The Hazardous Materials Regulations (HMR) of the US DOT found at 49 CFR Parts 171-180 regulate the transportation of all hazardous materials in commerce.  A material or substance is determined to be hazardous if it poses an unreasonable risk to health, safety, and property when transported in commerce.  Some hazardous materials are determined by the US DOT to pose too great a risk for some modes of transportation:  passenger air/rail or cargo air; and others are banned from transportation in commerce altogether, these are the “Forbidden” Materials.

If you are a Shipper of a hazardous material (HazMat) you are responsible for its classification before offering it for transportation to a Carrier.  The identification of a “Forbidden” Material is an important part of that classification.  If you are a Carrier, you should be aware of “Forbidden” Materials and know what to look for when accepting shipments for transportation; the transportation in commerce of a “Forbidden” Material could result in a catastrophic HazMat incident which you do not want to be involved in, no matter who is at fault.  The purpose of this article is to explain how the HMR identifies a “Forbidden” Material and your responsibilities as a Shipper or Carrier.

The following materials are identified as Forbidden by the US DOT at 49 CFR 173.21 unless otherwise provided in the HMR:

• Materials designated as “Forbidden” in column 3 of the Hazardous Materials Table at §172.101.
• Forbidden explosives defined at §173.54.
• Electrical devices (eg. batteries), which are likely to create sparks or generate heat, unless packaged to prevent such an occurrence.
• A package with a specified magnetic field if to be transported by aircraft [§173.21(e)].
• If packaged with another material (same packaging, freight container, or overpack) when the mixing of the two could create a hazard [§173.21(f)].
• A package with a specified Self-Accelerated Decomposition Temperature (SADT) or a specified polymerization temperature if there will be an evolution of a dangerous quantity of heat or gas [§173.21(f)].  This paragraph goes on to describe in depth the specific conditions that apply to this description.  I encourage you to read this closely if it may apply to your operations at all.
• Packages with a material that is not Forbidden that give off a flammable gas or vapor likely to create a flammable mixture with air in a transport vehicle.
• Packages with a material (not classified as explosive) that will detonate in a fire.
• A lighter as defined at §171.8 containing a Division 2.1 Flammable Gas or Class 3 Flammable Liquid unless it is of a design that is allowed by regulation or by the US DOT [§173.21(i)].
• The “Ketone Peroxide” category of an organic peroxide calculated per §173.128(a)(4)(ii) to contain >9% available oxygen [§173.21(j)].  It includes but is not limited to:
  • Acetyl acetone peroxide
  • Cyclohexanone peroxide(s)
  • Diacetone alcohol peroxides
  • Methylcyclohexanone peroxide(s)
  • Methyl ethyl ketone peroxide(s)
  • Methyl isobutyl ketone peroxide(s)
• An oxygen generator (chemical) as cargo in a passenger aircraft even if identified as acceptable elsewhere in the HMR.  However, an oxygen generator for a passenger’s personal or medical needs that meets the  requirements of §175.10(a)(7) is not a “Forbidden” Material.

Be aware that some hazardous materials are listed in the Hazardous Materials Table and then identified as “Forbidden” in column 3 (eg. Galactsan Trinitrate).  Refer to this PHMSA/USDOT website with a list of hazardous materials identified as Forbidden in column 3 of the Hazardous Materials Table:  Forbidden Materials (September 25, 2000).

Others may only be forbidden by a specific mode of transportation, but otherwise acceptable for transportation in commerce, examples:

• Hydrogen, compressed:  Forbidden for transportation by passenger air or rail (column 9A of the Hazardous Materials Table).
• Hydrogen Sulfide:  Forbidden for transportation by passenger air or rail (column 9A of the Hazardous Materials Table) and cargo air (column 9B).

So, what can you do with a “Forbidden” Material if you cannot transport it?  If offsite transportation is necessary, you have two options:

• Change the material or package in some so that it no longer exhibits the characteristic of a “Forbidden” Material.
• Apply for a Special Permit from the US DOT.

