The Backlog of Containerized Hazardous Waste Needing Incineration

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About the Hazardous Waste Incinerator Backlog of Containerized Hazardous Waste

In early June 2021, EPA became aware that some commercial hazardous waste incinerators were informing their customers (hazardous waste generators) that they would no longer accept containerized hazardous waste designated for incineration, due to a backlog at their facilities. In response, on August 10, 2021, EPA published a memorandum (RCRA Online number 14939) outlining a number of existing regulatory options that authorized state agencies and EPA regional offices could use to mitigate these compliance challenges, as well as a number of best practices generators and hazardous waste treatment, storage, and disposal facilities could use. In the memo, EPA clarified that the regulations allow states and EPA regions to grant hazardous waste generators multiple consecutive extensions to the accumulation time limits if the generators meet the conditions in Title 40 of the Code of Regulations in section 262.16(d) or section 262.17(b).

We outline options in the August 10, 2021, memorandum to explain existing regulatory options that are and remain available. That is, states and EPA regions that implement the hazardous waste program may continue to grant multiple consecutive accumulation time limit extensions to hazardous waste generators on a case-by-case basis. The interpretation has no sunset date and remains in place independent of the current incinerator backlog that prompted EPA to issue the interpretation. However, it is important to remember that generators must meet the conditions for an extension before the extension can be granted, and any extension is at the discretion of the states and regions who evaluate extension requests. Some states have more stringent interpretations and do not allow consecutive accumulation time limit extensions, so it is important for generators to contact their state hazardous waste agency as soon as practicable.

Frequent Questions and Answers

The incinerator backlog has persisted longer than initially anticipated, prompting EPA to remain in frequent contact with affected parties. Below are answers to frequent questions from our discussions:

Hazardous Waste Generators

  1. Does the August 10, 2021, memo remain in effect?
    • Yes. RCRA Online number 14939 outlines a number of existing regulatory options that states and EPA regions can use to mitigate the challenges the incinerator backlog is creating, as well as best practices for hazardous waste generators and treatment, storage and disposal facilities. The regulatory interpretations remain in place and have no sunset date.  
  2. I’m approaching my 90/180-day accumulation time limit and I can’t find someone to pick up my hazardous waste. Can I request an extension?
    • Yes. You should contact your state hazardous waste agency as soon as you know you have an issue. Authorized implementing agencies may grant extensions to address “unforeseen, temporary, and uncontrollable circumstances” at their discretion on a case-by-case basis. They may grant individual 30-day extensions.
  3. I received a 30-day extension, but still can’t find someone to pick up my hazardous waste. Can I request a subsequent extension?
    • Yes. Authorized implementing agencies are in the best position to determine on a case-by-case basis whether consecutive extensions are appropriate, and in some states, this is an established practice. Although federal regulations do not limit the number of extensions, each extension request must meet the criteria in the regulations. Some states have more stringent interpretations, however, and do not issue consecutive accumulation time limit extensions.
  4. I’m a small quantity generator of hazardous waste. Do I have 180 days or 270 days to accumulate my hazardous waste?
    • SQGs may accumulate hazardous waste on site for 180 days or fewer without a permit. However, if an SQG needs to transport their hazardous waste 200 miles or more for off-site treatment, storage, or disposal, they may accumulate their hazardous waste up to 270 days per 40 CFR section 262.16(c). The 270-day accumulation provisions are self-implementing, which means that SQGs do not need to notify their state that they are taking advantage of this flexibility. However, we recommend the SQG keep records that document their situation.  
  5. My incinerator doesn’t have a slot for me, but my waste management company or broker says they’ll still take my hazardous waste. Is it safe to ship it without knowing where or when it will be incinerated?
    • It is more protective for generators to keep their hazardous waste on site rather than on the road or at transfer facilities that have far fewer protections than a generator or permitted TSDF. Another option is for generators to send the hazardous waste to Resource Conservation and Recovery Act permitted storage facilities for temporary storage instead.
  6. How do I safely manage my hazardous waste while it remains on site during an extension?
    • If your state or EPA region grants an extension, make sure you comply with any additional protections they require in addition to continuing to comply with the applicable requirements in 40 CFR part 262 for hazardous waste generators. In addition, facilities may consider performing additional inspections, installing secondary containment, and/or alerting local emergency services.
  7. What should I do if the hazardous waste I shipped did not reach the designated facility in time?
    • You have to submit an Exception Report. Large quantity generators and SQGs have different requirements.
      • If an LQG does not receive a signed copy of the manifest within 35 days, they are required to contact the transporter and/or the owner or operator of the designated facility to determine the status of the hazardous waste. If they have not received a signed copy of the manifest within 45 days of the date the initial transporter accepted the hazardous waste, they must also submit an Exception Report to their implementing agency. Refer to 40 CFR section 262.42(a).
      • If an SQG does not receive a signed copy of the manifest within 60 days of the date the initial transporter accepted the hazardous waste, they must submit a copy of the manifest to the implementing agency with some indication that they have not received confirmation of delivery. Refer to 40 CFR section 262.42(b).
  8. I’m a healthcare facility and am concerned that I will not be able to ship my hazardous waste pharmaceuticals off site when I reach the one-year accumulation limit under 40 CFR part 266 subpart P. Can I request an extension to the one-year accumulation period?
    • There is no regulatory mechanism under 40 CFR part 266 subpart P to request an extension to the one-year accumulation period for hazardous waste pharmaceuticals. So, it is important to begin planning pickups of hazardous waste pharmaceuticals well in advance of the one-year accumulation limit. Another option for healthcare facilities to explore, if they cannot secure an incinerator slot, is to send the hazardous waste pharmaceuticals to a RCRA permitted storage facility. We outline further management options for very small quantity generator healthcare facilities in the March 10, 2023, memo (RCRA Online Number 14959).
  9. I have other hazardous waste that doesn’t need to be incinerated and isn’t impacted by the backlog. Does my accumulation extension apply to that waste too?
    • No. Accumulation time limit extensions only apply to waste that meets the criteria for an extension. Generators must continue sending hazardous waste that does not meet the criteria for an extension to a designated facility in accordance with their routine regulatory accumulation time limits.
  10. I have hazardous waste that I typically send for incineration, but it doesn’t have to be incinerated. What should I do?
    • EPA encourages generators to consider waste minimization, hazardous secondary materials recycling (hazardous waste recycling), and other allowable disposal options. 
  11. Is there anything I can do to ensure that my hazardous waste is picked up in a timely manner for incineration?
    • Representatives from commercial incinerators have told EPA that processing containerized waste they receive is time intensive and contributes to the backlog of containerized waste. Some of the practices the representatives identified as helpful are accurately identifying and sorting your waste upon generation and using containers that are more amenable to incineration. Some vendors may offer services to streamline your hazardous waste management practices, so that you might secure an incinerator slot in a timely manner. Contact your vendor for further information about how you can help.
  12.  Will there ever be an increase in hazardous waste incineration capacity?
    • Yes. Industry is currently working to bring more commercial hazardous waste incineration capacity online.

