40 CFR 262.11 requires a hazardous waste determination be completed by all generators of solid waste for all waste they generate (read this article on the Hazardous Waste Determination).  To complete the determination may require a combination of samples analysis and application of your knowledge of the waste. It is important to note that the regulations do not specify, nor require, one of these methods of determination (analysis-based v. knowledge-based) over the other.

An outline for the process of hazardous waste determination can be found at 40 CFR 262.11, it reads:

Step 1:  Determine if the solid waste is excluded from regulation as a hazardous waste per 40 CFR 261.4, and;

Step 2:  Determine if the waste is a listed hazardous waste pursuant to 40 CFR 261, Subpart D.

The regulations do not specify a method to make the determinations in steps 1 & 2, however, it is assumed that both will rely on the generator’s knowledge of his waste and the applicable regulations (ie. knowledge-based) since there are no test methods available for the determination of a regulatory exclusion (Step 1) or for the presence of a listed hazardous waste (Step 2).

Step 3:  Determine if the waste is a characteristic hazardous waste pursuant to 40 CFR 261, Subpart C.  The regulations do specify that this determination may be made by one of two methods:

1. Analysis-Based.
2. Knowledge-Based.

An analysis-based hazardous waste determination requires you to collect a representative sample of the solid waste and submit it to an  accredited lab for analysis by an approved test method.

The performance of a knowledge-based hazardous waste determination relies on your familiarity with the processes generating the waste and/or your ability to gather any additional information necessary to make the determination.  Sources of information in order to make your hazardous waste determination may include:

• Material Safety Data Sheets (MSDS).
• Information from employees or contractors involved in the process of generating the waste.
• Information from suppliers or vendors.

Many generators of hazardous waste are surprised to learn that an analysis-based method is not required in order to determine the presence of a characteristic hazardous waste.  US EPA assumes that as the generator of a solid waste you have available the information necessary to make the hazardous waste determination without resorting to analysis of a sample of the waste.  However, in many cases, such as flash point analysis for the determination of the characteristic of Ignitability, an analysis-based method is inexpensive and may carry more weight with an inspector.

Regardless of the method used to make your hazardous waste determination, 40 CFR 262.40(c) requires you to keep records of any test results, waste analyses, or other information for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal, so if your determination is knowledge-based, you must still have some form of documentation to back-up your results.

The US EPA does not specify a method for the hazardous waste determination, it does however hold you as the generator of the waste solely responsible for the correct completion of the determination (RO 13570).

At my training I cover the hazardous waste determination in detail and tell you what you need to know to complete the determination at you facility.  Please contact me with a question about the hazardous waste you generate and your training needs.

The Biennial Hazardous Waste Report (due March 1st of every even numbered year for the previous calendar year) is a requirement of the US Environmental Protection Agency for the following:

• Treatment, Storage, and Disposal Facilities (TSDF’s) of hazardous waste.
• Large Quantity Generators (LQG’s) of hazardous waste.
• Small Quantity Generators (SQG’s) of hazardous waste who receive a notice to submit the Report.

However, States with an Approved Hazardous Waste Program may require the Report to be submitted annually (March 1st of every year for the previous calendar year).

Read about the 2011 Hazardous Waste Report due March 1st of 2012.

Until recently Ohio was a state with an approved hazardous waste program that required the Hazardous Waste Report to be submitted annually.  That changed with Ohio Senate Bill 294 which was signed into law by Governor John Kasich in early June and became effective September 5, 2012.  The Ohio EPA does a good job of summarizing how this will impact regulated industry within the state, so I’ll quote the website.

Generator and Facility Report Frequency will change from Annual to Biennial

Senate Bill 294 was signed by the Governor in early June, and becomes effective September 5, 2012.  One component of that bill allows the Director of Ohio EPA to report certain hazardous waste management data to the Governor biennially now instead of annually.  Ohio EPA intends to change certain annual reporting requirements to biennial reporting requirements to correspond with the federal program. 

Under these intended rule changes, your “Hazardous Waste Annual Report” currently due March 1, 2013, for 2012 data would not be required to be submitted to Ohio EPA.  Your first biennial report would be due March 1, 2014, for 2013 data. 

However, if you normally submit other reports/data with your annual report that are not part of that report (e.g., the ground water monitoring annual report required by OAC 3745-65-94), those other reports/data will maintain their annual reporting requirement.

It is our goal to have annual to biennial rule amendments effective prior to March 1, 2013. If the process is delayed for some reason, Ohio EPA will use enforcement discretion and you will not be held to the annual report requirement that is changing to biennial.