“Forbidden” Materials are one of those aspects that may never affect your operations under the HMR.  Or, it may be a significant factor in how you prepare for transportation or transport a hazardous material.  My training will teach you how to determine which of the regulations apply to you and what you must do to maintain compliance.  Please don’t hesitate to contact me with questions.

Unless exempted by regulation, all shipments of hazardous materials must be accompanied by a shipping paper, the basic requirements for which are provided at 49 CFR 172, Subpart C.  All persons involved in the transportation of a hazardous material, including a hazardous waste, should be familiar with these regulations particularly the requirements for HazMat shipping paper retention and recordkeeping found at §172.201(e):

Retention and Recordkeeping. Each person who provides a shipping paper must retain a copy of the shipping paper required by § 172.200(a), or an electronic image thereof, that is accessible at or through its principal place of business and must make the shipping paper available, upon request, to an authorized official of a Federal, State, or local government agency at reasonable times and locations. For a hazardous waste, the shipping paper copy must be retained for three years after the material is accepted by the initial carrier. For all other hazardous materials, the shipping paper must be retained for two years after the material is accepted by the initial carrier. Each shipping paper copy must include the date of acceptance by the initial carrier, except that, for rail, vessel, or air shipments, the date on the shipment waybill, airbill, or bill of lading may be used in place of the date of acceptance by the initial carrier. A motor carrier (as defined in § 390.5 of subchapter B of chapter III of subtitle B) using a shipping paper without change for multiple shipments of one or more hazardous materials having the same shipping name and identification number may retain a single copy of the shipping paper, instead of a copy for each shipment made, if the carrier also retains a record of each shipment made, to include shipping name, identification number, quantity transported, and date of shipment.

The objective of this article is to better explain the terms used in the above regulation and inform persons involved in the transportation of hazardous materials their requirements to retain copies of shipping papers for hazardous materials under the regulations of the US DOT.  The regulations of the US EPA for shipments of hazardous waste differ in some ways from those of the US DOT.  These differences will be referenced below, but a more complete explanation of the record retention requirements of the US EPA will have to wait until a later article.

Lets take  a look at some of the key terms used in the above paragraph to better understand the retention requirements for hazardous material shipping papers.

“Each person who provides…”

This limits the applicability of this regulation to just the Shipper of the hazardous material (aka:  The Offeror, or the Person who Offers).  The requirements of this regulation do not apply to the Carrier or to the Receiver of the hazardous material, both of whose regulatory responsibilities are explained later.

“…must retain a copy…”

This clearly establishes the requirement to retain a copy of the shipping paper.

“…required by §172.200(a)…”

§172.200(a) establishes the applicability for all of Subpart C – of which this paragraph is a part – to shipments of hazardous materials.  Unless specifically exempted by regulation a shipping paper will be required for a shipment of a hazardous material.  And, as indicated in §172.200(a) it is the responsibility of “each person who offers a hazardous material for transportation”, aka:  The Shipper, to describe the hazardous material on the shipping paper.

“…or an electronic image thereof…”

An electronic image of the shipping paper is acceptable for retention provided the other requirements of this subpart are met.  So, you may scan or copy your shipping papers and save them electronically on a computer or other hardware as long as the other requirements of this paragraph are met.

The US EPA regulations for the retention of a hazardous waste manifest at 40 CFR 262.40(a) do not specifically indicate an electronic image of a manifest as an acceptable copy for recordkeeping purposes.  However, this US EPA document:  Interpretation and Findings Regarding Safety-Kleen Corp.’s Automated Manifest Record Storage System does state that an electronic copy of a signed manifest, if it meets all other regulatory requirements, would be acceptable to the US EPA.

It is important to note that while electronic images of the shipping paper are accepted by US DOT for recordkeeping, they are not an acceptable replacement of the shipping paper while the hazardous material is in transportation (LOI 04-0207).

“…that is accessible at or through its principal place of business…”

The regulations provide some flexibility as to where, and thus how, the shipping papers are retained.  The actual records (paper or electronic) might be at your principal place of business, or they might be stored elsewhere but available from your principal place of business.  No matter where they are stored, don’t fail to comply with the next requirement.

