11, 2008
Heather S. Bowman- San Francisco
Patricia L. "Pat" Goughan- San Francisco
The United States Environmental Protection Agency (EPA) has finalized a federal rule that changes some of the hazardous waste identification and management requirements applicable to laboratory wastes generated in academic laboratories. “This rule will provide useful flexibility for colleges and universities to manage their lab waste more effectively and efficiently,” observed Robert Benson, the Director of Sector Strategies Division in EPA’s Office of the Administrator. The rule has been sought by higher education institutions for more than 20 years on the ground that operations in academic laboratories differ substantially from industrial hazardous waste generators, and that the Resource Conservation and Recovery Act’s (RCRA’s) regulations created barriers to compliance for academic laboratories. EPA finalized this alternative because the Agency believes laboratories at eligible academic entities do in fact have different hazardous waste generation patterns than typical industries.
The rule provides regulatory flexibility with respect to the management of laboratory wastes by offering colleges and universities an “opt-in” option so states and schools that wish to take advantage of the regulation may do so. Alternatively, campuses may choose to continue to comply with traditional RCRA regulations.
Although the new rule is not effective in RCRA authorized states until adopted by the state, EPA “strongly encourages” the states to adopt the new rule. Colleges and universities wishing to use this optional management system for laboratory waste should contact their state’s hazardous waste agency to determine if their state intends to adopt the new rule, and request them to do so.
New Subpart K Provides Flexible Standards
Colleges and universities often find it challenging to comply with the Resource Conservation and Recovery Act’s (RCRA’s) hazardous waste classification and labeling requirements for wastes generated in their teaching and research laboratories. Academic laboratories generally have a large number of points of generation, such as multiple laboratory benchtops within a single laboratory and laboratories located in multiple buildings on a single campus. In addition, a college or university may have multiple EPA ID numbers for the different laboratories on its campus. Academic laboratories also tend to generate a relatively small volume of different wastestreams at each point of generation. Finally, those who typically generate hazardous waste at college and university laboratories are students, who typically do not possess the same level of training as their counterparts in industry.
On December 1, 2008, EPA promulgated new Subpart K to its generator standards in 40 CFR Part 262 that provides flexible performance based management standards for waste generated and accumulated in these laboratories [73 Fed Reg 72912 et seq].
Highlights of the New Rule
When and Where Hazardous Waste Determination Can Be Made
One of the biggest changes in the rule involves when and where colleges and universities may determine whether a waste is hazardous. Under the current rules, this determination must be made where the waste is generated in the laboratory. The new rule gives institutions greater flexibility, allowing the determination to be made in laboratory, at an on-site RCRA facility that treats, stores, or disposes of hazardous waste, or at an on-site central waste collection area. The rule also contains provisions designed to encourage “lab clean-outs” of unused chemical inventories at these academic laboratories facilities.
“Trained Professionals” Responsible for Hazardous Waste Determination
As EPA notes in the preamble, colleges and universities report that the most challenging aspect of complying with RCRA’s generator rules in their teaching and research laboratories is the requirement in 262.11 to classify materials as hazardous waste and assign the proper waste codes at the point of generation in the laboratory, particularly as the individuals generating these wastes are often students who may not be trained to make these determinations.
One of EPA’s objectives in its new Subpart K was “to remove the responsibility for the hazardous waste determination from the students in the laboratory” and make it possible for these determinations always to be made by trained environmental health and safety (EHS) professionals. A “trained professional” is someone who has received the RCRA training specified in 265.16 or, for colleges and universities operating as small quantity or conditionally exempt generators, someone who is knowledgeable about proper waste handling during normal operations and emergencies [40 CFR 262.200]. The trained professional may be an employee of the college or university, or a contractor or vendor employee who meets the specified training requirements.
For colleges and universities operating under 262.34, the management regime in Subpart K provides an alternative to 262.11 and the existing satellite accumulation rules of 262.34(c) for waste generated and accumulating in teaching and research laboratories. For those operating as conditionally exempt small quantity generators, Subpart K provides an alternative to the conditional exemption in 261.5(b) for management of these laboratory wastes [40 CFR 202].
