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The Hazardous Waste Determination for a Waste that Changes from Non-Hazardous to Hazardous

The Hazardous Waste Determination for a Waste that Changes from Non-Hazardous to Hazardous

A generator of any solid waste is required to complete a hazardous waste determination according to the procedure at 40 CFR 262.11.  This determination is typically made at the point of generation, ie., at the moment the solid waste is first generated.  However, a generator’s responsibility to complete the hazardous waste determination may continue beyond the initial point of generation if the solid waste may later undergo a chemical or physical change.

For most wastes the determination made at the point of generation is sufficient since the waste is unlikely to change in a way that affects its nature as a listed and/or characteristic hazardous waste.  Some solid wastes, however, may undergo a change to their chemical or physical nature after thepoint of generation, two examples:

  • Example 1:  a solvent (60%) and water (40%) mixture is neither a listed nor characteristic hazardous waste at its point of generation.  After a period of time, however, the waste phase separates into a layer of solvent (D001 Ignitable hazardous waste) and water.
  • Example 2:  a sludge that exhibits a characteristic of Toxicity as it settles out of a non-hazardous waste accumulated in a tank.

Any waste that may change after its point of generation, and especially those that may change from a non-hazardous waste to one that is hazardous (either listed or characteristic) will require on-going monitoring by the generator along with a responsibility to conduct a subsequent hazardous waste determination.

As the generator of a solid waste that could potentially be a hazardous waste you are responsible to know the physical and chemical properties of your waste.  This includes an awareness of the possibility of any changes to its chemical or physical nature after the point of generation.  The actions you will be required to take will depend upon when the change to the waste may occur.

  • If such change occurs while the waste is under your control, then you must conduct a subsequent hazardous waste determination.  If this later hazardous waste determination reveals the waste is now a listed hazardous waste or exhibits the characteristic of a hazardous waste, then you must manage it as a hazardous waste as required by your hazardous waste generator status.
  • If you have reason to believe such a change may occur after the possession of the waste has been transferred to a carrier or Treatment Storage and Disposal Facility (TSDF), then it is your responsibility to make them aware of the waste’s capacity for change and the need to continue to monitor for those changes.
  • Another, more conservative option is to mange the waste as a hazardous waste immediately at the point of generation, even though it is not yet a hazardous waste.  I would only recommend this option if you are certain the waste will change into a hazardous waste at some later date prior to disposal.

The USEPA expects that as the generator of a waste you are knowledgeable about it’s hazardous waste properties (listed, characteristic, or none).

For more information on this topic, please refer to RO 14834.

Expand your knowledge of the RCRA regulations and reduce your chances of compliance violations with the right kind of training.  Please contact me for a free training consultation.