“…and must make the shipping paper available, upon request…at reasonable times and locations…”

No matter where they are stored, or how (paper or electronic), you must provide HazMat shipping paper records when requested by authorized officials.  What is a reasonable time and location?  4:45pm on a Friday?  7:30am on a Monday?  I think it will depend on the authorized official.  Even without this regulation I have found it best during any agency inspection to give them the documents they request as quickly as you can.  It demonstrates cooperation and professionalism on your part and it gets them off your property faster.

“For hazardous waste…three years…accepted by the initial carrier…”

This is an instance where US DOT has revised its regulations for the transportation of a hazardous material to encompass the regulations of the US EPA for the transportation of a hazardous waste.  Under US DOT regulations these regulations apply to a Shipper, similar US EPA regulations refer to the same person as a generator, the requirements are the same.  US EPA requires persons handling a hazardous waste in transportation to retain a copy of the manifest as follows:

• Generator:  Three years from the date the hazardous waste is accepted  by the initial transporter [40 CFR 262.40(a)].  This matches the US DOT requirement of a Shipper found in this paragraph.
• Transporter:  Three years from the date the hazardous waste is accepted by the initial transporter [40 CFR 263.22(a)].  This differs from the US DOT requirement of 1 year for a Carrier (see below).
• Treatment Storage and Disposal Facility:  Three years from the date of delivery of the hazardous waste [40 CFR 264.71(a)(2)(v)].  This differs greatly from the US DOT which has no record retention requirement for those who solely receive a hazardous material.

“For all other hazardous materials…retained for two years…”

If the shipment is not a hazardous waste, then only the regulations of the US DOT are applicable.  In that case, a copy of the shipping paper must be retained for two years from the date the HazMat is accepted by the initial carrier.  Remember that these regulations apply only to a shipper of a hazardous material.  A carrier of a hazardous material is required to retain a copy of the shipping paper for one year after after the material is accepted by the carrier [49 CFR 177.817(f) and (LOI 09-0285)].  A person who receives a shipment of a hazardous material has no record retention requirement  and indeed is not required to receive a copy of the shipping paper at all (unless it is a hazardous waste).

“Whatever happened to 375 days?” You may ask.  Well, prior to enactment of the Hazardous Materials Safety and Security Reauthorization Act of 2005 (effective date of January 9, 2006) the mandatory retention period of a hazardous material shipping paper for both shippers and carriers was 375 days.  However, after January 9, 2006 it became two years for a shipper and one year for a carrier (LOI 06-0025).

“…must include the date of acceptance…”

This makes sense since the mandated time period for shipping paper retention begins on the date of acceptance by the initial carrier.

“…except that, for rail, vessel, or air shipments…”

A slight exception for the date of acceptance is allowed for shipments by rail, vessel, or air.

“A motor carrier…using a shipping paper without change…”

Referred to as a “Permanent” Shipping Paper, this aspect of the regulation deserves its own article, and so I did:  Using a “Permanent” Shipping Paper for the Transportation of Hazardous Materials.

That is a summary of the regulation, please contact me if you do not find the answers to your questions.  I initially thought this would be an easy article to write, but it just kept getting more complicated as I dug into it (I find that happens often with the regulations).  In later articles I will look more in-depth into the following:

• Record retention requirements for Carriers of hazardous materials.
• Signed by hand vs. manual signature on a shipping paper and a hazardous waste manifest.
• Electronic transmission of the uniform hazardous waste manifest.
• Record retention requirements for generators of hazardous waste.

The transportation of a hazardous waste is subject to the regulations of both the US EPA and the US DOT.  That is why I include the training required by both agencies in one day of training either at Public Seminars or Onsite Training.

Please contact me for a free consultation of your training needs.

US EPA News Release:

PHILADELPHIA (Jan. 22, 2013) — Phillips 66 Company has agreed to pay a $50,000 penalty to settle alleged violations of hazardous waste regulations at its former refinery located in Trainer, Pa., the U.S. Environmental Protection Agency announced today.

