Hazardous Waste Determination

When is a Product Abandoned? When is a Product Discarded? When is a Product a Waste?

The title of this article contains three questions, but really they are all the same.  If you have a product that has been abandoned, then it has been discarded; and if a product has been discarded, then it is a solid waste.  Once you have determined your product is a solid waste, you must conduct a hazardous waste determination and identify its final status as a hazardous waste, non-hazardous waste, or perhaps a waste with an applicable exclusion from regulation.

A question I frequently receive at my Public Training Seminars and my Onsite Training goes something like this,

Company A has a 55-gallon drum of an unused product in storage.  The container is unopened and it is believed that the contents are still usable, however Company A has no immediate plans for use and does not know what it is going to do with the drum.  Based on the MSDS and generator knowledge the product will be a hazardous waste when disposed of.  When, if ever, must Company A begin to manage the unused product as a hazardous waste?

This is tough question because the regulations can only take you so far.  After that it is up to you as the generator of the waste to determine if the product in question is a solid waste and if so, is it a hazardous waste.  This article will review the applicable Federal regulations of the US EPA to help identify when a product becomes a waste.  It will also provide some criteria to follow when making your decision of Product v. Waste. (more…)

40 CFR 261.4(a)(7) – The RCRA Exclusion From the Definition of Solid Waste for Spent Sulfuric Acid

40 CFR 261.4(a)(6) – The Exclusion From Definition of Solid Waste for Pulping Liquor

40 CFR 261.4(a)(22) – Used Cathode Ray Tube Exclusion from Regulation as a Solid Waste

Mixtures of Hazardous Waste and Used Oil

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.

40 CFR 261.4(a)(17) The Mineral Processing Secondary Materials Being Recycled Exclusion From Regulation as a Solid Waste

What are ICR-Only Listed Hazardous Waste?

A requirement of a generator’s hazardous waste determination is to determine if their waste is listed at 40 CFR 261, Subpart D.  The four lists that make up the hazardous waste listing are:

  • F-List for generic industrial sources.
  • K-List for specific industrial processes.
  • P or U-List for unprocessed commercial chemical products.

Any solid waste that isn’t excluded elsewhere and matches the description of a hazardous waste listing is a hazardous waste and subject to full regulation under RCRA.

The US EPA uses three (3) different criteria to determine whether or not to include a process or chemical in one of the four hazardous waste listings, the three criteria are:

  1. The waste typically contains toxic chemicals at levels that could pose a threat to human health and the environment if improperly managed.  If this criteria is the basis for listing a waste it is assigned a hazard code of T for Toxic Waste.
  2. The waste contains such dangerous chemicals that it could pose a threat to human health and the environment even when properly managed.  These wastes are fatal to humans and animals in low doses.  If this criteria is the basis for listing a waste it is assigned a hazard code of A for Acute Hazardous Waste.
  3. The waste typically exhibits one of the four characteristics of hazardous waste:  Ignitability, Corrosivity, Reactivity, Toxicity.  If this criteria is the basis for listing a waste it is assigned a hazard code according to its characteristic:  Ignitable Waste (I), Corrosive Waste (C), Reactive Waste (R), Toxicity Characteristic Waste (E).

Note the following:

  • The reference to “hazard code” should not be confused with “hazardous waste codes”.  The “hazard code” is an indication of the US EPA’s reasoning for listing the waste.  A “hazardous waste code” is assigned to all wastes determined to be hazardous (either characteristic or listed).
  • A Toxic Waste (T) differs from a Toxicity Characteristic Waste (E).  The Toxic Waste meets the first of the three criteria, that is it typically contains toxic chemicals that could pose a threat if improperly managed.  The Toxicity Characteristic Waste exhibits the characteristic for Toxicity which is a basis for listing a waste identified in the third criteria.
  • The four characteristics of hazardous waste – Ignitable, Corrosive, Reactive, & Toxic – are described in §261, Subpart C.
  • A waste that is determined to be a listed hazardous waste solely because it exhibits one or more characteristics of Ignitability, Corrosivity, or Reactivity is known as an ICR-Only Listed Waste.
  • There are 29 ICR-Only Listed Wastes:

Waste Code

Description

Hazard Code
F003

Non-halogenated spent solvents

I
K044

Wastewater treatment sludges from explosives

R
K045

Spent carbon from treating explosive wastewater

R
K047

Pink/red water from TNT operations

R
P009

Ammonium picrate

R
P081

Nitroglycerine

R
P112

Tetranitromethane

R
U001

Acetaldehyde

I
U002

Acetone

I
U008

Acrylic acid

I
U020

Benzenesulfonyl chloride

C, R
U031

n-Butyl alcohol

I
U055

Cumene

I
U056

Cyclohexane

I
U057

Cyclohexanone

I
U092

Dimethylamine

I
U096

Cumene hydroperoxide

R
U110

Di-n-propylamine

I
U112

Ethyl acetate

I
U113

Ethyl acrylate

I
U117

Ethyl ether

I
U124

Furan

I
U125

Furfural

I
U154

Methanol

I
U161

Methyl isobutyl ketone

I
U186

1,3-Pentadiene

I
U189

Sulfur phosphide

R
U213

Tetrahydrofuran

I
U239

Xylene

I
  • A waste that matches the description of an ICR-Only Listed Waste is not assigned the listed hazardous waste code if it does not exhibit the applicable hazardous waste characteristic at the point of generation.  Example:  Spent acetone used as a solvent matches the listing description for F003 (non-halogenated spent solvent).  F003 has a Hazard Code of I for the characteristic of Ignitability.  If the spent solvent does not exhibit the characteristic of Ignitability at the point of generation, then the F003 hazardous waste code would not apply.
  • Additionally, if an ICR-Only Listed Waste is mixed with a solid waste the resulting mixture does not retain the listed hazardous waste code if the mixture does not exhibit the applicable hazardous waste characteristic [40 CFR 261.3(g)(2)(i)].  Example:  Spent acetone used as a solvent matches the listing description for F003 (non-halogenated spent solvent).  F003 has a Hazard Code of I for the characteristic of Ignitability.  If the spent solvent is mixed with a non-hazardous waste so that the resulting mixture does not exhibit the characteristic of Ignitability, then the F003 hazardous waste code would not apply.
  • Read more about F-Listed Spent Solvents.

The fact that an ICR-Only Listed Waste retains its listed hazardous waste code only if the applicable characteristic hazardous waste is exhibited may play a crucial role in your hazardous waste determination.  This then will impact your hazardous waste generator status and all subsequent regulations with which you must comply.  Make certain you have conducted the hazardous waste determination correctly and documented the outcome.  As always check with your state regulatory agency on issues such as these and please don’t hesitate to contact me with any questions.

40 CFR 261.4(a)(14) – The Shredded Circuit Board Exemption From the Definition of Solid Waste

Determining Your Hazardous Waste Generator Status

The determination of your hazardous waste generator status is necessary in order to identify which of the RCRA regulations (Federal & State) apply to your operations and what you must do to ensure compliance.  This determination is based on the amount of non-exempt hazardous waste you generate in a calendar month.

In a future article I will address the determination of hazardous waste generator status based on the generation of acute hazardous waste and the amount of hazardous waste accumulated on-site.

Some States have their own criteria for determining hazardous waste generator status, do not recognize all three of the US EPA status, and/or have added an additional status level to the base three of the US EPA; so be sure to check with your State.  However, the three categories of hazardous waste generator status identified by the US EPA and most States are:

  • Large Quantity Generator of hazardous waste (LQG).
  • Small Quantity Generator of hazardous waste (SQG).
  • Conditionally Exempt Small Quantity Generator of hazardous waste (CESQG).  In some states this same status is referred to as:  Very Small Quantity Generator or VSQG.

Take this survey to determine your generator status, but before you do, read below to ensure you understand properly the terms used in making this determination.

“Generates”:  The determination is based solely on the amount of hazardous waste generated.  It does not include hazardous waste that was shipped off-site for disposal, accumulated onsite, or the amount moved from one accumulation area to another within the same facility.  This includes the transfer of hazardous waste from a Satellite Accumulation Area to a Central Accumulation Area (aka:  90/180 Day Accumulation Area).  Read here to learn how to avoid double-counting your hazardous waste.

“Hazardous Waste”:  You need only account for hazardous waste.  Other forms of waste that are non-hazardous (not listed or characteristic hazardous waste), exempt from regulation as a solid waste or hazardous waste, or perhaps are a “de-regulated” form of hazardous waste:  Universal Waste or Used Oil; are not counted towards the determination threshold.  This article has more information about the types of waste not counted for the hazardous waste determination.

“Calendar Month”:  The determination is based on a calendar month, not a 30 day rolling time period, or an average taken over a year, or anything else.  As a generator of hazardous waste, you must make your determination anew for each month of the year.  Changes to your generator status on a month-to-month basis are addressed by the US EPA as Episodic Generator Status.

“You”:  The determination is limited to the hazardous waste generated by you at your site.  A generator site is a fixed geographic location and may include contiguous parcels under the same ownership instead of a single property.  There are some gray areas where another person may generate a hazardous waste at your site, this is known as Co-Generator Status.  Read this earlier article for an explanation of Co-Generator Status.

Do your homework and prepare yourself prior to conducting your hazardous waste determination.  If you have already determined your status, I suggest you check it again periodically – even monthly – to ensure there has not been a change in your status.  As always, please don’t hesitate to contact me with any questions.

Industrial Wastewater Discharge Exclusion From Regulation as a Solid Waste 40 CFR 261.4(a)(2)

The hazardous waste regulations of the Resource Conservation and Recovery Act (RCRA) created and enforced by the US EPA include an exclusion from regulation as a Solid Waste for certain Industrial Wastewater Discharges.