The phrase “Commercial Chemical Product” is used in two critical positions in the hazardous waste regulations of the USEPA. In either position it may play an important role in your Hazardous Waste Determination which is required by 40 CFR 262.11 for all waste you generate. The purpose of this article will be to explain the difference in USEPA’s interpretation of this phrase in its two locations and how its interpretation might affect your hazardous waste determination.
As noted above, the phrase: “Commercial Chemical Product” appears in two locations of the USEPA’s RCRA regulations:
- Table 1 in 40 CFR 261.2 – Definition of solid waste utilizes the phrase, “Commercial chemical products listed in 40 CFR 261.33”.
- §261.33 – Discarded commercial chemical products, off-specification species, container residues, and spill residues thereof refers to, “Any commercial chemical product, or manufacturing chemical intermediate having the generic name listed in paragraph (e) or (f) of this section.” at §261.33(a). Also, it’s right there in the title.
Since one refers to the other, you might think this one phrase means the same thing in both locations, but that is not true. The USEPA interprets the meaning of Commercial Chemical Product differently in these two locations.
Let’s start with the use of Commercial Chemical Product in 40 CFR 261.33 for the purpose of determining if a waste is a P- or U-Listed hazardous waste. The use of the phrase in §261.33(a) is further clarified by a comment included in the section:
[ Comment: The phrase “commercial chemical product or manufacturing chemical intermediate having the generic name listed in . . .” refers to a chemical substance which is manufactured or formulated for commercial or manufacturing use which consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient. It does not refer to a material, such as a manufacturing process waste, that contains any of the substances listed in paragraph (e) or (f). Where a manufacturing process waste is deemed to be a hazardous waste because it contains a substance listed in paragraph (e) or (f), such waste will be listed in either § 261.31 or § 261.32 or will be identified as a hazardous waste by the characteristics set forth in subpart C of this part.] Emphasis mine.
For the purposes of determining a P- or U-listed hazardous waste, therefore, the USEPA intended to include only those Commercial Chemical Products known by the generic chemical name (eg. mercury – U151, creosote – U051, copper cyanide – P029) and exclude manufactured articles such as thermometers, railroad ties, scrap circuit boards, etc. that may contain those chemical substances. Manufactured articles that contain a P- or U-listed chemical are not a P- or U-listed hazardous waste when discarded (RO 14012).
While in Table 1 of 40 CFR 261.2 when defining a solid waste, the phrase is interpreted by the USEPA to include not only the “Commercial chemical products listed in 40 CFR 261.33” but all types of unused commercial products, chemicals or not. This interpretation, then, includes: scrap circuit boards, mercury thermometers, batteries, railroad ties, and more, if they exhibit one or more characteristic of a hazardous waste (RO 14012).
So, what does this mean to your hazardous waste determination? Consider the following examples:
- An instrument manufacturer has off-spec mercury thermometers to discard or reclaim. According to the USEPA’s interpretation of a Commercial Chemical Product at 40 CFR 261.2, a thermometer being reclaimed for its mercury (U151) is not solid wastes and therefore cannot be a hazardous waste. If to be discarded however, the generator will need to continue the determination where it will likely take advantage of the universal waste option for management and disposal. In any case, a discarded mercury thermometer is not a U-Listed hazardous waste.
- Railroad ties treated with creosote (U051) are to be either discarded or treated to reclaim the creosote. Similar to the above example for mercury thermometers, if being reclaimed, the railroad ties (a Commercial Chemical Product per 40 CFR 261.2) are not a solid waste pursuant to 40 CFR 261.2(c)(3). If discarded, 261.2(c)(3) does not apply. Pursuant to 40 CFR 261.33, however, the railroad ties are not a Commercial Chemical Product and therefore are not a U-listed hazardous waste. The railroad ties may, however, have the characteristic of Toxicity for o-Cresol, m-Cresol, o-Cresol, or Cresol; D023, D024, D025, & D026, respectively.
Perhaps this information may affect your hazardous waste determination, perhaps not. If not, it is still interesting to learn how the USEPA interprets the same phrase differently at different points in its regulations. Also take note, this article is based on the regulations of the USEPA; your state may take a different approach, so check with them before making any compliance decisions.
As always, don’t hesitate to contact me with questions about the hazardous waste regulations or the annual training required for your Facility Personnel.