Insights into Common Due Diligence Compliance Shortcomings – Part IV: RCRA

In our last installment of this four-part mini-series on Common Due Diligence Compliance Shortcomings, this article will focus on common non-compliance issues (NCIs) we find in connection to Resource Conversation and Recovery Act (RCRA) hazardous waste and generator compliance. To read Parts I, II, and III of the Insights into Common due Diligence Shortcomings, please use the links below.

Insights into Common Due Diligence Compliance Shortcomings – Parts I through III

• Part I: Tier II, Form R, and EPCRA
•  Part II: SPCC and Used Oil Management
• Part III: Stormwater

This article will expand upon another common compliance short coming that we often find when conducting a Limited Environmental, Health & Safety (EH&S) Compliance Review (LECR). LECRs are generally conducted along with the Phase I Environmental Site Assessment (ESA), when the Phase I ESA is being conducted to support a transaction involving an operating business that engages in light industrial or manufacturing, food processing, or bulk-storage of large quantities of materials with possible compliance reporting obligations or permitting requirements. The primary goal of a LECR is to identify and plan for material EH&S concerns that have a high risk of penalty or could require significant effort (time and money) to address, including compliance permitting, reporting or program development obligations. Compliance shortcomings or non-compliance issues (NCIs) identified by an LECR can then be captured in purchase and sale agreements.

RCRA Overview

RCRA, as we know it, passed in 1976 and set-up a platform to manage, document, and complete appropriate disposal of hazardous wasted through the United States Environmental Protection Agency (USEPA). Prior to RCRA, waste (including what we now refer to as “hazardous waste”) was largely considered “garbage” by generators – you can imagine how the world (particularly our landfills) may be different without RCRA statutes and mandates governing hazardous waste that we have in place today. As many know, there is a number of sites throughout the United States that were impacted and are still being cleaned-up or monitored due to “waste management” activities prior to RCRA. RCRA regulation may be reviewed in title 40 of the Code of Federal Regulations (CFR) parts 239 through 282.

Hazardous waste is defined a waste with properties that make it dangerous or capable of having a harmful effect on human health or the environment. The USEPA has established four different lists of RCRA hazardous waste, three listed wastes and characteristically hazardous waste (ignitability, corrosivity, reactive and toxicity). The three classes/categories of hazardous waste generators are:

• Very small quantity generator/conditionally exempt small quantity generator (VSQG/CESQG)
• Small quantity generator (SQG)
• Large quantity generator (LQG)

The table below outlines at a high level the general classes/categories of hazardous waste generators and waste generation quantity limits and requirements. State regulations and additional federal regulation details should be evaluated in detail for applicability.

Common Non-Compliance Issues

 In BBJ Group’s experience, the most common NCIs we identified related to RCRA include:

• Not evaluating waste streams to determine if the facility is generating a hazardous waste;
• Not obtaining a hazardous waste generator registration (ID);
• Not understanding state specific regulatory requirements;
• Not maintaining an adequate inventory of waste to ensure a generator is operating and registered under the correct generator classification (e.g., a LQG registered as a SQG);
• SQG and LQG facilities not conducting and/or documenting weekly inspections;
• Not understanding the RCRA satellite accumulation area (SAA) requirements: near points of generation, proper labeling and identification, timing to move containers into the RCRA 180 or 90- day storage area and quantities (a Facility can accumulate up to 55- gallons of hazardous waste and/or one quart of liquid acute hazardous waste or one kg of solid acute hazardous waste at each SAA);
• SQG and LQG’s not providing proper training (emergency preparedness and personal training requirements), as detailed in sections 262.16(b)(9) and 262.17(a)(7), respectively maintaining training records; and
• Not developing Contingency Plan and Emergency Procedure or understanding requirements for SQGs.

Because there are many requirements associated with the generation and management of hazardous waste, facilities can become overwhelmed if comprehensive hazardous waste management programs have not been established for the facility. The good news is that a LECR can provide an initial overview of a facilities understanding of the federal and state regulatory requirements and will provided a high-level understanding of hazardous waste compliance deficiencies. SQGs and LQGs can work with an environmental professional to evaluate regulatory requirements and update or develop a hazardous waste management program and tools to assist the Facility to obtain and maintain compliance. Training facility personnel is also a key part of implementing protocols and maintaining continued compliance.

The Bottom Line

Hazardous waste management regulations can be detailed, require management, documentation, training, and recordkeeping. Regulatory obligations are sometimes overlooked compliance issues. Hazardous waste compliance can be managed pro-actively through understanding federal and state specific regulations, proper program development and planning. Using the LECR to identify issues before you purchase a business can help ensure these hazardous waste compliance matters are included as part of a transition plan and on the books for resolution shortly after closing.