RCRA – the Resource Conservation and Recovery Act – was passed in 1976 to amend the Solid Waste Disposal Act of 1965 and to address a growing national concern over the improper management and disposal of both hazardous and non-hazardous waste.  Subtitle C of RCRA established a system to manage by regulation a hazardous waste from its moment of generation through transportation to its treatment, storage, and finally, disposal.  The name for this comprehensive management system is:  Cradle to Grave.

• Point of Generation = “Cradle”
• Transportation to Treatment, Storage, or Disposal = “to”
• Treatment, Storage, and Final Disposal = “Grave”

While RCRA regulates the generation, transportation, and disposal of hazardous waste, it also has the authority to clean up hazardous waste from active facilities.  RCRA does not, however, have the authority to address the problem of hazardous waste at inactive or abandoned sites or those resulting from emergency response to spills.  Enter CERCLA.

CERCLA – the Comprehensive Environmental Response, Compensation and Liability Act of 1980 – aka:  Superfund, was created to address the problem of hazardous waste and hazardous substances at inactive or abandoned sites or those resulting from emergency response to spills.  It was amended by the Superfund Amendments and Reauthorization Act (SARA) of 1986.  Upon a site becoming subject to its regulations (ie. a Superfund Site), CERCLA imposes liability on parties responsible for, in whole or in part, the presence of hazardous substances at a site.  In other words, if you had anything to do with a hazardous substance ending up at a Superfund Site, either by transporting it their yourself or by contracting with others to do it for you, you have the potential to be identified as a Potentially Responsible Party (PRP) and be held responsible for the entire cost of cleaning up the site.  CERCLA’s authority in these matters is broad and has been upheld by the courts.

A generator of hazardous waste must know about CERCLA/SARA as well as RCRA because CERCLA has the authority to force a generator to clean-up a polluted site or scene of an emergency response spill if that generator ever sent any of its hazardous waste to that site.  But it goes further.  CERCLA regulates hazardous substances, not just hazardous waste.  The definition of a hazardous substance includes a hazardous waste, but it also includes 800 other hazardous substances listed in 40 CFR 302.4.  Many non-hazardous wastes, recycled materials, and de-regulated hazardous wastes (Universal Waste, Used Oil, etc.) contain hazardous substances, which includes:

• Copper and Copper Compounds
• Lead and Lead Compounds
• Mercury and Mercury Compounds
• Zinc and Zinc Compounds
• And many more

So, every time you arrange for disposal of a hazardous waste by recycling, treatment, or disposal, you are opening up the potential for clean-up of a site under CERCLA or RCRA.  Every time you dispose of a non-hazardous or de-regulated hazardous waste – even scrap metal for recycling – you are opening up the potential for clean-up of a site under CERCLA if it contains a hazardous substance.  This responsibility exists even if your waste has been re-manifested by a third party prior to its disposal.  You can read more about the Superfund Program here.

What can you do?

1. Accept that some risk is the cost of doing business.
2. Do everything you can to eliminate the generation of waste.
3. Ensure you are familiar with the regulations that apply to your operations and adhere to them.
4. Perform “due diligence” of any facility to which you ship your waste for disposal, treatment, or recycling to ensure they are in compliance with the regulations and that they have measures in place to protect you from future liability such as a large cash reserve or sufficient insurance coverage.

At my training events I address all of the above while meeting the RCRA training requirements for Large and Small Quantity Generators of hazardous waste.  Contact me to discuss your training needs or review my training schedule to find a date and location near you.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) within the US DOT is tasked with enforcing the nations hazardous materials transportation regulations across all modes of transportation.  The unannounced inspections of its agents of the regulated community, ie. shippers, receivers, and transporters of hazardous materials, just like you; has been found to turn up a relatively stable crop of violations.  This article contains a descriptive list of the top six violations found by the PHMSA.

One thing these violations have in common (especially the first five) are their frequent applicability throughout the HazMat transportation industry.  If you ship or receive any hazardous materials at all, including hazardous waste, then you have a good chance of being subject to the first five of these potential violations.  The sixth one depends on the quantity and type of hazardous material you offer for shipment.

The source of the information for this list is a PHMSA Workshop I attended in St. Louis in August of 2011.  The trainers, who were all active PHMSA inspectors, reported that this list was determined from inspections completed by the Administration within the previous year.  I’m sure that the ranking of these violations may shuffle over the years, but it is my opinion that the violations listed below will always be near the top.