Phillips 66 Company is the successor to ConocoPhillips Corporation, which owned the refinery at 4104 Post Rd., Trainer, Pa. The facility was sold to Monroe Energy, a subsidiary of Delta Airlines in 2012.

EPA cited the company for violating the Resource Conservation and Recovery Act (RCRA), the federal law governing the treatment, storage, and disposal of hazardous waste. RCRA is designed to protect public health and the environment, and avoid costly cleanups, by requiring the safe, environmentally sound storage and disposal of hazardous waste.

Following two inspections in 2011 and 2012 by EPA and subsequent requests for information, EPA cited Phillips 66 for RCRA violations involving hazardous waste stored at the facility, including oil refinery hydrocarbon waste, chromium waste, heavy metal waste from batteries, and mercury waste from fluorescent bulbs.

The alleged violations included operating a hazardous waste treatment, storage or disposal facility without a permit, failure to keep several hazardous waste containers closed except when necessary to add or remove waste, failure to update the company’s contingency plan following a change in emergency coordinators, failure to maintain hazardous waste management personnel designations and job descriptions, and failure to properly manage universal waste batteries and waste lamps.

The settlement penalty reflects the company’s compliance efforts, and its cooperation with EPA in the resolution of this matter. As part of the settlement, Phillips 66 Company has neither admitted nor denied liability for the alleged violations.

For more information about hazardous waste and RCRA, visit http://www.epa.gov/epawaste/hazard/index.htm.

Contrary to what you may believe, the US EPA is not all about enforcement.  Part of US EPA’s mission is to provide information to the regulated community in the form of guidance documents whose purpose is to summarize the regulations in plain English and indicate sources of additional information.

When referring to a guidance document it is important to keep the following in mind:

• No guidance document – even one published by the US EPA – is a substitute for the regulations.  A good guidance document may only provide an overview of the regulations, if you find some of its information useful you must research the regulations to determine compliance.
• The regulations may have changed since the guidance document was written.
• If the document is issued by the US EPA you may have to confirm the information with your state environmental agency.  All states except for Iowa, Alaska, & Puerto Rico have approved hazardous waste programs under RCRA and will write and enforce their own regulations.  These states will have their own guidance documents to explain their regulations.

An example of a series of very helpful guidance documents issued by US EPA is the RCRA in Focus series.  From the website:

RCRA in Focus is a series of publications providing an overview of the RCRA regulations affecting specific industry sectors. Intended as a guide for small businesses, RIF presents the lifecycle of a typical waste for each industry and focuses on recycling and pollution prevention options. Each issue contains a hazardous waste table of RCRA requirements for small businesses and answers frequently asked questions.

Industry for which RCRA in Focus publications are available:

• RCRA in Focus: Construction, Demolition, and Renovation
• RCRA in Focus: Dry Cleaning
• RCRA in Focus: Dry Cleaning – Korean
• RCRA in Focus: Furniture Manufacturing and Refinishing
• RCRA in Focus: Leather Manufacturing
• RCRA in Focus: Motor Freight & Railroad Transportation
• RCRA in Focus: Motor Freight & Railroad Transportation – en Español
• RCRA in Focus: Photo Processing
• RCRA in Focus: Printing
• RCRA in Focus: Printing – en Español
• RCRA in Focus: Textile Manufacturing
• RCRA in Focus: Vehicle Maintenance
• RCRA in Focus: Vehicle Maintenance- en Español

Guidance documents are available for download as a pdf or you may order copies through the mail (limit to ten different publications and one of each per day).

Publications like these can be a great asset in maintaining compliance with the hazardous waste regulations of the US EPA and your state, especially if you are one of the industry listed above.  Also helpful is training.  Contact me for a free consultation on your training needs.

In an article last year I wrote of the proposed change to the frequency of the Hazardous Waste Report in Ohio.  The (at that time) proposal would change the frequency of the report from annual to biennial (every two years).

On January 24, 2013 the Ohio EPA announced the finalization of the rules package (known as the “Biennial Set”) making this proposal effective as of February 5, 2013.  As of that date the Hazardous Waste Report in Ohio will be due March 1st of every even-numbered year for the previous calendar year.

