The Generator Improvements Rule went into effect on May 30, 2017. “Into effect” however, only in the federal regulations of the U.S. Environmental Protection Agency (USEPA) and those states without an authorized hazardous waste program (read: What is the status of the Generator Improvements Rule in my state?) The new rule made over 60 changes to the regulations of the USEPA, mostly those applicable to the generator of a hazardous waste. The purpose of this article is to explain the revisions the new rule made to what is commonly known as the Fifty Foot Rule.
Prior to the Generator Improvements Rule USEPA listed most of the responsibilities of an LQG at 40 CFR 262.34 with references there to more requirements in 40 CFR 265. As part of its reorganization of hazardous waste generator regulations under the Generator Improvements Rule, USEPA moved all of the LQG-specific regulations to §262.17 (with some references still to part 265). The Fifty Foot Rule is one of those regulations relocated by this reorganization. It has been moved from its past location at §265.176 in subpart I (referenced to at §262.34(a)(1)(i)) to §262.17(a)(1)(vi) where it sits solidly within the regulations applicable solely to an LQG. The old rule read:
Containers holding ignitable or reactive waste must be located at least 15 meters (50 feet) from the facility’s property line.
USEPA felt that this rule was too inflexible for some LQGs and therefore included in the revised rule a provision for the LQG to be granted a waiver from the Fifty Foot Rule (or, more accurately the Fifteen Meter Rule) if it could be done without jeopardizing safety or the environment.
- While the original rule applied both to LQGs and interim status treatment, storage, and disposal facilities (TSDFs), the new rule applies solely to LQGs. USEPA considered extending the waiver to TSDFs but felt their existing permit application process was sufficient to provide the desired flexibility.
- Both the original and the revised rule apply solely to hazardous waste accumulated in containers. Different requirements apply to hazardous waste accumulated in tanks, containment buildings, and drip pads.
- The rule does not apply to hazardous waste containers subject to the satellite accumulation area exemption at §262.15.
- Though not stated clearly in either version of the regulation, the placement of the containers inside a building does not affect the requirement to maintain the specified distance from the property line.
- The applicability of the rule is limited solely to hazardous waste that exhibits the characteristic of ignitability (D001) or reactivity (D003). It does not apply to the following hazardous waste:
- Exhibits characteristic of corrosivity (D002).
- Exhibits characteristic of toxicity (D004 – D043).
- Meets the definition of a listed hazardous waste:
- Non-specific sources (F-codes).
- Specific sources (K-codes).
- Discarded commercial chemical products, off-specification species, container residues, and spill residues thereof (P-codes if acutely toxic and U-codes if toxic).
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The USEPA’s Generator Improvements Rule revised the old 50 Foot Rule in two significant ways:
- It was moved from 40 CFR 265.176 – referenced at §262.34(a)(1)(i) – to §262.17(a)(1)(vi).
- It provides for an option to accumulating ignitable and reactive hazardous waste at least 15 meters (50 feet) from the facility’s property line if approval is granted by the authority having jurisdiction (AHJ) over the fire code within the facility’s state or locality.
The new rule:
The new rule at 40 CFR 262.17(a)(vi) reads:
Special conditions for accumulation of ignitable and reactive wastes. (A) Containers holding ignitable or reactive waste must be located at least 15 meters (50 feet) from the facility’s property line unless a written approval is obtained from the authority having jurisdiction over the local fire code allowing hazardous waste accumulation to occur within this restricted area. A record of the written approval must be maintained as long as ignitable or reactive hazardous waste is accumulated in this area.
At first there appears to be no change. The regulation still requires containers of ignitable or reactive hazardous waste to be located at least 15 meters (50 feet) from the facility’s property line. The change appears in the next line. The new regulation provides an alternative to compliance with the 50 foot limit by allowing the LQG to receive a site-specific waiver in writing from their authority having jurisdiction (AHJ) over the fire code within their state or locality (read: What is the AHJ?) and maintains a written copy of the waiver as a record as long as the waste is accumulated in the restricted area. The important aspects of this option deserve greater emphasis.
- The option to receive a waiver instead of accumulating hazardous waste outside of the restricted area is available to an LQG who is unable to comply with the 50 foot limit, not one that merely finds it inconvenient. Though not stated in the regulation, this intent is communicated in the Federal Register publication of the Generator Improvements Rule. Examples offered by USEPA for situations requiring the waiver include:
- Width of the LQG’s site is 100 feet or less.
- LQG’s operations have expanded such that it no longer has the ability to accumulate ignitable or reactive hazardous waste within the restricted area.
- The waiver must be granted in writing by the AHJ.
- A copy of the waiver must be maintained by the LQG for as long as the waste accumulates within the 50 foot restricted area.
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Will all states adopt this new federal rule? Will yours? Since it is less restrictive than existing regulation, states with an authorized hazardous waste program are not required to adopt it. Check with your state environmental regulatory agency to determine its intent. Be sure to contact me if you have any questions about the Fifty Foot Rule or the Generator Improvements Rule.