The top six violations of the Hazardous Material Regulations found during inspections by agents of the PHMSA are:

1. Improper HazMat Employee training record documentation:  An important distinction must be made here, the violation is not due to failure to complete training (see #2) or failure to document the training, but failure to properly document HazMat Employee training.  49 CFR 172.704(d) explains exactly what must be done in order to document the training in a form acceptable to the PHMSA.
2. Failure to train HazMat Employees:  Not unexpectedly, failure to provide initial and recurrent training for all HazMat Employees as specified in 49 CFR 172.704(c) is right at the top of the list.  If you ship or receive a hazardous material (ie. paint, resin, solvent, cleaners, fuel, corrosives, etc.) in commerce, then your HazMat Employees must be trained and tested within 90 days of new hire or change in employment (supervised by a trained employee during those 90 days), and receive full training at least once every three years thereafter.
3. Improper marking and labeling of HazMat packages in shipment:  With millions of tons of hazardous materials in transportation every day, it is no surprise that many packages of HazMat are found to be labeled and marked improperly.  The exact nature of each violation will differ for each shipment, however, whatever the violation they all have one solution:  an understanding of the Hazardous Material Regulations (HMR) and how they apply to the hazardous materials you as the shipper are offering for shipment.  It is the requirement of the shipper, not the transporter of the HazMat, to ensure it is properly marked, labeled, and the correct packaging is in the proper condition for shipment.  If you aren’t sure of your responsibility as a shipper, just read the certification statement near your signature the next time you sign a shipping paper.  Which brings us to…
4. Errors on the shipping paper:  Every shipment of a hazardous material must be accompanied by a shipping paper.  For a commercial product the shipping paper may be known as a Bill of Lading.  For a shipment of a hazardous waste it must be a Uniform Hazardous Waste Manifest.  Whatever the name, it is the responsibility of the shipper to ensure the shipping paper is completed properly.  As in #3 above, whatever the cause of the violation, the solution is a thorough understanding of the HMR, the hazardous material – or hazardous waste – you are offering for shipment, and what information about the hazardous material is required to be documented on the shipping paper.
5. Not registered with the PHMSA as a shipper or carrier of hazardous materials:  In my experience providing HazMat Employee training I have found it to be quite common that employers are not aware of their requirement to register annually with the PHMSA.  I will have to save a more thorough explanation for another day as the criteria determining registration can be technical, but know that if you transport or offer for transport a hazardous material, including a hazardous waste, in a quantity that requires the vehicle to be placarded then you must register with the PHMSA.  More information about the PHMSA registration requirements can be found here.
6. No Security Plan:  Since 2003 a person must complete a security plan if they transport or offer for transportation a type and quantity of HazMat subject to the regulation.  The current version of the applicability determination for the security plan can be found at 49 CFR 172.800(b).  “Current” because on October 1, 2010, the applicability determination was revised to better address real security threats and remove from regulation small amounts of HazMat not thought to be a potential security threat.  The requirements for Security Plan content were changed at that time as well.  If your determination of Security Plan applicability was completed prior to 2010 you may wish to check the regulations again to see if you are still subject.  If you were not aware of this regulation, please check the applicability determination now to confirm your responsibility.  More information about completing the Security Plan can be found on the PHMSA Security website.

There you have it, The Magnificant Six; which of these violations could an inspector find at your facility?  And while we’re talking about inspectors, keep in mind that it is not just the PHMSA which conducts inspections of shippers of hazardous materials.  If your HazMat is ever transported by an applicable method:  Air, rail, highway, or vessel; you may find your facility inspected by the Federal Aviation Administration, the Federal Railroad Administration, the Federal Motor Carrier Safety Administration, or the Coast Guard.  Fines for these violations can quickly go into the thousands of dollars each; much more than the cost of a one day training session that covers all of the above and more.

Avoiding the violations and fines for all of the above, and more not listed here, begins with proper training of all of your HazMat Employees.  Proper training will not only completely eliminate #’s1 & 2 as a potential violation, it will give you the knowledge and tools to avoid #’s 3+ for years to come.

The characteristic of corrosivity is one step of the hazardous waste determination process that you must complete for every waste stream that you generate.

Your waste is a corrosive hazardous waste, with waste code D002, if a representative sample has either of two properties:

1. It is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5, or
2. It is a liquid and corrodes steel of a specified grade at a specified rate.

For the first property determination aqueous means, “Of or containing water, typically as a solvent or medium”.  The regulation doesn’t specify how much water must be present in the sample, however the only approved test method (Method 9040C) requires the sample to contain at least 20% water.   If your waste does not meet this requirement, then you cannot use this method for determination of corrosivity and must proceed to the second property determination.