So there you have it, right from the Ohio EPA website.  While this will reduce the reporting requirement for hazardous waste generators in Ohio, it doesn’t affect any other rules applicable to generators of hazardous waste, such as the requirement for Large Quantity Generators of hazardous waste to provide annual training for Facility Personnel who may come into contact with hazardous waste or respond to a hazardous waste emergency.  The requirement for training can be found at 3745-65-16 of the Ohio Administrative Code referenced from 3745-52-34(A)(4).

Whether you are located in Ohio or anywhere else in the Union, the hazardous waste regulations of both State and Federal agencies are constantly changing and require you to keep abreast of those changes.  Contact me with questions about the hazardous waste regulations in your state or arrange to attend one of my training sessions.

Contact Information: Ben Washburn, 913-551-7364, washburn.ben@epa.gov

(Kansas City, Kan., Oct. 1, 2012) – Bayer CropScience LP has agreed to pay a $13,900 civil penalty to the United States to settle a series of environmental violations related to the distribution of mis-branded pesticides through its facility in Kansas City, Mo.

According to an administrative consent agreement and final order filed by EPA Region 7 in Kansas City, Kan., an inspection of Bayer’s Kansas City facility in November 2011 found that on November 28, 2011, Bayer CropScience shipped a quantity of the pesticide Ethosumesate, without a product label, an EPA registration number, or an EPA producing establishment number.

In December 2011, EPA Region 7 received two Notices of Arrival from Bayer for the importation of two separate shipments due that month of quantities of unregistered Methomyl insecticide for the purpose of producing the product into the registered product Larvin Technical. The label provided by Bayer for the two shipments of the unregistered pesticide contained a false or misleading statement in its “Directions for Use” section.

The labeling deficiencies related to the two pesticides were in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), according to the settlement.

The sale or distribution of misbranded or mislabeled pesticides can pose serious risks to human health, plant and animal life, and the environment. Without proper labeling or safety instructions on packaging, users can unintentionally misapply pesticides and may not have adequate information to address needs for first aid in the event of emergency.

As a result of EPA’s enforcement action, Bayer CropScience LP was required to relabel all of the shipments in question. The company has also instituted changes in its practices to prevent similar violations.

Read this article to learn if your pesticide could be managed as a Universal Waste at a greatly reduced regulatory burden.  Or contact me to discuss your obligation to train your HazMat Employees and Hazardous Waste Personnel.

To paraphrase 40 CFR 262.11:  A person who generates a solid waste must determine if that waste is a hazardous waste using the following method:

1. Is it excluded from regulation?
2. Is it a listed hazardous waste?
3. Is it a characteristic hazardous waste?

An in-depth explanation of the process of the Hazardous Waste Determination will have to wait for another article.  The purpose of this article is to make clear who must complete a Hazardous Waste Determination and what it entails.  From the simple segment of the regulations above, the US EPA and authorized states have clarified the following:

1. A “person” is any individual or the business or government entity they represent.  This previous article explains this term more in-depth, but rest assured, if you own a business or work for a business or government entity, including the US Military, you are a person in the eyes of the US EPA and therefore subject to the regulations.
2. The requirement to complete a Hazardous Waste Determination applies to all status of hazardous waste generators.
• The requirement for a Large Quantity Generator (LQG) can be found at 40 CFR 262.40(c).
• The requirement for a Small Quantity Generator (SQG) can also be found at 40 CFR 262.40(c) referenced from 40 CFR 262.44(a).
• And in an interpretation letter, US EPA clarified that the requirement to conduct a Hazardous Waste Determination applies to a Conditionally Exempt Small Quantity Generator (CESQG) as well (RO14030).  However, a CESQG is not required to retain records of its Hazardous Waste Determination, though it is a good idea.
3. If you are a “person” (see #1 above) and if you are any status of hazardous waste generator (see #2 above) then you must complete a Hazardous Waste Determination.  It is not an option or a best management practice.  You can face serious fines for not completing the Hazardous Waste Determination.
4. Your Hazardous Waste Determination must be documented and a record of it maintained for at least three years from the last date the waste was sent off-site or remained on-site for treatment, storage, or disposal.
5. A Hazardous Waste Determination must be made for all solid waste that you generate.  This is important, because this extends the requirement to all of your waste, not just the hazardous waste.  A solid waste is defined at 40 CFR 261.2 as, “…any discarded material…” not excluded by regulation.  The full definition of a solid waste could take several more articles, and may require more research on your part, but suffice to say that if you are going to throw away or recycle a waste from an industrial or commercial process (including government entities) than it is a solid waste.  And all solid waste must have a documented record of its Hazardous Waste Determination.  I run the risk of repeating myself, but I think it an important enough point, and one I misunderstood in the past, that a documented record of a Hazardous Waste Determination is required for all of the waste you generate, whether hazardous or non-hazardous.

