RIPA SPECIAL BULLETIN 2018
RIPAU.S. EPA AFFIRMS KEY INDUSTRY POSITIONS ON EMPTY CONTAINER RULE
In a recent letter to RIPA President Paul Rankin, the U.S. Environmental Protection Agency said it
agrees with the association’s interpretation of the federal empty container rule concerning the
processing and management of RCRA-empty containers. This means that RCRA-empty containers
are not subject to hazardous waste regulation when they are received or reconditioned.
“This letter represents an extremely important victory for the entire U.S. reconditioning industry,”
said RIPA President Paul Rankin. “EPA has made clear the fact that empty containers that meet
the RCRA-empty standard are not regulated as hazardous waste when transported to a
reconditioner or processed at a reconditioning facility,” he said. In other words, said Rankin,
federal EPA does not agree with the position taken by the Wisconsin Department of Natural
Resources and Region V EPA that simply removing residue of a regulated material from a container
during the reconditioning of RCRA-empty containers is the treatment of a hazardous waste.“I am gratified that EPA was willing to listen to our views on these matters and, of course,
delighted that they decided the long-standing interpretation of the RCRA-empty standard is both
correct and reasonable,” Rankin noted.
EPA Assistant Administrator Susan Bodine told RIPA that the Agency would “continue to act consistently with its longstanding position on the issue of what is RCRA-empty” and that, as stated in the RCRA regulations “[a]ny hazardous waste remaining in . . . an empty container . . . is not subject to regulation” under the RCRA provisions applicable to the generation, transport, treatment, storage, and disposal of hazardous waste. Assistant Administrator Bodine explained that this means “the ‘mere act of cleaning residue’ from a RCRA-empty container” is not “the treatment of hazardous waste, requiring a RCRA treatment permit.”
With respect to the handling and management of “heavy” containers, which have never been specifically addressed in any Agency regulations or guidance, Assistant Administrator Bodine’s letter is a bit more ambiguous. She states that whether the container and its contents
appropriately are characterized as a “waste” that has been discarded by the customer will depend on “case-specific facts.” We believe that the Agency is preserving its options with respect to heavy container management practices. However, Bodine also states that her comments “are consistent with long-standing agency practice.” We view the latter statement as signaling that, at least under the current leadership, the Agency would not support or endorse an enforcement action that seeks to penalize a facility that has consistently followed sound and long-standing industrypractices, i.e., the Agency will look to how the facility and its customers handle such containers. Importantly, Bodine made a point of offering a “continuing dialogue with RIPA and other interested parties” on this issue, both as an expression of appreciation for RIPA’s input on the application of the RCRA regulations to the reconditioning industry and as a genuine offer of willingness to work with RIPA and its customers to foster compliance with the regulations.
Going forward, the EPA decision means that reconditioning facilities that process RCRA-empty containers will not be subject to regulation as hazardous waste treatment, storage or disposal facilities. However, the subject of how “heavy” containers are managed, both by customers and reconditioning facilities, remains something of an open question. Nonetheless, as noted, EPAnrecognizes that the burden of regulatory compliance for the transportation of empty containers falls on the provider (i.e. container emptiers), and they have purposefully opened the door to discussions on this important question; even providing RIPA with the names of specific agency personnel to call.
RIPA plans to open a dialogue with EPA in the very near future regarding the management of “heavy” containers.
A copy of the EPA letter to RIPA, as well as a summary of the letter prepared by the law firm Morgan Lewis are attached. Please call the association if you have questions.
