The regulations of the the Resource Conservation and Recovery Act (RCRA) apply generally to any hazardous waste generated, transported, treated, stored, or disposed of within the US. But what of a hazardous waste generated in waters off the coast of the US, perhaps on a vessel or an oil platform or rig? The purpose of this article is to explain the applicability of the hazardous waste regulations of the USEPA and the HazMat Transportation regulations of the USDOT/PHMSA to the generation and transportation of hazardous waste within and without US territorial waters.
First of all, RCRA regulations under either state or Federal authority consider each off-shore vessel or oil platform/rig to be a separate generation point of hazardous waste (RO11329). Each generation point will be subject to regulations for the hazardous waste it generates from Cradle to Grave, this means:
- From its point of generation on the platform, rig, or vessel: ie. “Cradle”.
- Through its transportation to port by vessel and perhaps beyond to its destination facility: ie. “to”.
- And its final destination identified on the Uniform Hazardous Waste Manifest, whether that is the port or some inland facility: ie. “Grave”.
The regulatory responsibilities include, but are not limited to:
- A hazardous waste determination.
- Identification of hazardous waste generator status.
- On-site management of hazardous waste according to generator status: labeling, closed container, inspections, accumulation time-limit, more…
- Emergency preparedness & prevention and the Contingency Plan.
- Training of hazardous waste personnel.
- Use of the Uniform Hazardous Waste Manifest for off-site shipments.
- Notification, reporting, and recordkeeping.
Note that some hazardous wastes generated from oil and gas exploration and production (such as on an oil platform or rig) are subject to an exclusion from regulation as a hazardous waste pursuant to 40 CFR 261.4(b)(5). If excluded, the waste would not be subject to any of the RCRA hazardous waste regulations.
The transportation of a hazardous waste by vessel is also subject to either the Hazardous Material Regulations (HMR) of the USDOT/PHMSA or the Dangerous Goods regulations of the International Maritime Organization (IMO). Compliance with these regulations will require the following at a minimum:
- Classification of the hazardous material/dangerous good.
- Selection of authorized packaging.
- Communication of hazards: shipping papers, placards (not applicable to vessels), HazMat labels, and markings.
- Load securement and segregation.
- Registration as a shipper or carrier of HazMat (if applicable).
- Provide emergency information.
- Train HazMat Employees.
- Comply with applicable level of HazMat Security.
The applicability of the regulations – state or Federal, US domestic or international – will depend on the location of the vessel or platform when the hazardous waste is generated.
A hazardous waste generated off-shore in the territorial waters of a state with an authorized hazardous waste program will be subject to that state’s regulations. If the state does not have an authorized hazardous waste program, then the Federal RCRA regulations will apply. Most – but not every – state has an authorized hazardous waste program. Currently, only Alaska, Iowa, and Puerto Rico lack authorization to manage the RCRA regulations within their own borders or off-shore waters. Iowa is land-locked, so for hazardous waste generated in the state waters of Alaska or Puerto Rico, the Federal regulations of the USEPA will apply. Whether under state or Federal authority, hazardous waste will be subject to RCRA’s Cradle to Grave regulations.
The transportation of a hazardous waste in state waters will be subject to the regulations of the USDOT/PHMSA as well as those of the USEPA (or authorized state). Therefore, the transportation of the hazardous waste within US territorial waters must comply with the regulations of the USDOT/PHMSA. Interestingly, the USDOT/PHMSA allows the use of international standards and regulations within US territory. Therefore, you may choose to transport the hazardous waste by vessel in compliance with the regulations of the IMO, as long as it does not conflict with the HMR which cannot be ignored whenever within US territory.
Hazardous waste generated within US territorial waters (approximately within 200 miles of shore), but outside of state waters, will be subject to the Federal RCRA regulations of the USEPA from Cradle to Grave.
The transportation of a hazardous waste in Federal waters will be subject to the regulations of the USDOT/PHMSA as well as those of the USEPA. Therefore, the transportation of the hazardous waste within US territorial waters must comply with the regulations of the USDOT/PHMSA. Interestingly, the USDOT/PHMSA allows the use of international standards and regulations within US territory. Therefore, you may choose to transport the hazardous waste by vessel in compliance with the regulations of the IMO, as long as it does not conflict with the HMR which cannot be ignored whenever within US territory.
Here is where things get more complicated. It is the opinion of the USEPA that a hazardous waste generated on a vessel or oil platform/rig outside of US territorial waters (>200 miles from shore) is not subject to Federal regulations (and therefore cannot be subject to state regulations) until it reaches a port within US territory at which point the applicable state or Federal RCRA regulations would apply (Federal regulations if the port is in Puerto Rico or Alaska, state regulations if located in any other US State). This means that the hazardous waste does not automatically become subject to USEPA regulations when it crosses into US territorial waters. A port within US territorial waters, once reached by the vessel transporting the hazardous waste, becomes the “Cradle” in the hazardous waste’s Cradle to Grave management.
The hazardous material transportation regulations of the USDOT/PHMSA, however, apply to the hazardous waste as soon as it enters US territory. Therefore, when in US territorial waters the hazardous waste must either comply with US domestic regulations (the HMR) or with the regulations of an authorized international organization such as the IMO. Remember that compliance with the IMO regulations alone will not suffice within US territory, you must also comply with the HMR. However, the regulations of the IMO and the USDOT/PHMSA are generally harmonious, so dual compliance should not pose an insurmountable challenge.
Out-of-sight (off-shore) does not mean out-of-mind to the USEPA, authorized states, or the USDOT/PHMSA. Depending on where the hazardous waste is generated and where it is transported to it could be subject to a variety of international, state, and federal regulations. No matter when they go into affect, the hazardous waste regulations and the HazMat transportation regulations will require you to provide training for your employees: Hazardous Waste Personnel Training and HazMat Employee Training. Please don’t hesitate to contact me with any questions you may have about these regulatory training requirements.
For more information refer to the following RCRA Online FAQ’s:
- How does one transport hazardous wastes from an off-shore oilrig to port? Which agency has jurisdiction? Do the wastes need to be manifested while on water? (NOTE: Once on-shore, RCRA regulations are being implemented.)
- Do the RCRA hazardous waste regulations apply to wastes generated on an oil platform in the Gulf of Mexico?