Read this article to learn if your Hazardous Waste Determination must be analysis-based or knowledge-based.

I confess that I am still learning the regulations as I write these articles, answer questions from my trainees, and conduct my training seminars.  I don’t think there will ever come a day where I sit back and say that I know it all, and you shouldn’t either.  Good training that is reasonably priced and readily available is hard to find, but contact me and I will help you to get the training you need (Hazardous Waste Personnel and HazMat Employee) to come into compliance and stay there.

The Universal Waste regulations of the US EPA at 40 CFR 273 provide an option for generators to manage what would be a hazardous waste according to a reduced regulatory burden.  Relaxed regulatory requirements for Universal Waste include, but are not limited to:

1. One year on-site accumulation time limit.
2. Universal Waste doesn’t count towards your Hazardous Waste generator status.
3. Uniform Hazardous Waste manifest not required for off-site shipments.
4. Reduced training requirements for facility personnel.
5. No inspection requirements.

The US Environmental Protection Agency currently identifies four (4) types of Universal Waste:

1. Lamps.
2. Batteries.
3. Mercury-Containing Devices.
4. Pesticides.

Read more about the Federal Universal Waste regulations.

States with authorized hazardous waste programs under RCRA are allowed to expand on this Federal list of Universal Waste, and many have.

The State of Pennsylvania, at Chapter 266b of its code, has added the following two wastes in addition to its adoption of the four Federal Universal Wastes:

1. Oil-Based Finishes.
2. Photographic Solutions.

The State code defines an Oil-Based Finish as:

Any paint or other finish that may exhibit, or is known to exhibit, a hazardous waste characteristic as specified in 40 CFR Part 261, Subpart C (relating to a characteristics of hazardous waste), or which contains a listed hazardous waste as specified in 40 CFR Part 261, Subpart D (relating to lists of hazardous wastes), and is in original packaging, or otherwise appropriately contained and clearly labeled.  Examples of oil-based finishes include, but are not limited to, oil-based paints, lacquers, stains and aerosol paint cans.

In other words, any paint, in any form (aerosols!), if it first meets the definition of a hazardous waste (characteristic or listed) can be managed as a Universal Waste in Pennsylvania.  It is, however, limited to paints and finishes, it does not include clean-up solvents or other paint-related waste.

Photographic Solutions are defined as “silver-bearing waste streams resulting from photographic processing solutions or rinse water.”

The identification of Oil-Based Finishes and Photographic Solutions as a Universal Waste is specific to Pennsylvania.  If these two Universal Wastes are shipped out of state for recycling, the Universal Waste regulations of the destination state must be considered and it is likely that your Oil-Based Finish or Photographic Solution will then have to be managed as a Hazardous Waste.

State-specific regulations such as these are best addressed during On-Site Training.  For On-Site Training I will work with you to create a presentation specific to your operations and only the regulations that your employees need to know.  Train all of your HazMat Employees and Facility Personnel in one day (or more if necessary).  Contact me for a free consultation.

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

 PHILADELPHIA (October 2, 2012) — Olson Wire Products Co. has agreed to pay a $80,000 civil penalty to settle alleged violations of hazardous waste regulations at its manufacturing facility located at 4100 Benson Ave., in Baltimore, Md., the U.S. Environmental Protection Agency announced today.

EPA cited Olson Wire, which manufactures steel wire shelving and fabricated wire products, 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 an inspection by on May 25, 2011 EPA cited the company for violations of federally authorized state regulations involving hazardous waste stored at the facility, including wastewater treatment sludge from the electroplating operations, spent lead anode rods from plating processes and used aerosol cans containing an enamel-based product that is sprayed onto metal parts in preparation for powder coating.

The alleged violations included the failure to make required hazardous waste determinations, storage of hazardous waste for periods greater than 90 days without a permit, failure to properly label and keep containers of hazardous waste closed during storage, offering hazardous waste for off-site transport and disposal without preparing approved manifest forms and through parties not authorized to transport or receive hazardous waste, failure to maintain training records of personnel having hazardous waste management responsibilities and failing to prepare and submit a biennial report concerning hazardous waste activities at the facility in calendar year 2009.

             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, Olsen Wire has neither admitted nor denied liability for the alleged violations, but has certified its compliance with applicable RCRA requirements.