This eliminates the Annual Hazardous Waste Report due March 1, 2013 for calendar year 2012 in Ohio.  The next due date for the report will be March 1st of 2014 for calendar year 2013.

This change will impact the reporting responsibilities for the following Ohio facilities:

• Treatment Storage & Disposal Facilities (TSDF)
• Large Quantity Generators of hazardous waste
• Small Quantity Generators of hazardous waste – if required to submit the report by Ohio EPA

This change should not have any impact on facilities outside of Ohio except for TSDF’s who accept hazardous waste from generators in Ohio, they may need to only provide information to their customers every other year instead of annually.

This change brings Ohio in line with the regulations of the US EPA which mandate a biennial frequency for the hazardous waste report.  Ohio prior to this rule was like many states with an authorized hazardous waste program that choose to go above and beyond the Federal standards.

More information on the rule is available at the Register of Ohio.

Please don’t hesitate to contact me with any questions about the regulations of the US EPA or the Ohio EPA.

The US Department of Transportation (US DOT) regulates the transportation in commerce of hazardous materials within the US.  Its authority does not extend beyond our borders however and so the transportation of hazardous materials (referred to as dangerous goods in international regulations) outside US borders are subject to international standards and regulations.  At 49 CFR 171.22 the US DOT authorizes the use of international standards & regulations (with certain conditions) in lieu of compliance with the US DOT’s domestic regulations when shipping hazardous materials/dangerous goods either internationally and/or domestically.  The US DOT has reciprocal treaty agreements with four regulatory agencies and therefore authorizes the use of the following standards & regulations:

• The International Civil Aviation Organization’s Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions).
• The International Maritime Dangerous Goods Code (IMDG Code).
• Transport Canada’s Transportation of Dangerous Goods Regulations (Transport Canada TDG Regulations).
• The International Atomic Energy Agency Regulations for the Safe Transport of Radioactive Material (IAEA Regulations).

The transportation of a hazardous material/dangerous good in compliance with the standards & regulations of an international agency – even one authorized by the US DOT – is not enough, you must also comply with applicable DOT regulations (those conditions mentioned earlier).  These requirements are found at §171.22(b-g) as follows:

• HazMat/dangerous good shipment must be transported in compliance with the applicable international standards & regulations.  Therefore the  US DOT has the authority to enforce the international standards & regulations when used in domestic transportation the same as they enforce the Hazardous Materials Regulations (HMR) of 49 CFR.
• HazMat/dangerous good shipment must also comply with these regulations:  49 CFR 171, Subpart C – Authorization and Requirements for the Use of International Transport Standards and Regulations.
• If a material is designated as a hazardous material by the US DOT but is not recognized as a dangerous good by international standards & regulations it cannot be transported as a non-hazardous material within the US.
• Conversely if a material is not regulated as a hazardous material by the US DOT but is regulated as a dangerous good by international standards & regulations, it may be transported as a dangerous good within the US in full compliance with the applicable international standard or regulation.
• If a material or package is forbidden to be transported within the US by the US DOT, then it may not be transported within the US even if allowed by international standards & regulations.
• Except for transportation by highway or rail between the US and Canada pursuant to §171.12, importers of hazardous materials into the US must provide specified information to the forwarding agent at the place of entry into the US.
• For imports, the shipper’s certification required by §172.204 must be provided to the initial US carrier by the shipper.  A US carrier may not accept a hazardous material shipment without a shipper’s certification unless the certification is not required by US DOT regulations.
• Shipping paper and package markings must be in English.  However, you may use both English and another language if required by the regulations of a foreign entity.
• Shippers and carriers must retain copies of shipping papers as required at §172.201(e).
• Additional requirements for all shipments of HazMat within the US:
• Emergency response information required by Subpart G of part 172.
• Train and test HazMat Employees per 49 CFR 172, Subpart H.
• HazMat security requirements of §172, Subpart I.
• HazMat incident reporting requirements of §171.15-16.  Includes:
• On board vessels in the navigable waters of the US.
• Aboard aircraft of US registry anywhere in air commerce.
• For export shipments:
• General packaging requirements of §173.24 & §173.24(a).
• The requirements for the reuse, reconditioning, and remanufacture of packagings in §173.28.
• The registration requirements of §107, Subpart G.