The second property determination is one much less known by the regulated industry.  It must be used to determine corrosivity in two circumstances:

1. The waste contains <20% water and therefore is not suitable for the first determination.
2. The waste passes the first determination with a pH of >2 or < 12.5.

40 CFR 261.22(a)(2) specifies Method 1110A for determining if a liquid sample is able to corrode  steel (SAE 1020) at a rate greater than 6.35 mm (0.250 inch) per year at a test temperature of 55 °C (130 °F).  The key word here is:  liquid.  If you don’t have a liquid waste, then you may not use this test method to determine corrosivity.

If it is not clear from the above, the US EPA does not recognize a solid material as having the characteristic of corrosivity; a D002 waste code may not be applied to a solid.  This may differ for your state however as some have included solids in the characteristic of corrosivity or have revised the test methods to encompass solids.

The US EPA description of the characteristic of corrosivity  is explained at 40 CFR 261.22.  A careful reading of this regulation is necessary to ensure your hazardous waste determination is accurate and complete.  Good training will help illuminate other areas of the regulations and how they impact your operations.

If you’ve been through some type of regulatory training, it’s likely you’ve seen one or more of these…

1. “The Professor” – A dry, technical presentation; packed with information, but assuming a higher level of regulatory awareness than that of the average EHS professional.  Way too much information on obscure regulations that don’t apply to your operations.
2. “The Showman” – Energetic, a multi-media, caffeinated presentation that keeps you interested, “What goofy image is going to be on the next slide?” but lacking in substance.  No explanation of how the regulations work or how they apply to you.
3. “The Mouth Piece” – Presenting someone else’s material.  The content is solid, but the presenter, lacking the experience and the knowledge,  is only reading the information to you.  Your follow-up questions are not answered satisfactorily.
4. “The Corporation” – The training providers whose names you would recognize if I had the courage to list them here.  Great marketing materials, impressive website, slick operation, but the training; what about the quality of the training?  It comes down to who they hire; if that person doesn’t have the experience, knowledge, and skills, the best website in the world won’t make up for your lost time and money.
5. “The Freebie” – Sometimes offered by your waste vendor or some other entity not in the business of training.  “There’s no such thing as a free lunch.”, and there’s no such thing as free high quality training.
6. “The Trainer You Know (aka: Last Year’s Trainer)” – You return to the same training year after year, as if they are the only training provider out there.  I recommend to anyone to vary their training providers, especially for annual training such as US EPA’s Hazardous Waste Personnel.  Even if the training isn’t as good, you at least gain a different perspective on the regulations.  Note to those who have attended my training, disregard #6.
7. “The Bargain” – Cousin to “The Freebie”, this training is a few dollars cheaper, or doesn’t require an overnight stay, or doesn’t require air travel, so it seems like a deal.  In the end your company saves a few hundred bucks per year on training, but consider:  how much does one fine cost?

When deciding on what training to attend, you should choose the training that best fills your needs, determine if the training…

• Meets your regulatory requirements.
• Represents “real world” information.
• Provides you with tools and guidance information beyond the training content.
• Entertains and engages you.
• Answers your questions.

There are many good training providers out there, I think I am one of them.  Please contact me for a free consultation on your training needs if you generate a hazardous waste and/or ship or receive hazardous materials.

40 CFR 261.2 defines a solid waste as any discarded material not excluded by regulation, variance, or non-waste determination.  A discarded material is any material which is:

1. Abandoned,
2. Recycled,
3. Considered inherently waste-like as described in paragraph (d), or
4. A military munition

What the US EPA defines as inherently waste-like is explained in detail at 40 CFR 261.2(d), the list is short and industry specific; it includes:

1. Listed hazardous wastes which are Dioxins:  F020, F021 (unless used as an ingredient to make a product at the site of generation), F022, F023, F026, & F028.  The table of F-listed hazardous waste can be found at 40 CFR 261.31
2.  Secondary materials fed to a halogen acid furnace that are a listed or characteristic hazardous waste, except for brominated material that meet criteria listed in 40 CFR 261.2(d)(2)(i-iii).  I won’t list those here, you can read the full regulations if you think this applies to you.

Paragraph (d) reads in part, “ The following materials are solid wastes when they are recycled in any manner”.  What if you have no intention of recycling the waste?  Is it still considered to be inherently waste-like?  The answer is yes.  If your waste meets the definition of inherently waste-like, it is considered by regulation to be a discarded material and therefore a solid waste unless it is excluded at 40 CFR 261.4(a).