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

The legislation known as RCRA (the Resource Conservation and Recovery Act) was passed in 1976, with regulations being enacted by the US EPA in 1980.  For the longest time, it was uncertain if the RCRA regulations applied to Federal facilities.  Some cited sovereign immunity to claim that they need not follow the RCRA regulations in managing their hazardous waste.  Others, voluntarily complied with RCRA in a haphazard way that made enforcement difficult.

To clear up this confusion, FFCA (the Federal Facilities Compliance Act) was passed in 1992.  It required federal facilities (those within the Executive branch of the US Government) to comply with the RCRA regulations enforced by federal, state, or local authorities or face civil and criminal penalties.  Federal facilities includes the US Armed Services, which resulted in waste generated by the military, including military munitions, becoming subject to RCRA regulations.  Confusion about the exact management requirements of military munitions under RCRA continued, however, until the passage of the Military Munitions Rule in 1997.  This rule clarified the point of generation of solid and hazardous waste for military munitions and who is subject to the regulations.

The rule created a definition of military munitions, found at 40 CFR 260.10:

Military munitions means all ammunition products and components produced or used by or for the U.S. Department of Defense or the U.S. Armed Services for national defense and security, including military munitions under the control of the Department of Defense, the U.S. Coast Guard, the U.S. Department of Energy (DOE), and National Guard personnel. The term military munitions includes: confined gaseous, liquid, and solid propellants, explosives, pyrotechnics, chemical and riot control agents, smokes, and incendiaries used by DOD components, including bulk explosives and chemical warfare agents, chemical munitions, rockets, guided and ballistic missiles, bombs, warheads, mortar rounds, artillery ammunition, small arms ammunition, grenades, mines, torpedoes, depth charges, cluster munitions and dispensers, demolition charges, and devices and components thereof.  Military munitions do not include wholly inert items, improvised explosive devices, and nuclear weapons, nuclear devices, and nuclear components thereof. However, the term does include non-nuclear components of nuclear devices, managed under DOE’s nuclear weapons program after all required sanitization operations under the Atomic Energy Act of 1954, as amended, have been completed.

Note the list of materials that the term military munitions includes, and doesn’t include (note my emphasis added to the above).  Also, be aware that the rule applies not only to the military, but to contractors or other parties acting as their agent.

Further, the rule amended §261.2(a)(2) to include military munitions identified as a solid waste per §266.202 as a 4th type of discarded material.  This is important, because in order to be a hazardous waste, and therefore subject to Cradle to Grave regulation, it must first be a solid waste.  The identification of a solid waste starts you on the path toward determination of a hazardous waste, if exemptions apply, and what regulations with which you must comply.

So, when is a military munition a solid waste?

The RCRA regulations at §266.202 (§266, Subpart M) identifies the status of four activities involving military munitions and whether or not they are a solid waste:

1. SOLID WASTE:  Unused munitions designated for disposal; these include:
1. Munitions that have been or are being disposed, burned, or otherwise treated prior to disposal [§266.202(b)(1)].
2. Munitions removed from storage for the purpose of being disposed, burned, or otherwise treated prior to disposal [§266.202(b)(2)].
3. Leaking or deteriorated munitions [§266.202(b)(3)].
4. When an authorized military official declares the munitions to be a solid waste [§266.202(b)(4)].
2. NOT SOLID WASTE:  Unused munitions that are disassembled, repaired, or otherwise recovered [§266.202(a)(2)].
3. NOT SOLID WASTE:  Munitions used for training, research and development, or evaluation.  If used for its intended purpose, it is not a solid waste.  The regulations cite two situations where this condition applies:
1. Military training exercises [§266.202(a)(1)(i)].
2. Weapons testing, research and development, or evaluation [§266.202(a)(1(ii)].
4. NOT SOLID WASTE:  Range clearance operations that take place on-range at active or inactive sites [§266.202(a)(1)(iii)].  SOLID WASTE:  Military munitions shipped off-range for treatment or disposal for range clearance operations.

The Federal Facilities Compliance Act (FFCA) of 1992 expanded the reach of RCRA to include federal facilities within the Executive branch of the US government.  If you are a commercial or industrial facility, you were already subject to the Resource Conservation and Recovery Act and compliance with these regulations is not an option.  The RCRA regulations require generators of hazardous waste to train their Facility Personnel who need to know the regulations in order to do their job safely and in compliance with the regulations.  Contact me to determine the type of training that is right for you.

“Baghouse dust” improperly managed, posed threat to worker safety

SAN FRANCISCO – The U.S. Environmental Protection Agency has fined the Union City, Calif.-based United States Pipe and Foundry Company (U.S. Pipe) $158,000 for improperly managing “baghouse dust,” a hazardous waste containing cadmium and lead generated from iron pipe fabrication, under the federal Resource Conservation and Recovery Act (RCRA).

