Drumming Up a Change? EPA’s Review of the RCRA “Empties” Rule and Its Impact on Generators and the Drum Reconditioning Industry

EPA recently initiated a rulemaking process aimed at reviewing how empty industrial drums are regulated under the Resource Conservation and Recovery Act (RCRA).  This is a move which could have significant implications for businesses generating, managing, or reconditioning used containers. In late 2023, EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) seeking public comments from industry stakeholders on potential regulatory and/or non-regulatory options to address what EPA sees as unacceptable risks associated with reconditioning of RCRA empty drums.

The ANPRM stems from a 2022 EPA Drum Reconditioner Damage Case Report, which highlighted environmental, health and safety incidents linked to drum reconditioning facilities across the country. While EPA is considering regulatory changes, the likelihood of actual rulemaking remains uncertain, particularly in light of this Administration’s directive to limit new regulations and guidance.

The Current RCRA Empties Rule: A Regulatory Baseline

Under 40 CFR § 261.7, containers that once held hazardous waste are considered “RCRA empty” and no longer subject to RCRA regulations if they meet specific criteria:

• All wastes must have been removed to the extent possible using “practices commonly employed” to remove wastes from the particular type of container (i.e., pouring, pumping, aspirating); and
• No more than 2.5 centimeters (one inch) of residue may remain on the bottom of the container; or
• Either no more than 3 percent by weight of the total capacity of the container may remain in the container if the container is less than or equal to 119 gallons in size; or
• No more than 0.3 percent by weight of the total capacity of the container may remain in the container if the container is greater than 119 gallons in size.

This standard has long provided a clear and practical framework for generators of empty containers, such as manufacturers, chemical processors, and industrial facilities. Once a drum meets the RCRA-empty criteria, it can be sent for reuse or disposal without being classified as hazardous waste.

The ANPRM: A Push for Stricter Controls?

The 2022 EPA Damage Case Report identified many cases where reconditioning facilities received drums with residual hazardous waste, leading to soil and water contamination and employee injuries. In response, the 2023 ANPRM presents regulatory and non-regulatory options for addressing the risks associated with RCRA empty drums.

Suggested regulatory changes applicable to drum generators include the following:

• Reducing the “one-inch” regulatory limit for defining RCRA empty;
• Requiring rinsing for all containers prior to being considered RCRA empty; and
• Requiring certification of empty drums prior to shipment, employee training, and labeling and documentation of hazards posed by drum residues.

Potential regulatory changes applicable to drum reconditioners include:

• Requiring SOPs for screening drums prior to acceptance, designated non-RCRA empty container storage areas, rejected shipment procedures, discrepancy reports, and container management plans;
• Requiring waste analysis plans for characterizing rinsate; and
• Requiring reconditioners to conduct inspections and maintain inventory of all drums.

Critics of the proposed measures have argued that such regulatory changes would dramatically increase compliance burdens on generators, increase operational costs, and potentially increase overall risk associated with hazardous waste residues.

Public Comments: Industry Trends

The public comment period on the ANPRM revealed common concerns amongst industry regarding potential changes to RCRA empty regulation.  First, industry comments favored non-regulatory options over regulatory ones. Because EPA cited to no record of significant noncompliance with the “empties” rule by generators, and because the 2022 Damage Case Report focus solely on issues at drum reconditioners, commentors agreed the more appropriate response is issuance on EPA Guidance directed specifically to the drum reconditioning industry.

Next, commentors generally opposed reduction of the “one-inch” regulatory limit for defining RCRA empty containers.  Commentors note the one-inch measurement is standard, easily identifiable, and enforceable (i.e., no confusion).  Generators and drum reconditioners not complying with the one-inch limit are currently subject to enforcement and EPA should focus efforts on compliance. According to these commentors, requiring generators to remove additional waste could actually increase the risk of releases.

Finally, commentors opposed requirements for rinsing all containers prior to being considered empty.  Here again, they argue, such a requirement increases the risk of releases at the generator (mixing hazardous wastes and rinse waters) and increases risks to health and safety of employees.  Further, they point to Publicly Owned Treatment Works (POTW) ordinances that prohibit disposal of hazardous waste, which could result in rinsate being solidified and disposed of in hazardous waste landfills at great expense.   

Rulemaking vs. Guidance: What’s Likely to Happen?

While EPA is reviewing public comments, the likelihood of a formal rule change is low. President Trump’s 10-to-1 Regulatory Executive Order, which requires agencies to identify 10 existing regulations to be repealed for every 1 new regulation, may significantly limit EPA’s ability to amend the RCRA empties rule or even issue industry guidance on the issue (the 10-to-1 EO specifically applies to “guidance” as well). However, given that EPA is not required to engage in the public rulemaking process to issue agency guidance, the agency may attempt to draft policy documents, fact sheets, or guidance aimed at clarifying best practices for drum reconditioners.

For generators of RCRA empty drums, it is advisable to stay engaged in the rulemaking process and monitor EPA’s action. Whether through formal regulation or agency guidance, changes in how RCRA empty drums are managed and regulated could significantly impact compliance obligations and costs.

Used Drum Management and Reconditioning Advance Notice of Proposed Rulemaking, 88 Fed. Reg. 54537 (Aug. 11, 2023)