A quick review of paragraph (d) should be enough to tell you if your waste is inherently waste-like.  The list is subject to change since the US EPA maintains its right to add wastes to the list if it deems it necessary.

The determination of inherently waste-like is just one step of a complete hazardous waste determination that you must make for all waste.  Proper training can help you to identify the steps you must take to maintain compliance.

49 CFR 173.12 contains many exceptions to full regulation for shipments of hazardous waste in a lab pack.  In an earlier blog post I discussed the exception in 173.12(d)that removes the need to include the technical name of a hazardous material when shipping lab packs of hazardous waste with a generic shipping name such as:  Waste Flammable Liquid, n.o.s.  This article will focus on the relief from the requirements to segregate HazMat -including hazardous waste – in transportation, found in 173.12(e).

If the requirements of this section are met – more on that below – then lab packs of hazardous waste are not subject to the segregation requirements of…

• 49 CFR 174.81(d) for shipments by rail,
• 49 CFR 176.83(b) for shipments by vessel, or;
• 49 CFR 177.848(d) for shipments by highway,

The purpose of the segregation restrictions is to prevent the transportation, or storage in transportation, of hazardous materials that may be incompatible and thus pose an unreasonable risk to life, property, or the environment.  However, PHMSA has determined that if packaged properly, the small volumes of hazardous waste in a lab pack can be transported safely without these restrictions.

Note that this exception to the segregation requirements does not apply to shipments by air.  In that case, the requirements of the International Air Transport Association (IATA) must be complied with in addition to and separate from the regulations of the PHMSA/US DOT.

To be subject to the exception, the hazardous waste must be packaged as a lab pack.  The PHMSA doesn’t define a lab pack, instead it refers you to the Appendix C Glossary of the RCRA Compliance Manual 2011 which defines a lab pack as “Drums filled with many small containers packed in non-biodegradable absorbent materials.”   This type of packaging is most commonly used when a hazardous waste generator – not necessarily a “lab” – has many small containers of hazardous waste for disposal.

To use the exception, the lab pack must meet the requirements of 49 CFR 173.12(b) which first specifically identifies the hazardous wastes that may not take advantage of this exception or any other found in this section, they are:

1. A material poisonous-by-inhalation
2. A Division 6.1, Packing Group I material
3. Chloric Acid
4. Oleum (fuming sulfuric acid)

173.12(b) goes on to identify the Class and Division of lab packed hazardous waste that are authorized to use this exception as long as they are packaged in combination packagings as required by this section (see below) and are shipped for disposal by highway, rail, or cargo vessel; they are:

• Class 3 Flammable or Combustible Liquid
• Division 4.1 Flammable Solid
• Division 4.2 Spontaneously Combustible
• Division 4.3 Dangerous When Wet
• Division 5.1 Oxidizer
• Division 5.2 Organic Peroxide
• Division 6.1 Poison
• Class 8 Corrosive
• Class 9 Miscellaneous

What are the combination packaging requirements of this section that must be used if the hazardous waste lab packs are to utilize the exception?  Well, briefly…

The inner packaging must either be glass of ≤4 L (1 gal) rated capacity or metal or plastic of ≤20 L (5.3 gal) rated capacity.  Inner packagings of liquids must be surrounded by a chemically compatible absorbent material sufficient to absorb the liquid contents.

The outer packaging may contain only one Class of waste material, may not contain incompatibles (ie. acid and base, some organic and inorganic, etc.), and it must be a type of packaging listed in 49 CFR 173.12(b)(2)(ii).  Note that the US EPA land disposal restrictions at 40 CFR 268.42(c) limit the packaging/container you may use if the entire lab pack is going straight to landfill or incineration.  By and large a open-top steel drum of at least packing group III condition will be OK.  Also The gross weight of the combined packaging (inner & outer packaging, absorbents and contents) may not exceed 205 KG (452 lb).

So, before you prepare a lab pack of hazardous waste for off-site shipment, ask yourself, “Is it…

• not a prohibited material?
• an authorized Class or Division?
• to be shipped by highway, rail, or cargo vessel?
• packaged in compliance with combination packaging requirements of 49 CFR 173.12(b)(2)(ii)?

If you answered ‘yes’ to all of the above, then lab pack shipments of the hazardous waste are not subject to the transportation segregation restrictions if they also are blocked and braced so that they are separated from incompatible materials by at least 4 feet horizontally and maintained at least 4 inches off the floor of the vehicle.

I suggest you read 173.12(e) as necessary for a full description of additional requirements for shipments of the following incompatible materials.

