In earlier articles I wrote of the regulatory requirement for a facility that generates any solid waste to conduct a hazardous waste determination: The Hazardous Waste Determination and the basis for making the hazardous waste determination. To summarize both articles, a generator of a solid waste must determine if the waste is a hazardous waste and if any applicable exemptions or exclusions exist. This determination may be based on the analysis of a representative sample of the waste by an approved lab and test method (analysis-based), or it may be based on the generator’s knowledge of the raw materials and processes involved (knowledge-based). Either way, the generator must document not only the results of the determination (ie. hazardous or non-hazardous) but also the basis for that determination. The purpose of this article is to make known the USEPA requirements for maintaining records of the hazardous waste determination.
Pursuant to 40 CFR 262.40(c) a Large Quantity Generator of hazardous waste must maintain as a record any documents used in making the hazardous waste determination:
A generator must keep records of any test results, waste analyses, or other determinations made in accordance with § 262.11 [the hazardous waste determination] for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal.
A Small Quantity Generator of hazardous waste is subject to 40 CFR 262.40(c) as well by way of §262.44(a). A Conditionally Exempt Small Quantity Generator is required to complete the hazardous waste determination, but is not required to maintain a record of it. However, I think it a good practice for CESQG’s to maintain a record of their hazardous waste determination as if they were subject to §262.40(c).
Note that neither of the two types of hazardous waste determinations – knowledge-based or analysis-based – is specifically referenced in §262.40(c). Instead, reference is made to, “…test results, waste analyses, or other determinations…” Notice also that the regulations do not specify what exact documents or information should be kept as a record. What follows is my determination of acceptable information gleaned from guidance documents created by the USEPA and various states. Be sure to check with your state to confirm if this information will meet its requirements.
Recordkeeping for Analysis-Based Determination (ie. test results and waste analyses):
If a representative sample of the solid waste is collected and submitted for analysis, a record should be kept of all of the data generated by that process. Data should include:
- Description of site or unit from which the sample was taken.
- Description of the suspect waste material sampled.
- Sample locations.
- Sample size (number of samples).
- Sample type (eg. grab, composite).
- Method of sampling and equipment used for sampling.
- Sampling techniques (method of collection, containers and preservatives – if any – used, seals).
- Describe the chain of custody. Include timing issues for sample collection, handling, and analysis.
- Rationale for sampling method (how will the sampling technique used accurately reflect the waste stream?).
- Confirmation the laboratory complies with the QA/QC Reasonable Confidence Protocols.
- Analytical methods used by the lab and results of analysis.
You may rely on a knowledge-based determination to eliminate some potential parameters for analysis. For example, if your knowledge of the waste and process leaves you confident that no RCRA metals are present in the waste, then you need not run for those parameters. In that case, you must document and keep a record of the knowledge you relied on to determine that analysis for RCRA metals was not necessary.
Recordkeeping for Knowledge-Based Determination (ie. “…or other determinations…”):
If knowledge is used to make the hazardous waste determination, the rationale for that determination should be adequately documented. The determination must be valid, correct, and supported by documentation, especially when that determination is that the waste is not a hazardous waste or does not carry certain waste codes. Documentation in this case should include, but is not limited to:
- Specific information about the chemical(s) or material(s) that make up the waste such as chemical and physical properties from published or documented sources (eg. the MSDS or SDS).
- Information about the process generating the waste and any affects it has on the waste. Does the material/product pick up additional hazardous constituents (contaminants) during the generation process? Does the process make the waste more dilute? More concentrated? More contaminated?
- If any regulatory exemptions or exclusions are claimed, you should have the applicable regulations, agency guidance documents, and agency interpretations to justify the claim.
- Any test data not referenced in USEPA regulations for hazardous waste determination. For example, a litmus paper test to determine pH is considered a knowledge-based determination. Or, if you rely on the less expensive and faster Totals analysis instead of TCLP to determine the hazardous waste characteristic for Toxicity.
- If you have conducted a thorough hazardous waste determination for a similar wastestream and wish to apply it to another, that may suffice as long as you have the necessary documentation. Make certain you can demonstrate – and maintain a record of – your justification for using the results from a similar wastestream.
- Any information used to eliminate from analysis certain waste parameters. For example, not preforming analysis for the Toxic characteristic for pesticides and herbicides if you are able to demonstrate they are not present.
- Any other documents that may support your determination: hazardous waste manifests, product labels, technical data sheets, etc.
It is vitally important that you have a record of the documents to justify your hazardous waste determinations; whether the waste in question is hazardous or not. Aside from agency fines and violations for not having the documentation, your compliance with the RCRA regulations begins with the hazardous waste determination. If it’s wrong, then it’s likely that your management of the waste is wrong as well. At my Training Seminars I spend a lot of time going over the many steps in the hazardous waste determination and all the different pathways it can lead you down. Please don’t hesitate to contact me with any questions you may have about the hazardous waste determination, the recordkeeping requirement of 40 CFR 262.40(c) or the remainder of the RCRA regulations.