Laboratory Clean-Outs
Another significant change in the rule involves laboratory cleanouts and how they affect generator status. Activities at university teaching and research laboratories may vary from semester to semester and with changes in research projects or personnel. As a result, these laboratories can acquire small quantities of many different chemicals, some of which may remain on the storeroom shelves far beyond the point at which they are needed or likely to be used in the lab, and in some cases “for years or even decades” according to EPA [73 Fed Reg at 72940].
To provide an incentive to conduct periodic evaluations and clearing out of these so called “legacy chemicals,” Subpart K authorizes a once-a-year lab “clean-out” that can be conducted over a 30-day period. The clean-out starts when a trained professional begins the process of evaluating existing stores of unused chemicals to identify those that will be removed. Even if the Subpart K accumulation quantity limits are exceeded during the clean-out, the laboratory still has 30 days to complete the lab clean-out and remove all of the unwanted materials from the laboratory, as compared to the 10 days otherwise authorized under Subpart K, or the three days authorized under EPA’s existing satellite accumulation rules in 40 CFR 262.34(c).
To address concerns that the laboratory “clean-out” will cause the college or university to exceed the quantity limits of its generator status, Subpart K also provides that hazardous waste comprised of unused commercial chemical products generated during a lab clean-out need not be counted in determining the generator’s on-site RCRA hazardous waste management obligations. However, this waste must be counted for purposes of off-site disposition. Thus conditionally exempt small quantity generators that generate hazardous waste during a laboratory clean-out in excess of the applicable exemption quantity limits in 261.5 must send the waste only to a properly authorized RCRA facility.
A clean-out can be conducted for all labs on-site, or only for specific labs,, but each lab may avail itself of the specific clean-out provisions no more than once a year. Any additional lab clean-outs would be subject to the Subpart K rules governing regularly scheduled removals [40 CFR 262.213].
Who Can Potentially Use Subpart K?
• Eligible Academic Entities
Subpart K may be used by accredited colleges and universities as well as by nonprofit research institutes and teaching hospitals that are owned by the college or university or operating under a formal affiliation agreement with the college or university (or, in the case of a teaching hospital, its medical school). The laboratories at these entities that can be covered by Subpart K are those used on a non-production basis for teaching, research or (in the case of a teaching hospital) diagnostic purposes, and at which relatively small quantities of chemicals are stored and used in containers that can be easily manipulated by one person [40 CFR 200]. Associated chemical storerooms as well as photo labs, art studios and field labs at an eligible academic entity are also covered. Other areas of the campus at which hazardous wastes might be generated are not covered under Subpart K, and hazardous waste generated from operations in these areas would continue to be managed under otherwise applicable RCRA rules.
• Multiple “Sites” and EPA ID Numbers at One Campus
Many college and university campuses are traversed by public streets and so comprise multiple RCRA “sites” each of which has a separate EPA identification number. The academic entity will make a separate Subpart K election for each of its constituent sites that wishes to be subject to Subpart K. Once made, the election will apply to all Subpart K laboratories covered by that EPA identification number or, for sites operating as conditionally exempt small quantity generators, for all laboratories that are part of the same “site” (as defined by 40 CFR 260.10). In keeping with the voluntary nature of Subpart K, an election can later be withdrawn [40 CFR 262.204].
Management Requirements Under Subpart K
• Alternative Labeling at Point of Generation
Subpart K introduces the term “unwanted materials” for chemicals, mixtures of chemicals, products of experiments or other laboratory materials that are no longer needed, wanted or usable in the laboratory and that are destined for hazardous waste determination by a trained professional. Containers of these materials in the laboratory must be labeled as “unwanted materials” (or an equally effective term used consistently for this purpose). The label must also contain a general description of the contents, such as the name of the chemical[s] or type of chemicals (e.g., halogenated organic solvents), that is sufficient to alert emergency responders.