1. The vehicle may not contain Class 1 explosives, Class 7 radioactive, or uncontainerized hazardous waste.
2. Waste cyanides and waste acids must be packaged as specified in 173.12(e)(2).
3. Waste Division 4.2 Spontaneously Combustible and Class 8 Corrosive Liquids must be packaged as specified in 173.12(e)(3).
4. Waste Division 6.1, PG I, Hazard Zone A Poison Inhalation Hazards and Class 3, Class 8 liquids, or Division 4.1, 4.2, 4.3, 5.1, and 5.2 materials must be packaged as specified in 173.12(3)(4).

If you are a generator of hazardous waste, one regulatory requirement you are no doubt familiar with are the limits on the number of days you may accumulate hazardous waste on-site without a permit.  These limits are:

1. Large Quantity Generator (LQG) – no more than 90 days.
2. Small Quantity Generator (SQG) – no more than 180 days.
3. Conditionally Exempt Small Quantity Generator (CESQG); aka: Very Small Quantity Generator (VSQG) in some states, no time limit.

Take this brief survey to determine your hazardous waste generator status if you are unsure.  There are exceptions to every rule, however, as there are exceptions to the 0n-site accumulation time limits for LQGs and SQGs.

Extensions available to LQGs found throughout 40 CFR 262.34:

1. 262.34(b) allows an LQG to accumulate hazardous waste on-site beyond 90 days if they have been granted an extension by the USEPA for “unforeseen, temporary, and uncontrollable circumstances”.  The extension may be for up to 30 days and is granted at the discretion of the Agency on a case-by-case basis.
2. 262.34(g) allows an LQG who also generates an F006 listed hazardous waste (wastewater treatment sludges from electroplating operations) to accumulate the F006 listed hazardous waste only on-site for up to 180 days.  No notification to the US EPA is necessary, however, the generator must comply with the requirements of 262.34(g)(1-4) to take advantage of this exception (read about the F006 waste extension).
3. 262.34(h) allows LQGs who take advantage of 262.34(g) to extend their on-site accumulation beyond 180 days to 270 days if its Treatment Storage and Disposal Facility (TSDF) is at least 200 miles away or greater from its facility.  The generator doesn’t need to gain the permission of the USEPA in order to take advantage of this extension, though be prepared to explain why you chose a TSDF 200 miles away instead of one closer.
4. 262.34(i), similar to 262.34(b), allows for a 30 day extension of the 180 or the 270 day limit for F006 waste if the generator is granted an extension from the USEPA due to, “unforeseen, temporary, and uncontrollable circumstances”.  As before, this extension is granted at the discretion of the Agency on a case-by-case basis.

Extensions available to SQG’s also found in 40 CFR 262.34:

1. 262.34(e) allows an SQG to accumulate hazardous waste on-site for up to 270 days if its TSDF is at least 200 miles away or greater from its facility.  The generator doesn’t need to gain the permission of the US EPA in order to take advantage of this extension.  Be prepared to justify your selection of a TSDF that is 200 miles away or more.
2. 262.34(f) allows an SQG to accumulate hazardous waste on-site beyond 180 or 270 days if they have been granted an extension by the USEPA for “unforeseen, temporary, and uncontrollable circumstances”.  The extension may be for up to 30 days and is granted at the discretion of the Agency on a case-by-case basis.

262.34(j-l) lists extensions available to Performance Track Members, but don’t waste time on these, the National Environmental Performance Track is kaput.

If your shipment of hazardous waste is rejected by the designated facility for some reason, 262.34(m) allows both LQGs and SQGs in this situation to manage their waste subject to the routine 90/180 day time limits, request an extension from the Agency for an additional 30 days, or – for SQGs only – keep the waste for up to 270 days if the TSDF is 200 miles away or greater.

There is one more extension to the 90/180 time limit allowed by regulation and that is for hazardous waste in Satellite Accumulation Areas pursuant to 40 CFR 262.34(c).  This exception allows unlimited time for on-site accumulation of hazardous waste (some states differ) without permit  or permission from the USEPA, it does however, come with some rather vague requirements that I will address in a later article.

The regulations can seem strict and unyielding, but built into them are exceptions that may make your life as a hazardous waste generator easier if you know where they are and how to use them.  Proper training can point you in the right direction.

You may have heard of the Resource Conservation and Recovery Act (RCRA) or the Hazardous Materials Transportation Uniform Safety Act.  These Acts passed by Congress and signed by the President typically contain broad outlines of what the government wishes to accomplish.  Acts such as these empower Federal agencies like the US Environmental Protection Agency, the US Department of Labor, or the US Department of Transportation to turn the broad goals of the Act into specific regulations or rules which have the force of law.  The regulations of these three agencies and many others of general applicability to the public with current and future effect are published in the Federal Register for review and comments prior to being codified in the Code of Federal Regulations (CFR).

