NYSDEC Proposed Revisions to Hazardous Materials Regulations

Image courtesy lebanonnh.gov

Since 2012, the United States Environmental Protection Agency (EPA) has promulgated a number of major changes to the rules that regulate the treatment, storage and disposal of hazardous waste. The New York State Department of Environmental Conservation is considering adopting a number of these federal changes to the applicable state rules.

Before it finalizes any of the proposed revisions, NYSDEC is conducting webinars, holdings meetings, and seeking comments on these potential revisions to the New York State hazardous waste management regulations.

Comments can be submitted to NYSDEC via email or U.S. Mail to the following addresses:

Email:

HWRegs@dec.ny.gov

(Include “Comments on FedReg6” in the subject line of the email)

U.S. Mail:
Michelle Ching
NYSDEC
625 Broadway
Albany, NY 12233-7256

The dates, times and locations of webinars and meetings can be found at:

https://content.govdelivery.com/accounts/NYSDEC/bulletins/24c46d5

The regulations proposed to be amended, revised are added to the New York Code of Rules and Regulations are as follows:

This rule adds regulations for the management of hazardous waste pharmaceuticals by healthcare facilities and reverse distributors. Healthcare facilities and reverse distributors will manage their hazardous waste pharmaceuticals under this new set of sector-specific standards in lieu of the existing hazardous waste generator regulations. These new regulations exclude certain U.S. Food and Drug Administration (FDA) approved over-the-counter (OTC) nicotine replacement therapies (NRTs) (e.g., nicotine gums, patches, lozenges) from regulation as hazardous waste. These provisions also prohibit the disposal of hazardous waste pharmaceuticals down the drain, this ban on sewering hazardous waste pharmaceuticals goes into effect nationwide on the effective date of the federal rule, regardless of adoption status of the rule by authorized states.

  • Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations (Regulation proposed by EPA 2018)

Aerosol cans are managed by a wide variety of establishments, including retail stores. Aerosol cans may be hazardous wastes due to residual chemicals but may also be a hazardous waste because of the hazard posed by the pressure in the cans. By adding aerosol cans to the universal waste rule and creating a set of standards specific to the risks posed by this waste stream, collection and recycling of these wastes will be encouraged. This will reduce the quantity of these wastes going to municipal solid waste landfills or combustors.

  • Safe Management of Recalled Airbags Interim Final Rule (2018)

This rule facilitates the more expeditious removal of defective Takata airbag inflators and improve safe and environmentally sound disposal of collected airbag wastes from vehicles by dealerships, salvage yards and other locations.

Revises the definition of solid waste to conditionally exclude solvent-contaminated wipes that are cleaned and reused and revises the definition of hazardous waste to conditionally exclude solvent-contaminated wipes that are disposed.

The Carbon Dioxide Sequestration Rule provides a conditional exclusion for carbon dioxide (CO2) streams in geological sequestration activities. This rule would conditionally exclude CO2 streams that are hazardous waste from the definition of hazardous waste, if they are captured from emission sources and are injected into Class VI Underground Injection Control wells for geological sequestration, provided that certain requirements are met.

  • Hazardous Waste Electronic Manifest (e-Manifest) Rules (2014; 2018)   EPA’s e-Manifest Rules provide the legal and policy framework to authorize the use of electronic manifests. The e-Manifest system went into effect throughout the United States at the same time, even if authorized states had not yet amended their regulations. The e-Manifest system launched on June 30th, 2018. DEC must adopt these provisions to maintain conformance with the federal regulations.

Redefines “hazardous secondary materials.” It streamlines regulation of hazardous secondary material to encourage beneficial recycling and helps conserve resources. By removing unnecessary regulatory controls, it is expected to make it easier and more cost-effective to safely recycle hazardous secondary materials. EPA published substantial revisions to this rule on January 13, 2015. As amended, the rule provides greater safeguards from mismanagement. Certain parts of the 2015 Final Rule are more stringent than current DEC regulations. DEC must adopt these provisions, which include a revised definition of “legitimate recycling,” a prohibition on sham recycling, and new recordkeeping requirements related to speculative accumulation provisions.

Reorganizes and restructures the hazardous waste regulations to make them more user-friendly for the regulated community. This rule also includes revisions that are intended to address existing gaps in the hazardous waste regulations including container labeling, preparedness and prevention, and closure. The rule also contains some less stringent provisions designed to provide flexibility to the regulated community including procedures for episodic generation events, the waiver from the 50-foot setback for large quantity generators, and consolidation of waste from very small quantity generators by a large quantity generator under the control of the same entity.

  • Modernizing Ignitable Liquids Determinations (Regulation proposed by EPA 2019)

Regulation currently proposed by EPA to modernize the RCRA test methods used to determine the flash point of waste. Flash point is used to identify waste that is characteristically hazardous for ignitability. These revisions will provide more flexibility with regard to the testing requirements and greater clarity for the regulated community with respect to hazardous waste identification.

  • Hazardous Waste Export-Import Revisions (2016; 2017)

These rules amend existing regulations regarding the export and import of hazardous wastes from and into the United States (US). The rules make existing export and import related requirements more consistent with the import-export requirements for shipments between members of the Organization for Economic Cooperation and Development (OECD), enable electronic submittal to EPA of all export and import-related documents (e.g., export notices, export annual reports), and enable electronic validation of consent in the Automated Export System (AES) for export shipments subject to RCRA export consent requirements prior to exit from the US.

  • Disposal of Coal Combustion Residuals from Electric Utilities (2015)   EPA created this rule to regulate the disposal of coal combustion residuals (CCR) as solid waste under subtitle D of RCRA. This rule establishes a national minimum criteria for existing and new CCR landfills, existing and new CCR surface impoundments, and all lateral expansions. This rule primarily addresses regulation under solid waste rather than hazardous waste provisions. In the CCR rule, EPA revised an existing exclusion to allow certain low-volume wastes commonly produced in conjunction with the burning of fossil fuels to produce electricity to be excluded from the hazardous waste regulations if co-disposed with the fly ash, bottom ash, boiler slag or flue gas emission control wastes from coal combustion. On December 16, President Obama signed the Water Infrastructure Improvements for the Nation (WINN) Act into Law. The law includes amendments to the Resource Conservation and Recovery Act (RCRA) Section 4005, to address the regulation of CCR. EPA expanded their exclusion in 40 CFR 261 to include wastes that are commonly co-disposed with these wastes. DEC is not planning to expand the exclusion in 6 NYCRR 371.1(e)(2)(iv), Identification and Listing of Hazardous Waste. There are currently two coal-fired power plants in the state that operate on an intermittent basis.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you have questions regarding the generation, storage, treatment or disposal of hazardous waste or any of the under consideration changes to New York’s hazardous waste rules or if you would like assistance in preparing and submitting comments to NYSDEC, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm.

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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