The U.S. Environmental Protection Agency (EPA) is considering and seeking public comment on potentially significant amendments to the hazardous waste regulations concerning the management, recycling, and disposal of drums and other containers that contained hazardous waste – including possible changes to the definition of “empty” containers. The changes under consideration, which were announced in the wake of a detailed report on drum reconditioning last year, could have sweeping consequences for businesses across industries that generate and manage used containers with hazardous waste residues. Comments on EPA’s Advance Notice of Proposed Rulemaking are due by September 25, 2023.

The 2022 Drum Reconditioner Damage Case Report highlights EPA’s concerns that drum reconditioning is a source of environmental contamination and, in some instances, public safety risks. EPA also questions whether the existing regulations that apply to the management of containers with hazardous waste residues are adequate to prevent these impacts, and whether the incidence of non-compliance with existing regulations is contributing to increased environmental releases and safety issues.  The report also raises environmental justice concerns, pointing to a preliminary assessment by EPA that concluded that over 90% of drum reconditioning facilities are in communities that may be burdened by other sources of pollution.

EPA is seeking feedback on a series of options to address the agency’s concerns. The options include amendments to the hazardous waste regulations under Subtitle C of the Resource Conservation and Recovery Act (RCRA) and various non-regulatory actions.

EPA is soliciting comments on:

• Eliminating the RCRA “empty” exemption at 40 CFR 261.7 for hazardous waste residues in containers.
• Establishing more stringent requirements, such as rinsing, for all containers to qualify as RCRA “empty.”
• Imposing structural integrity requirements for used containers before they are shipped offsite.
• Expanding labeling, record-keeping, and certification requirements for used container generators.
• Establishing requirements for drum reconditioners to qualify for Subtitle C permit exemptions, such as drum screening procedures, separate storage areas for non-RCRA “empty” containers, rejected shipment procedures, discrepancy reports, and container management plans.
• Requiring a Subtitle C permit or variance for drum reconditioners.
• Enhancing requirements for characterizing, managing, and disposing rinsate from drums that have held hazardous waste.
• Developing air emissions standards and permitting requirements under RCRA authority for drum furnaces at drum reconditioning facilities.
• Encouraging the development and implementation of industry-coordinated standard operating procedures for used container generators, transporters, and reconditioners.

EPA is also requesting information generally on related state compliance assistance programs and industry initiatives that may facilitate the reduction of non-RCRA “empty” containers, as well as on technological developments that can reduce the environmental and public health risks believed to be associated with drum reconditioning.

Despite EPA’s high-level branding of the proposed rulemaking as a drum reconditioning issue, several of the proposed regulatory changes could have far-reaching consequences for a range of businesses, including industrial facilities and smaller retail operations, as well as waste transporters and treatment, storage, and disposal facilities.

The comment deadline for the Advance Notice of Proposed Rulemaking is September 25, 2023.

For more information about EPA’s Advanced Notice of Proposed Rulemaking on the regulation of used containers under RCRA, please contact Aaron, Gus, or Nicole.

Beveridge & Diamond's Waste and Recycling practice group assists clients in a wide range of industrial sectors with solid and hazardous waste regulatory issues under RCRA, its state counterparts, international treaties, and the laws and regulations of countries around the world. We regularly help clients in classifying their wastes as hazardous or non-hazardous, as well as in determining whether materials are wastes in the first instance and in assessing the potential applicability of regulatory exclusions or exemptions. We have been lead counsel in many cases challenging key portions of EPA’s definition of solid and hazardous wastes under RCRA, and defend companies in related enforcement actions.