Additional information about the container contents must be maintained that is sufficient to allow a trained professional to make a hazardous waste determination and assign waste codes. Examples of relevant additional information could include: chemical names or description of the contents; whether the material was a product of a chemical reaction; whether it is used or unused; or how it was produced or processed. Unlike EPA’s existing satellite accumulation rules in 262.34(c), Subpart K requires that a record of the date of initial accumulation of material in the container be maintained in order to ensure that a timely hazardous waste determination will be made (see Accumulation Time Limit in the Laboratory below). In keeping with the desire to create a flexible performance based system, this additional information may be included on the container label or otherwise attached to the container, or it may be separately maintained so long as it can be tracked to the container [40 CFR 206(a)].
• Accumulation Time Limit in the Laboratory
The existing satellite accumulation rules of 262.34(c) allow properly labeled hazardous wastes to remain in a satellite accumulation area until specified volumes are exceeded (55 gallons of hazardous waste or one quart of acutely hazardous waste). As EPA points out in the preamble, these volume limits are rarely exceeded in the typical academic teaching or research lab. To assure timely hazardous waste determination for unwanted materials being managed under Subpart K, the rule requires that unwanted materials be removed from the laboratory at least once every six months. Removal is also required within 10 days (or, if earlier, at the time of the next regularly scheduled removal), if the laboratory accumulates more than 55 gallons of total unwanted material (or for six specified acutely hazardous chemicals, one quart of unwanted material). The six-month time limit may be applied to all containers in the lab at the time of a scheduled removal or on a rolling basis for each container based on its accumulation start date. However, all Subpart K labs at the site must follow the same removal frequency method [40 CFR 262.208].
• RCRA Classification and Labeling of Containers of Unwanted Material
All RCRA waste determinations for unwanted material being managed under Subpart K must be made by a “trained professional.” If the containers are to be moved from the lab directly to an off-site location, the RCRA classification and labeling must be completed before the material leaves the laboratory. [40 CFR 262.210] If the materials are to be moved from the lab into an on-site hazardous waste generator accumulation area (called a central accumulation area in Subpart K) or to an on-site interim status or permitted treatment, storage and disposal facility (TSDF), the RCRA classification and labeling may alternatively be performed within four days of the material’s arrival at the on-site accumulation area or facility [40 CFR 262.211; 262.212]. This option facilitates appropriate classification and consolidation of unwanted materials for offsite recycling or disposal, particularly RCRA labpacking, the most common method of preparing hazardous laboratory waste for off-site disposition.
• Laboratory Management Plan
To encourage Subpart K laboratories to implement consistent best management practices, the rule requires preparation of a written laboratory management plan that will apply to all Subpart K labs at the site. The first part of the plan must state how the Subpart K requirements for container labeling for unwanted materials will be implemented, including whether a term other than “unwanted materials” will be used, and whether the six-month removal schedule will be implemented on a fixed or rolling basis. The procedures detailed in this part of the plan are enforceable. The second part of the plan must describe the intended best practices to be followed to meet the specific requirements of Subpart K in seven enumerated areas, including: container labeling and management; providing training to laboratory workers and students commensurate with their duties; removing unwanted materials from laboratories, including procedures for regularly scheduled removals and, if they are to be used, laboratory clean-outs; and procedures for emergency prevention and response. The procedures detailed in this part of the plan are not enforceable as such; rather it is the specific requirements of Subpart K that will be enforceable [40 CFR 262.214].
Conclusion
Both EPA and many colleges and universities see this new rule as an important step forward. As such, the alternative management regime of Subpart K is likely to be welcomed by many universities and colleges and their professional EHS staffs once adopted by their state. Because this new rule is effective in RCRA authorized states only when it is adopted by the state, colleges and universities that might wish to use Subpart K should contact their state hazardous waste agency to urge them to adopt this new rule.
We look forward to assisting our college and university clients to evaluate how Subpart K might be beneficial to their institution, or to work with them to encourage their state to adopt this new rule.
For more information, contact:
Heather Bowman
415.743.6942
heather.bowman@hklaw.com
Pat Goughan
415.743.6978
pat.goughan@hklaw.com
Shai Morris
415.743.6957
shai.morris@hklaw.com
toll free: 1.888.688.8500
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