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Polsinelli - Environmental and Natural Resources

September 2013


EPA Heightens RCRA Scrutiny for Product Storage


Environmental and Natural Resources Professionals:


Lucas J. Narducci

Practice Area Chair


Tiffany J. Andersen
John D. Burnside
Marissa L. Curran
William J. Curtis
Barton D. Day
Christopher E. Erker
Michael C. Ford
Troy B. Froderman
Tracy Hammond
Adam P. Hawkings
Maribeth M. Klein
Mitchell J. Klein
Margaret B. LaBianca
Anna "Anya" P.B. Mallett
Anthony W. Merrill
John D. Petersen
Amanda A. Reeve
Frances R. Sjoberg
Harry Sporidis
Megan H. Tracy
Adam R. Troutwine
Andy Wright
Scott A Young


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EPA has released a new guidance and check list encouraging RCRA inspectors to take a very liberal view of the extent of their jurisdiction over product material generally not considered to be subject to RCRA regulation. In short, the guidance suggests that RCRA inspectors should expand the scope of their inspections to include product storage areas, and should respond to housekeeping issues by presuming that product material that is not being stored "appropriately" in the view of the inspector is actually discarded material potentially subject to regulation as hazardous waste. In such situations, the guidance envisions follow-up through relatively intrusive scrutiny and information requests.

The new guidance appears to reflect a significant and legally questionable shift in EPA's view of the appropriate rules of engagement concerning the RCRA regulation of product material. From a practical standpoint, the guidance suggests a need for regulated parties to keep close track of all material in inventory (including raw materials, product materials, and commercial products used in maintenance or other on-site activities), and to review their housekeeping practices with respect to such materials.

In view of the new guidance, manufacturers will need to respond carefully to compliance inquiries concerning product materials.

Click here for the new RCRA guidance.

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