States and EPA Regions that Implement RCRA

  1. Should states and EPA regions require additional protections for hazardous waste that is accumulated on site during a generator’s extension?
    • EPA recommends that the implementing agency consider site-specific factors, such as whether any adjustments need to be made to a generator’s hazardous waste management, when approving an extension request. In some cases, there may not be any need for specific changes to generator practices beyond common sense precautions. In other cases, adjustments to prevent any potential releases might be necessary, such as increased central accumulation area inspections, temporary secondary containment, and/or alerting local emergency responders that there will be more hazardous waste on site.
  2. What information should states and EPA regions request as proof that a generator cannot ship their containerized hazardous waste off site to a permitted incinerator or TSDF?
    • An example of proof may be letters to the generator from permitted hazardous waste incinerators stating they will not accept the generator’s hazardous waste due to the backlog for incinerating containerized hazardous waste.

Hazardous Waste Transporters

  1. Can I request an extension to the 10-day time limit for transfer facilities?
    • No, there is no regulatory mechanism to request extensions at transfer facilities.

Hazardous Waste Treatment, Storage, and Disposal Facilities

  1. As a permitted storage facility, can I store containerized waste that I generate for longer than 90 days without a permit modification?
    • Yes, there are two options for TSDFs that are also generators. First, you may store the hazardous waste in your permitted storage area if your existing RCRA permit allows for such storage activities. TSDFs may be capable of storing backlogged containerized waste absent permit modifications if: 1) their RCRA permit allows storage of those types of containerized hazardous wastes and hazardous waste codes; and 2) their RCRA permitted container storage capacity is not exceeded. Alternatively, you may contact your state hazardous waste agency to request a 30-day extension of your generator accumulation time limit for your generator central accumulation area.
  2. Can I request an increase of my permitted container storage capacity?
    • Yes. You can use relevant permit modification procedures in 40 CFR section 270.42. States and EPA regions would process modifications to increase container storage capacity pursuant to either Class 2 or Class 3 permit modification procedures, depending on the requested amount of increase in container storage capacity and whether the containerized waste would require additional or different management practices from those authorized in the permit. Both Class 2 and Class 3 permit modification procedures require public comment on the proposed changes.
  3. I only need to increase my permitted container storage for a limited time. Can I request a temporary authorization instead of a Class 2 or 3 modification?
    • Yes. TSDFs may also request to implement changes to their allowable container storage practices pursuant to expedited procedures referred to as temporary authorizations. Under the regulations at 40 CFR section 270.42(e), authorized states and EPA regional offices may temporarily authorize a permittee for certain activities that would be the subject of a Class 2 or Class 3 permit modification. Requests for temporary authorization must demonstrate that such activities are compliant with 40 CFR part 264 standards and also meet the qualifying criteria in section 40 CFR section 270.42(e) for approval.
  4. Can I request an extension to my temporary authorization?
    • Yes. Temporary authorizations are limited to 180 days. A state or EPA region may reissue a temporary authorization for one additional term of up to 180 days provided that the permittee has requested a Class 2 or 3 permit modification for the activity covered in the temporary authorization, subject to the criteria in 40 CFR section 270.42(e)(4).
  5. What should I do if I think I may need to request a permit modification or temporary authorization?
    • EPA strongly encourages TSDFs to inform their regulatory agencies as soon as possible if they anticipate needing temporary authorizations or permit modifications to address the storage of temporarily backlogged containerized hazardous waste needing incineration. In addition, TSDFs should also provide timely, complete, and adequate information supporting their requests, including information regarding the urgent nature of the situations.
  6. Can I request an emergency permit to address excess containerized waste?
    • States and EPA regions may issue emergency permits when they find that an imminent and substantial endangerment to human health or the environment exists, in accordance with the requirements of 40 CFR section 270.61. Emergency permits can address storage of hazardous waste at RCRA permitted TSDFs as well as hazardous waste at RCRA generator sites. In general, EPA does not expect storage of excess containerized wastes to present an imminent and substantial endangerment to human health or the environment. However, we acknowledge that rare situations could arise where the use of an emergency permit may be appropriate and implementing agencies should evaluate these situations on a case-by-case basis.

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Last updated on February 26, 2024