Can an arrangement can be established where a third party collects recalled airbag waste from multiple generators (typically dealerships or repair facilities) and transports the waste to a central location where it is accumulated and stored by the third party before being transported to Clean Water Environmental (CWE) to be processed for recycling and disposal.
On November 30, 2018 EPA issued an Interim Final Rule that exempts airbag waste from RCRA generator standards provided certain conditions are met. One of those conditions is that the airbag waste is sent directly to either (1) an “airbag waste collection facility” under the control of a vehicle manufacturer or their authorized representative or an authorized entity conducting a recall remedy program, or (2) a “designated facility” such as CWE. Because an airbag waste collection facility is defined as one holding the airbag waste for more than 10 days, a location could be used to accumulate airbag waste provided it was held less than 10 days and thus considered to be in transit and subject only to Department of Transportation (“DOT”) transportation regulations.
Analysis of Conditional Exclusion from RCRA Regulation for Airbag Waste Handlers
1. Environmental Protection Agency Requirements
EPA issued the November 2018 Interim Final Rule in recognition of the fact that imposing full hazardous waste regulatory requirements on recalled airbags (i.e., recalled airbags that were installed in automobiles for sale and subsequently removed without being activated/deployed) would likely slow down the recall process, resulting in greater (rather than lesser) risks to human health and the environment. EPA specifically noted that automobile dealers, salvage vendors, and others involved in removing/replacing recalled airbags would frequently generate volumes of recalled airbag wastes such that they would be categorized into higher RCRA generator categories. According to EPA, these entities generally lack familiarity and experience with the requirements for these higher RCRA generator categories and might slow down or even stop removing airbag inflators to avoid the increased regulation. The result could be a substantial increase in the number of recalled airbags continuing to be used, and an increase in the number of potential incidents involving such airbags.
To prevent these effects, the Interim Final Rule establishes a conditional exclusion from RCRA regulation for airbag wastes while such wastes are in the hands of a generator of airbag waste, (“airbag waste handler”) or are being transported from such a handler to an “airbag waste collection facility” or to a “designated facility” (i.e., a permitted hazardous waste treatment, storage, or disposal facility (“TSD”)). The conditional exclusion applies to all airbag wastes collected from auto dealers or other airbag waste handlers, not just the airbags affected by the Takata recalls and preservation orders.
The following five conditions must be satisfied for the exemption to apply:
- The airbag wastes must not be accumulated in quantities of more than 250 airbags (corresponding to a small truckload) or for more than 180 days.
- The airbag wastes must be packaged in a container designed to address the associated risks and labeled “Airbag Waste – Do Not Reuse.”
- The airbag waste must be sent directly to either an airbag collection facility in the U.S. that is under the control of a vehicle manufacturer, an authorized representative of a vehicle manufacturer, or an authorized party administering a remedy program in response to a NHTSA recall, or to a designated facility.
- Transportation of the airbag waste must comply with applicable hazardous materials transport rules issued by the U.S. Department of Transportation.
- The airbag waste handler must keep detailed records of all off-site shipments and confirmations of receipt from the receiving facility.
Because airbag waste managed in accordance with these conditions is exempt from regulation through transport to the airbag waste collection facility or designated facility, the waste first becomes subject to regulation when it arrives at such facility. The facility thus becomes the “generator” of the waste, subject to all applicable RCRA generator requirements. If the facility sends the airbag waste to a facility other than specified in the conditional exemption, it will have to do so using a hazardous waste transporter and hazardous waste manifest, and the receiving facility for that shipment will be subject permitting requirements as a TSD.
2. U.S. DEPARTMENT OF TRANSPORTATION REQUIREMENTS
Even if the airbags qualify for the Interim Final Rule, they will need to comply with the requirements in the U.S. Department of Transportation regulations. Air bag inflators, modules, and seat belt pretensioners are required to comply with the following three requirements when being transported to a recycling or waste disposal facility:
- Shipping Papers: The word “Recycled” must be entered on the shipping paper immediately after the basic description prescribed in Section 172.202.
- Specification and non-specification steel drums with a wall and lid thickness not less than 20 gauge. The lid must be securely affixed with a lever-locking or bolted-ring assembly. The lid of the drum must provide ventilation of the drum contents in a fire. The drum may be filled with any combination of air bag inflators, air bag modules, or seatbelt pretensioner devices to a capacity not greater than fifty (50) percent of the drum’s total volume. In addition, inner packaging or cushioning may not be used to fill the void space.
- Outer packaging consisting of 4H2 solid plastic boxes or non-specification rugged reusable plastic outer packaging and inner static-resistant plastic bags or trays. If not completely enclosed by design, the container or handling device must be covered with plastic, fiberboard, metal, or other suitable material. The covering must be secured to the container by banding or other comparable methods. The articles must be packed to prevent movement within the container during transportation.
- Labeling: Each package must display a Class 9 label.
3. U.S. DEPARTMENT OF TRANSPORTATION EXEMPTION FROM ATF REGULATION
Although the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) regulates explosive materials, the transportation of explosive materials via railroad, water, highway or air regulated by the U.S. Department of Transportation are exempt from ATF regulation. 18 U.S.C. 845(a)(1).
State by State Adoption of Federal Hazardous Waste Rules
Unlike most RCRA regulations, which become effective 6 months after publication in the Federal Register, the EPA Interim Final Rule became effective immediately upon publication. However, that effective date applies only in the few states that do not have their own authorized RCRA hazardous waste programs (Alaska and Iowa) or in states that automatically adopt new federal RCRA hazardous waste rules (Pennsylvania and New Jersey).
In other states such as Ohio, the new rule does not take effect until it is adopted by the state. This is not required of the states, because a federal rule can make the RCRA program within a specific state less stringent than its own state rules.
EPA notes that some states might informally allow compliance with the conditional exemption before formally adopting it, in which case EPA would “not generally consider such implementation a concern for purposes of enforcement.” This appears to be the case in Ohio, which has taken action to adopt the Interim Final Rule but also issued an order that evidences its agreement with it.
 Safe management of Airbags, 83, FR 61552, November 30, 2018. https://www.federalregister.gov/documents/2018/11/30/2018-25892/safe-management-of-recalled-airbags
 According to Ohio EPA they proposed rules adopting the Interim Final Rule the week of July 13, 2020. Ohio EPA also indicated they would be flexible if an entity wanted to utilize the Interim Final Rule before adopted in Ohio.
 In the Matter of SES-R1, LLC, Ohio EPA Director’s Final Findings and Orders, 2/13/20