The CFR is organized into 50 titles according to broad subject matter categories, such as:  Labor (29), Environment (40), and Transportation (49).  These three titles, especially, should be familiar to manufacturing and transportation-related businesses in the US, as they are the source for most of the regulatory compliance issues they face.  Finding the exact regulatory citation you need can be a challenge.  It can be even harder if you don’t know the structure of the CFR and how the regulations are arranged.  This article is meant to change that.  A comforting fact is that except for titles 3, 41, & 48 the CFR has a uniform numbering system, so what you learn here should apply in most cases.  Here, in descending order, is the organizational system of the CFR.

Title – as mentioned above, this represents a broad subject area of regulations.  Title 40 of the CFR – or 40 CFR – contains all of the regulations of the US EPA.  49 CFR, the regulations of the Department of Transportation, and so on.

Subtitle – if used at all – title 40 doesn’t – separates the administrative rules of the agency itself (usually in Subtitle A) from the regulations it is responsible for (usually in Subtitle B).

Chapter – contains the rules of the issuing agency and usually bears its name (ie. the Pipeline and Hazardous Materials Safety Administration, Department of Transportation).

Subchapter – a further refinement of the chapter, if necessary.

Part – contains rules on a single program or function.

Subpart – a further refinement of the part, if necessary.

Section – is the basic unit of the CFR (ie. 40 CFR 262.34).  It typically contains one provision of program/function rules.  A section may contain up to six – yeah, that’s right, six – levels of paragraphs depending on the complexity of the regulations.  It gives me some comfort to know that the agencies arerecommended to use no more than three levels of paragraphs in one section.  The six levels of paragraphs in a section would look like this.

• Level 1 (aka. Paragraph) Displayed in the CFR as: (a), (b), (c), etc.
• Level 2 (aka. Subparagraph) Displayed in the CFR as: (1), (2), (3), etc.
• Level 3 (aka. Sub-subparagraph) Displayed in the CFR as: (i), (ii), (iii), etc.
• Level 4 Displayed in the CFR as: (A), (B), (C), etc.
• Level 5 Displayed in the CFR as: (1), (2), (3), etc.
• Level 6 Displayed in the CFR as: (i), (ii), (iii), etc.

You may observe the word Reserved used throughout the CFR in place of the above headings, in these cases an agency is using Reserved as a placeholder to indicate that it may insert regulations into this location sometime in the future or to indicate that a portion of the CFR was intentionally left empty.

Titles are completely revised and reissued once each year on a staggered schedule:

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

If you are subject to any federal regulations I advise to obtain access to the Code of Federal Regulations for yourself.  It is a must for anyone who manages EHS compliance in manufacturing, transportation, or any commercial entity.  Access can be gained in a few different ways:

• There are commercial services that can provide you with online access to all or portions of the CFR as you require.  Though not without cost, these services can be very valuable as they allow you to bookmark frequently used regulations and also contain hyperlinks to follow along when one regulation references another.  Though there are others out there, the one I am familiar with and recommend is CyberRegs.
• An on-line version of the CFR is available for free from the Legal Information Institute of Cornell Law School.
• Hardcopies can be purchased from the Government Publishing Office.
• The GPO also provides a free on-line version of the CFR: eCFR

Gaining access to the regulations of the USEPA and the USDOT is a good first step.   Assembling an understanding of how the regulations apply to your operations is a bit more complicated and can be intimidating.  Attendance at one of my training events will help you to understand which of the regulations apply to your operations, which you need to pay very close attention to, and where you may find exceptions from full regulation.  On-site training goes further and will explain state regulations as well that apply to your generation of hazardous waste and transportation of hazardous materials.

You are no doubt aware that the US Environmental Protection Agency is serious about enforcing its regulations in order to live up to its mandate to protect the environment.  The Office of Enforcement and Compliance Assurance (OECA) within the US EPA is tasked with carrying out this enforcement through a variety of measures.  From its website, the OECA…  “aggressively goes after pollution problems that make a difference in communities through vigorous civil and criminal enforcement that targets the most serious water, air and chemical hazards. OECA also advances environmental justice by protecting vulnerable communities.”