49 CFR 171.23 contains requirements for shipments of specific materials shipped under international regulations within the US:

• Cylinders
• Aerosols
• Air bag inflators
• Chemical oxygen generators
• Class 1 Explosives
• Hazardous substances
• Hazardous wastes
• Marine pollutants
• Organic peroxides
• Poisonous by inhalation materials
• Class 7 Radioactive
• Self-reactive materials

49 CFR 171.24, 25, & 26 contain additional requirements when using the ICAO Technical Instructions, IMDG Code,  and the IAEA Regulations, respectively.

To sum up:  the US DOT allows the transportation of hazardous materials – even entirely within the US – in compliance with international standards & regulations in lieu of 49 CFR.  However,  you are still required to comply with the applicable requirements of the US DOT for the hazardous materials shipment.  And, if you follow international standards and regulations for your shipment of HazMat, the US DOT remains the enforcement agency in US Territory for determining compliance.

The 800-pound gorilla in the room that has yet to be mentioned – and indeed is not mentioned anywhere in the HMR – is the Dangerous Goods Regulations of IATA:  The International Air Transportation Association.  IATA is a creation of the airline industry, is based on the ICAO Technical Instructions, and is not authorized for use by the US DOT.  However, since it is based on the ICAO Technical Instructions and they are authorized by US DOT, compliance with IATA – and the regulations of this Subpart – will ensure compliance with the HMR.  More on IATA in future article.

I can provide training to comply with the HMR of the US DOT and the Dangerous Goods Regulations of IATA.  Contact me for a free consultation of your training needs.

By Anthony Tosie, atosie@starlocalnews.com

Following several years of violating federal environmental regulations with its Frisco lead-acid battery recycling plant, Exide Technologies has agreed to pay a $225,000 fine to the Environmental Protection Agency.

The fine comes as the result of violations the agency found at the Frisco plant in regards to the Resource Conservation and Recovery Act following December 2009 and December 2010 inspections. Exide has paid similar fines for violating other federal laws in recent years.

Violations were found regarding the spread of dust, handling of waste and maintenance of required equipment, among other issues.

One such violation, according to the settlement, occurred when “EPA [officials] collected evidence during the 2009 and 2010 facility inspections showing that the hood installed at the reverberatory furnace was a partial hood enclosure that has openings which allow fugitive emissions to escape.”

Another violation the EPA states its officials witnessed included Exide vehicles failing to use a vehicle wash after visiting the plant’s raw materials storage building. The settlement agreement also claims Exide was unable to provide records for several safety and health requirements, such as a full plan for preventing the spread of dust emissions.

As part of the settlement, Exide will continue testing samples of solid waste according to guidelines given by the EPA. The company is also required to continue working with the Texas Commission on Environmental Quality for the remediation of contaminated land.

Exide has 30 days from the settlement’s Dec. 18 filing to pay the $225,000 fine.

The Frisco-based battery recycling plant is currently in the process of being demolished following an agreement with the city. Part of that process includes TCEQ-overseen decontamination of the land the plant resides on as well as the proper disposal and cleaning of facilities and equipment prior to demolition.

Exide is currently accepting questions regarding the plant’s closure at its website. Earlier this week, the company posted an action plan regarding the landfill on the site which is home to hazardous materials.

According to that plan, however, Exide will retreat the hazardous materials currently in the landfill until analysis finds the materials to be in compliance with federal standards. After the materials comply with federal standards, the materials will be placed back in the landfill.

The company’s website is currently accepting questions on the landfill action plan. To read the plan or submit a question, click here.

The regulations of the US EPA at 40 CFR 279 allow for the regulation of a waste as a Used Oil provided it is:

• Petroleum-based or synthetic,
• Used, and;
• As a result of its use is contaminated by chemical or physical impurities.
• In addition, US EPA presumes Used Oil will be recycled.