EPA discovered in an August 2011 inspection that U.S. Pipe had failed to contain the dust, which was found on the ground of the facility.  The facility cleaned up the spilled dust and soil where the dust was found, and conducted subsequent sampling to ensure all contamination was removed.

“EPA is committed to ensuring hazardous waste is properly managed,” said Jared Blumenfeld, EPA’s Regional Administrator for the Pacific Southwest.  “Preventing the release of this dust is critical to protect U.S. Pipe workers and the environment.”

Following EPA’s findings, U.S. Pipe modified its operational practices to minimize the potential for future releases and improved staff training in proper dust management.

The Resource Conservation and Recovery Act authorizes EPA to oversee the generation, transportation, treatment, storage, and disposal of hazardous waste.  Under RCRA, hazardous waste must be stored in closed and labeled containers.

For more information on the Resource Conservation and Recovery Act, visit:  http://www.epa.gov/lawsregs/laws/rcra.html.

The Universal Waste regulations found at 40 CFR 273 present an option for generators of hazardous waste to manage certain of those waste by a reduced regulatory burden.  The Universal Waste regulations contain many differences between the Federal level (the subject of this article) and the states.  For that reason, it is a good idea to check with your state’s Universal Waste program to ensure compliance.

The US EPA recognizes four types of Universal Waste, most states I am familiar with accept these four as well, and may add additional types of waste of their own; they are:

• Lamps
• Mercury-Containing Devices
• Batteries
• Pesticides

As the title implies, the purpose of this article is to identify what is meant by a “pesticide” in the context of the Universal Waste regulations.  This requires an answer to two questions:

1.  How do the Universal Waste regulations define a pesticide?

40 CFR 273.9:  Pesticide means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or desiccant, other than any article that:

(a) Is a new animal drug under FFDCA section 201(w), or

(b) Is an animal drug that has been determined by regulation of the Secretary of Health and Human Services not to be a new animal drug, or

(c) Is an animal feed under FFDCA section 201(x) that bears or contains any substances described by paragraph (a) or (b) of this section.

2.  What pesticides are applicable to use the Universal Waste option?

This is more complicated and requires a close reading of §273.3.  If a pesticide meets the definition of §273.9, it must also meet all of the conditions listed below.

1. Like all Universal Waste, a pesticide as defined above, must first be a waste as described in §261 (ie. it must be something to be discarded or no longer able to perform its function).  A further explanation of when a pesticide is, or isn’t, a waste is explained later in this article.
2. Also, just like all other Universal Waste, a pesticide must be identified as a hazardous waste in §261 subparts C (characteristic) or D (listed).
3. It must be a recalled pesticide that is part of a voluntary or mandatory recall under Section 19(b) of FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act).  This includes but is not limited to those pesticides owned by the registrant responsible for conducting the recall. Or, stocks of a suspended or cancelled pesticide, out of compliance with FIFRA, that are part of a voluntary recall by the registrant.
4. Or, it may an unused pesticide products that is collected and managed as part of a waste pesticide collection program.

However, pesticides that meet the conditions of #’s 3 & 4 above are not covered by and cannot use the Universal Waste regulations if they are managed by farmers in compliance with 40 CFR 262.70.

§273.3(c) describes when a pesticide becomes a waste for the purposes of this part, and would therefore meet condition #1 above:

• A recalled pesticide becomes a waste when the generator of the recalled pesticide agrees to participate in the recall, and, when the person conducting the recall decides to discard.
• An unused pesticide becomes a waste on the day the generator decides to discard it.

§273.3(d) identifies pesticides that are not wastes, and therefore would fail the requirements of condition #1 above, as follows:

• The person conducting the recall of a recalled pesticide has not made a decision to discard it.  The recalled pesticide would remain subject to the requirements of FIFRA.
• The person conducting the recall of a recalled pesticide has decided on a management option, that under §261.2, does not cause the pesticide to be a solid waste.  The recalled pesticide would remain subject to the requirements of FIFRA.
• An unused pesticide which the generator was not decided to discard.  The unused pesticide would remain subject to the requirements of FIFRA.

If you are able to manage your pesticides as a Universal Waste instead of a hazardous waste, I suggest you research your State’s Universal Waste regulations as they pertain to pesticides.

The Universal Waste regulations are a great option for generators of hazardous waste, others include Used Oil and Satellite Accumulation Areas.  Your knowledge of these options and how to use them can save you time and money.  My training sessions address topics just like these in addition to meeting the regulatory requirements of 40 CFR 262.34(a)(4) and 40 CFR 265.16.  Contact me for a free consultation on your training needs.