How do they do this?  Again, from its website:  “Through improved transparency and community participation, we are enlisting the public’s assistance to ensure compliance nationwide, and that no entity enjoys an unfair economic advantage from noncompliance with the nation’s environmental laws.” It’s the reference to “…improved transparency and community participation…” that should be of concern to the regulated community.  I am in favor of transparency.  I think our businesses, government, and communities function better when we have equal access to public information.  As a business, however, you should be aware that to a greater degree than ever before, information about your company – especially the results of inspections, investigations, and enforcement actions – are made available to the public.

One example of this is the US EPA Compliance and Enforcement Annual Results for 2011 Fiscal Year.  This website contains a wealth of information about US EPA’s enforcement and compliance activities for the year just past.  It includes a lot of bare statistics of interest that you may wish to peruse, but of more interest to the regulated community is the Enforcement Cases Map.  Once opened, you may select or unselect the type of enforcement activities you are interested in, in my case “Waste”.  The map will then reveal the location of all US EPA investigations that resulted in enforcement for violations of the Resource Conservation and Recovery Act (RCRA).  Click on a location and you may read information about the site.  Select “More Information” and you are taken to the US EPA’s website:  Enforcement and Compliance History Online (ECHO).  Here you find a “Detailed Facility Report” which contains a snapshot of the facility’s compliance history with the US EPA, not just waste, but air, water, emergency reporting, and more.

It has been – and will continue to be – a priority of the Obama administration to make public information easily available to the public.  As a business, you need to be aware of this reality and be prepared to take the following steps:

1. Review any information about your company that is made public to ensure it is accurate.  Make corrections if it is not.
2. Communicate proactively with your neighbors, community, state, region, etc. to inform them of what you are doing to maintain your business within the limits of the regulations.  Also inform them of any efforts beyond the regulations to reduce, reuse, and recycle.
3. Avoid violations in the first place by ensuring compliance with the regulations.

For this last point, I suggest you attend one of my EPA & PHMSA/DOT open enrollment training events.  There, in one day, you will get a good understanding of the US EPA regulations for the management of hazardous waste and the PHMSA/DOT regulations for the transportation of hazardous materials.

If you have many employees to train, contact me for on-site training where for one flat fee of $1,749 for one day I can train as many as you need.

A person that generates any waste is required to determine if that waste is a hazardous waste pursuant to the method identified in 40 CFR 262.11.  The US EPA has identified two different categories of hazardous waste:  listed and characteristic.  To be listed a hazardous waste must meet the defined use or status documented at 40 CFR 261, Subpart D.  As there are no approved test methods for the determination of a listed waste; generators must rely on their knowledge of the wastes origins.  Listed wastes include the following:

• F-listed waste from non-specific manufacturing process sources –waste codes F001 to F039.
• K-listed waste from specific manufacturing process sources – waste codes K001 to K181.
• P & U-listed waste from discarded commercial chemical products, off-specification species, container residues, and spill clean-up materials – waste codes P001 to P205 and U001 to U411.

The other category of hazardous waste:  characteristic, must exhibit specific characteristic as defined at 40 CFR 261, Subpart C.  To determine the presence of hazardous waste characteristics, a hazardous waste generator may rely solely on their knowledge of the waste and the process of generation, but the better method is lab analysis by a US EPA-approved test method of a representative sample.  Characteristic hazardous waste includes the following:

• Ignitability – waste code D001
• Corrosivity – waste code D002
• Reactivity – waste code D003
• Toxicity – waste codes D004 to D043

Ignitable hazardous waste as defined at 40 CFR 261.21 may have one of four properties:

• A liquid with a flash point of <140˚F.
• A solid that can cause a fire and sustain combustion.
• An ignitable compressed gas.
• An oxidizer.

The above four bullet points only skim the surface of the properties that would cause a waste to be identified as an ignitable hazardous waste.  The purpose of this article is to dig deeper into these properties to gain a better understanding of ignitable hazardous waste and perhaps cause you to rethink how you are currently applying the D001 waste code to your hazardous waste.  We’ll look at each of the properties one at a time; I suggest you print a copy of the regulations – it’s only two pages – and follow along.

A liquid with a flash point of <140˚F:

How 40 CFR 261.21(a)(1) reads:  “It is a liquid, other than an aqueous solution containing less than 24 percent alcohol by volume and has a flash point less than 60˚C (140˚F)…”  It goes on to reference the two approved test methods for determining flash point of the liquid which must be used.

The first point of interest is the exception for aqueous solutions containing <24% alcohol.  This is interesting because though it was placed in the regulation solely to remove alcoholic beverages and certain latex paints from being categorized as an ignitable liquid, it has the affect of exempting from regulation as a D001 Ignitable all aqueous wastes which are ignitable solely because they contain alcohols (i.e. any chemical containing the hydroxyl [-OH] functional group) (RO 11060).

