This article is the first in a series to address the requirements of 40 CFR 265, subpart D – Contingency Plan and Emergency Procedures as it applies to a large quantity generator of hazardous waste (LQG).  Each article will explain the requirements of a specific section of Subpart D.  Keep in mind the regulations of your state may differ from these Federal regulations.

The purpose of this article: identify and explain the requirements of 40 CFR 265.50 Applicability of the Contingency

Hold on a minute!  These regulations were revised and moved to a new location within Title 40 of the CFR by the Generator Improvements Rule.  If your state has not yet adopted the Generator Improvements Rule, then this article is still applicable to you (but it won’t be for much longer).  If your state has adopted and been authorized to enforce the Generator Improvements Rule, then these regulations no longer apply to you.  Read: What is the status of the Generator Improvements Rule in my state?

To see an explanation of these regulations as revised by the Generator Improvements Rule you must refer to the following:

• Large quantity generator of hazardous waste (LQG)
• Small quantity generator of hazardous waste (SQG)

To see an explanation of the regulations prior to the revisions of the Generator Improvements Rule, please continue reading this article.

§265.50 Applicability reads:

The regulations in this subpart apply to owners and operators of all hazardous waste facilities, except as §265.1 provides otherwise.

Reading the above, “…all hazardous waste facilities…” you might think that the regulations of Subpart D apply to all hazardous waste generators (LQG, SQG, & CESQG) along with hazardous waste Treatment Storage and Disposal Facilities (TSDF’s), but that is not so.  The applicability of Subpart D is as follows:

• A hazardous waste TSDF without a RCRA operating permit is subject to Subpart D as it is to all of 40 CFR Part 265.
• An LQG is subject to Subpart D by reference at §262.34(a)(4).
• An SQG is not subject to Subpart D since no reference to its applicability is made in §262, or anywhere else.
• A CESQG is not subject to Subpart D pursuant to §261.5(b) which exempts it from compliance with parts 262 through 268, and parts 270 and 124.

So right away our applicability for a contingency plan is whittled down to hazardous waste TSDFs and LQGs.

The list of facilities identified at §265.1 that are excluded from compliance with Subpart D include:

• Permitted disposal of hazardous waste by ocean disposal.
• A POTW that treats, stores, or disposes of hazardous waste.
• A facility permitted to manage municipal or industrial solid waste.
• A facility managing recyclable materials.
• A farmer disposing of waste pesticides from his own use.
• A totally enclosed treatment facility, elementary neutralization unit, or a wastewater treatment unit as defined in §260.10.
• The immediate response to a hazardous waste discharge or release.
• Manifested shipments of hazardous waste in containers at a 10-day transfer facility.
• The addition of absorbent material to waste in a container or the addition of waste to the absorbent material in a container.

• Universal waste handlers and universal waste transporters

• A New York State Utility central collection facility consolidating hazardous waste.

• A generator accumulating waste on-site in compliance with §262.34 of this chapter, unless a reference is made to this part in §262.34.

This last bullet point reinforces the applicability of Subpart D to an LQG, since a reference to Subpart D is made at §262.34(a)(4).  Whereas no reference to Subpart D is made in §262.34 for SQGs or CESQGs.

Therefore, if you are a large quantity generator of hazardous waste you must comply with the regulations in 40 CFR 265, Subpart D, which means a contingency plan.  SQGs and CESQGs are not required to have a contingency plan.

Further clarification is required of the scope of the contingency plan at an LQG.  Namely, does it apply to all hazardous waste operations at the facility?  Or, merely to the four hazardous waste accumulation units that are allowed for an LQG:  containers, tanks, drip pads, & containment buildings?  The answer from this USEPA memorandum (RO 14758) is that the requirements of §265, Subpart D (including the contingency plan) only apply to the areas where hazardous waste accumulate subject to the 90-day on-site time limit.  Among others, this would exclude satellite accumulation areas from the requirement to include in the contingency plan.  Though not required to be included, you may wish to consider inclusion of all areas of hazardous waste accumulation, generation, treatment, storage, etc…

Next article:  40 CFR 265.51 – Purpose and Implementation of Contingency Plan

Please don’t hesitate to contact me if you have any questions about the RCRA hazardous waste regulations or the transportation of hazardous materials.