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Amendment to the Speculative Accumulation Provision Under the New Definition of Solid Waste Rule (2015 DSW)

Amendment to the Speculative Accumulation Provision Under the New Definition of Solid Waste Rule (2015 DSW)

Amendment to the Speculative Accumulation Provision Under the New Definition of Solid Waste Rule (2015 DSW)

In a Final Rule published January 13, 2015 in the Federal Register, USEPA amended the definition of solid waste it had enacted in 2008 (2008 DSW).  The Federal regulations of the 2015 DSW become effective July 13, 2015.  States with an authorized hazardous waste program are required to adopt the Federal Rule or create their own more strict regulations; how and when they do this is up to each state.

The purpose of this article is to explain the changes made to the speculative accumulation provision by the 2015 DSW.

Speculative accumulation is defined at 40 CFR 261.1(c)(8).  It’s purpose is to prevent the indefinite storage of a hazardous secondary material prior to its recycling in a manner that excludes it from regulation as a solid waste.  In short, if a person is unable to demonstrate that speculative accumulation is not taking place any claim to a recycling exclusion is lost and the material reverts to regulation as a waste. A material is not accumulated speculatively if the person accumulating it can show both of the following to be true:Recycling Symbol

  1. The material is potentially recyclable and has a feasible means of being recycled.
  2. Of the amount on-site at the beginning of the calendar year (January 1), 75% by weight or volume is recycled (on-site or off-site) by the end of the calendar year (December 31st).

While the fundamental requirements of the regulation remain unchanged, it is the second of these two requirements that was revised and strengthened by the 2015 DSW.  USEPA’s desire was to make it easier for inspectors and other regulatory authorities (i.e. states) to quickly determine how long a facility has been storing an excluded secondary material and if it is in compliance with §261.1(c)(8).  It is for that reason that under the 2015 DSW the USEPA has amended the speculative accumulation provisions to add a recordkeeping requirement.

As of the effective date of the 2015 DSW (July 13, 2015) the definition of speculative accumulation at 40 CFR 261.1(c)(8) will be amended to include the following:

Materials must be placed in a storage unit with a label indicating the first date that the material began to be accumulated.  If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method.”

Question & Answer:

Does the new recordkeeping requirement of the speculative accumulation provisions apply solely to the revised/new conditional exclusions of the 2015 DSW, i.e. 40 CFR 261.4(a)(23), (24), & (27)?

No.  The change is not limited solely to regulations revised or added by the new 2015 DSW.  Since the change was made to the definition of speculative accumulation at 40 CFR 261.1(c)(8), it will apply to all persons accumulating a hazardous secondary material prior to recycling.  From the Final Rule:

Under today’s rule, all persons subject to the speculative accumulation requirements at 40 CFR 261.1(c)(8) (including, but not limited to, persons operating under the generator-controlled
exclusion at § 261.4(a)(23)) must place materials subject to those requirements in a storage unit with a label indicating the first date that the material began to be accumulated.

“…all persons subject to the speculative accumulation requirements…”  Be sure to check the list I have included with this article of some of the existing regulations that reference speculative accumulation and will be impacted by this change.  This list is not all inclusive, let me know if you are aware of any citations I have missed.

So, what are the requirements of the amendments to the speculative accumulation regulations? What measures must be taken to comply with the new 40 CFR 261.1(c)(8)?  First of all, let’s read what the USEPA indicates is not required by the 2015 DSW (this is from the preamble to the Final Rule in the Federal Register):

Today’s revision to the speculative accumulation provision at 40 CFR 261.1(c)(8) does not entail submitting notifications to EPA, posting the quantity of the hazardous secondary material and the time it was generated, or posting finish dates.

So, none of the following will be required:

  • Submitting a notification to the USEPA regarding your recycling activities.
  • Posting, labeling, or otherwise identifying on the storage unit the following:
    • The quantity of hazardous material presently on-site.
    • Its date of generation.
    • The finish date.
Question & Answer:

What is meant by “finish date”?  The date the calendar year ends (December 31)? The date HSM was removed from the storage unit?  What?

A conversation with the USEPA didn’t completely answer the question, but it did settle the issue.  According to USEPA, “finish date” may refer to the date the material was removed from accumulation.  Or, it could refer to a future date the material will be removed from accumulation.  In either case, a company is not required to post or label the storage unit with this date.

The new requirements of the amended §261.1(c)(8) are:

  • Materials must be placed in a storage unit.  Curiously, the term “storage unit” did not appear previously in the speculative accumulation provision, nor is it defined in the RCRA regulations.  So what is it?  Again, conversation with USEPA clarified the issue, “A storage unit is a unit where the material is stored prior to recycling.  Depending on the material in question this could be a tank, container, pile, etc.”
Do you have a question for USEPA regarding the 2015 Definition of Solid Waste Final Rule?  Refer to the final paragraph of this article:  A Brief Summary of the 2015 Definition of Solid Waste Final Rule for USEPA contact information on this subject.
  • Storage unit must be labeled (I suggest you use EPA’s voluntary label for hazardous secondary materials to be recycled) to indicate the first date that the material began to be accumulated.  Note that this is not the date the material was generated, but the date it began accumulation in the storage unit.  Also, this requirement is for a label to be present on or near the storage unit indicating the date, maintaining a record elsewhere will not comply, unless…
  • If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method.  The inclusion of “other appropriate method” was due to the concerns of facilities who use a continuous recycle process lacking storage units that can be labeled.  The deliberate ambiguity of the language allows a facility flexibility in its compliance.  A determination of the effectiveness of an “other appropriate method” for labeling would be if it fulfills USEPA’s purpose expressed in the Final Rule:

This provision will allow inspectors and other regulatory authorities to quickly ascertain how long a facility has been storing an excluded hazardous secondary material, and, therefore, whether that facility is in compliance with the accumulation time limits of §261.1(c)(8).

In other words, as long as the “other appropriate method” makes it clear to inspectors how long the hazardous secondary material has been in the storage unit, it should be in compliance with the amended §261.1(c)(8).

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Question & Answer:

Does the revised definition of “contained” in the 2015 DSW apply to hazardous secondary materials subject to the speculative accumulation provision?

Not directly since the new definition of “contained” and the amendments to the speculative accumulation provisions are two independent issues.  However, the new Legitimate Recycling Provision at §260.43 (also part of the 2015 DSW) requires a hazardous secondary material being recycled to be contained.  Therefore, in order to meet the new legitimate recycling provision, a hazardous secondary material be recycled (including one subject to the speculative accumulation provision) will need to be contained per the new definition in the 2015 DSW.

Below is a list of some of the locations in the RCRA regulations where a reference to speculative accumulation can be found:

Contact me with any questions you may have about the generation, identification, management, and disposal of hazardous waste

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It’s hard to believe that this amendment to the speculative accumulation regulation is only one small aspect of the 2015 DSW.  Contact me if you have any questions about the 2015 DSW, the recycling of hazardous secondary materials, or the management of hazardous waste.