The second, and potentially much more important, point of interest is the requirement that the waste be a liquid in order to test for flash point.  So…no liquid, no test for flash point, no liquid flash <140˚F, no ignitable hazardous waste (RO 14669, RO 14405).  This is true even if the solid, with no liquid present, flashes at <140˚F.  To meet this requirement, the waste must contain a free liquid that fails the paint filter test.  The determining factor – the flash point – is run on that liquid only.  This property should be determined entirely by careful analysis of representative samples.  Be sure the lab conducting the analysis is aware of your needs.

A solid that can cause a fire and sustain combustion:

A solid without free liquids may still be an ignitable hazardous waste if it exhibits the properties of a solid that can cause a fire and sustain combustion.  40 CFR 261.21(a)(2) reads, “It is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard.”  Refer again to RO 14669 and you will read, “The Agency has not developed specific regulatory or guidance tests to implement this portion of the regulation.”  It is referring to its lack of a single approved test method to identify a solid ignitable hazardous waste in full.  RO 14405 references  SW-846 Method 1030, Ignitability of Solids as a means to assess a solids ability to burn vigorously, but not its mode of ignition; and so may not be used to make a complete determination.  Note that the requirement for this property is that it both cause a fire by itself and sustain combustion to the point that it causes a hazard.  You will have to use a combination of tests and generator knowledge to make a determination if this property is present in your waste.

An ignitable compressed gas:

I won’t reprint all of the regulation here, as it is long, technical, and my transcription won’t aid understanding.  Instead, I suggest you read it directly from 40 CFR 261.21(a)(3)(i) if you generate any waste that might be an ignitable compressed gas.  As you read, consider the two distinct descriptions in this subparagraph of…

1. A compressed gas in sub-subparagraph (i); and,
2. An ignitable compressed gas in sub-subparagraph (ii).

Note that the determination of a compressed gas’ ignitability relies on test methods approved by the Bureau of Explosives (how do I get a job with them?) and the Pipeline and Hazardous Technology of the Department of Transportation.

An oxidizer:

The hazard of an oxidizer is that it is capable of releasing oxygen during a chemical reaction and multiplying the danger of a fire.  40 CFR 261.21(a)(4) reads, “An oxidizer for the purpose of this subchapter is a substance such as a chlorate, permanganate, inorganic peroxide, or a nitrate, that yields oxygen readily to stimulate the combustion of organic matter.”  Sub-subparagraph (i) includes organic peroxides as an oxidizer unless other conditions in the subparagraph exclude it.  Like the ignitable compressed gas, the regulatory description is long and technical, so I won’t include it here.  And like the flammable solid, this property does not have a test method; instead the chemical structure of the material determines whether or not the waste is hazardous for ignitability as an oxidizer.  Be sure you have Material Safety Data Sheets or other sources of information with the chemical composition of your waste available as you read the regulations and determine if this property of ignitability applies to your waste.

Summary:

The ignitability hazardous waste characteristic identifies wastes that pose a significant fire risk due either to their low flash point, ability to self-combust and burn, or are able to combust or support combustion due to their physical properties.  If any one of the above properties is present, you must manage the waste as a D001 ignitable hazardous waste.  Keep in mind that other characteristic or listed waste codes may apply to the waste as well.  Conversely, take a second look at some of the wastes you’ve identified as ignitable, a close review of the above information and some careful analysis may reveal them to not meet the definition of ignitability.

Be sure to check with your state environmental regulatory agency or regional US EPA to determine their interpretation of the above, especially the determination of ignitability for solids that are contaminated with flammable liquids, such as wipers. The US EPA has been proposing regulation for solvent-contaminated wipers for years (perhaps 2012 is the year for a final rule, stay tuned) but in the meantime many states have gone ahead with US EPA’s blessing to create state-specific interpretations.

The above is only one small part of the hazardous waste determination process, which is something you must document for every waste that you generate.  The determination itself is only the first step in identifying your hazardous waste generator status and then the regulations you must follow based on your status.  It may seem overwhelming, but there is a way to make sense of US EPA’s hazardous waste regulations: attend one of my open enrollment training events.  Held nationwide and year round there is sure to be one in your area soon.  Or contact me to schedule on-site training for all of your employees for one flat fee.  If you liked this article, be sure to sign up for my monthly newsletter to receive more like it via email.  I look forward to hearing from you.