A solid waste meeting the above criteria may be managed as a Used Oil even if it exhibits any of the characteristics of a hazardous waste:  Ignitability, Corrosivity, Reactivity, or Toxicity but not if it is a listed hazardous waste.  Read more about The Management of Used Oil.

What about mixtures of Used Oil and hazardous waste?  How will the resulting mixture be regulated?  The answers to those questions are the goal of this article.

There are two general situations where a Used Oil may become mixed with a hazardous waste:

1. Combination takes place during use before the point of generation.  This typically is not considered to be mixing of separate wastestreams and is not subject to regulation as such.  However, as the generator you must determine if the waste meets the definition of a Used Oil at the point of generation.  For example, if anhydrous ammonia becomes mixed with your Used Oil as part of a refrigeration system before the point of generation the combined waste may still be managed as a Used Oil as long as it meets the definition of Used Oil at 40 CFR 279 and summarized above.
2. The combination (intentional or unintentional) takes place after the point of generation.  The combination of two or more distinct wastestreams (in this situation Used Oil and a hazardous waste) puts the burden on you as the generator to first determine if the mixing is allowed by regulation and secondly determine the regulatory status of the resulting mixture.  Your determination must consider the regulations of your state.

Is the mixing allowed?

To determine if the mixing is allowed at all you must answer the following two questions:

1. Is the mixing considered treatment by dilution and therefore prohibited under the Land Disposal Restrictions (LDR) of 40 CFR 268?  As we will see later however, the mixing of Used Oil and some hazardous waste may not be subject to the LDR.
2. Does the mixing meet the definition of Hazardous Waste Treatment at 40 CFR 260.10?  If so, the mixing may require a permit though there are many examples where a generator is allowed to treat hazardous waste onsite without a permit.

What is the regulatory status of the mixture?

• The mixture of Used Oil and a waste that is hazardous solely for the characteristic of Ignitability may be managed as a Used Oil as long as the mixture does not exhibit the characteristic of Ignitability.  The option to manage the mixture as a Used Oil remains even if the mixture exhibits other hazardous characteristics such as Toxicity for lead (D008) which may have been present in the Used Oil before mixing.  If the characteristic for Ignitability is exhibited by the mixture, then it may not be managed as a Used Oil and must be managed as a hazardous waste [40 CFR 279.10(b)(2)(iii)].
• The mixture of Used Oil and a characteristic hazardous waste (other than an Ignitable-only referred to above) may be managed as a Used Oil only if the mixture does not exhibit any hazardous waste characteristics.  If any hazardous waste characteristic is exhibited by the mixture (example:  the Toxicity characteristic for lead [D008] is present in the Used Oil) the waste must be managed as a hazardous waste [40 CFR 279.10(b)(2)(ii)].
• The mixture of a Used Oil and a listed hazardous waste can be tricky.  The simple answer is that the mixing of any listed hazardous waste and Used Oil will result in a mixture that must be managed as a listed hazardous waste [40 CFR 279.10(b)(1)].
• However 40 CFR 279.10(b)(2)(ii) indicates that a mixture of an ICR-Only Listed Waste and a Used Oil may be managed as a Used Oil provided the mixture does not exhibit any hazardous waste characteristic.  Notice that this citation is the same one that allows you to manage the mixture of Used Oil and a characteristic hazardous waste as Used Oil provided the mixture does not exhibit any characteristic of hazardous waste.  This includes those characteristics of hazardous waste that may have been present in the Used Oil before mixing.  I advise extreme caution before exercising this option, I will explain further below.

The Land Disposal Restrictions:

The LDR prohibits the dilution of a hazardous waste in order to render it non-hazardous.  However, the Used Oil standard at 40 CFR 279.10(b)(2) indicates that mixtures of a Used Oil and some forms of hazardous waste are not subject to the LDR if the mixture does not exhibit any characteristics of hazardous waste; the two types of hazardous waste not subject to the LDR when mixed with Used Oil are:

1. Hazardous waste that solely exhibit one or more of the hazardous waste characteristics, and;
2. ICR-Only Listed Waste.

If the mixture is eligible to be managed as a Used Oil, then it is not subject to the Land Disposal Restrictions of 40 CFR 268  – or parts 260-266, 270, & 124 – which means no further treatment is required before disposal.

Why I Advise Extreme Caution Before Exercising the Option of Mixing Used Oil with ICR-Only Listed Waste:

1. First and foremost, this is my interpretation of the regulations and though it seems clear to me it may not be as clear to your boss, your Used Oil recycler, or the EPA inspector.  Also I could be flat-out wrong, it happens.
2. Secondly you have to decide if interpreting the regulations in this way would benefit you at all.  If the benefit is minimal it might not be worth all the hassle of having to constantly justify your position.
3. From the perspective of a Best Management Practice it is a good idea to keep wastestreams separate and manage them according to their applicable regulations.
4. And finally, this interpretation is based on the Federal regulations of the US EPA.  You must determine the regulations of your state if it is authorized to implement the hazardous waste program (all but Iowa, Alaska, and Puerto Rico are).  I have spoken to two states and one regional office on this issue:

• Illinois EPA thought it might be allowed, but did not think it was a good idea.
• US EPA Region V did not come out and say I was wrong but gave me a list of reasons why it is a bad idea and why they strongly discourage mixing of wastestreams.
• Maryland Department of Environment referred me to their state regulations that expressly forbid the mixing of an ICR-Only Listed Waste and a Used Oil [COMAR 26.13.10.05(E)]

As always, the determination of a wastes status is up to you as the generator.  The management of that waste in compliance with the regulations depends upon your initial determination; so make your decision with care.  Please don’t hesitate to contact me with any questions.

Compliance with the regulations of the US EPA and the US DOT – not to mention the Occupational Health and Safety Administration (OSHA) – requires knowledge of those regulations.  Knowledge of the regulations can only come after you  have familiarized yourself with their structure and content.  And familiarity requires access.  The objective of this article is to inform you of a free source of the regulations of the US DOT, US EPA, and other Federal agencies.

The general and permanent rules of all Federal Agencies are first printed in the Federal Register and then codified in the Code of Federal Regulations (CFR).  It is the responsibility of the Government Printing Office (GPO) – an agency of the legislative branch of the Federal Government that provides printing and binding services for congress – to make the CFR available to interested parties.  In the old days (remember the 90’s?) this would have meant printing and distributing a hardcopy on the printed page.  But in this modern age of the internet the CFR is available to you on-line:  free, easily accessible, and with tools to help make sense of it.

The CFR is available from the GPO in two formats both of which are available through the GPO’s Federal Digit System (FDsys):

The annual edition of the CFR is available online for calendar years 1996 through 2012.  It contains the 50 titles of the CFR which are updated once each calendar year on a staggered basis. The annual update cycle is as follows:

• Titles 1-16 are revised as of January 1
• Titles 17-27 are revised as of April 1
• Titles 28-41 are revised as of July 1
• Titles 42-50 are revised as of October 1

This version of the CFR can be downloaded in several formats:  pdf, text, & XML.  Of the three, only pdf and text have legal status as parts of the official online format of the Code of Federal Regulations (User Guide Document – CFR XML Rendition).  In addition to its legal status, pay attention to the annual updates to the CFR based on the title:

• OSHA regulations are in Title 29 – Annual update on July 1.
• US EPA are in Title 40 – Annual update on July 1.
• US DOT are in Title 49 – Annual update on October 1.

Also available is an electronic version of the CFR known as the e-CFR.  This version includes all 50 titles of the CFR but has the advantage of more frequent updates (daily) than the annual edition of the CFR.  In addition to the daily updates its advantages include user-friendly tools for searching the regulations.  You may also use standard web-browser tools such as search, print, bookmark, or hyperlinks to make the e-CFR more useful to you.

Unfortunately the e-CFR is an editorial compilation of the CFR and Federal Register amendments, “It is not an official legal edition of the CFR”.  In other words its a great source of information but before you make any difficult regulatory decisions, be sure you have researched the official legal edition of the annual edition of the CFR.