After completing the hazardous waste determination as required by USEPA regulations at 40 CFR 262.11, the most fundamental responsibility of the generator of a waste is to count the hazardous waste it generates each month and determine its hazardous waste generator category. From the Federal Register publication of the final rule (81 FR, 11.28.16, 85755):
A generator must correctly count the quantity of hazardous waste that it generates in order to determine its generator category.
Despite its importance, the requirements for counting hazardous waste and determining generator category were not presented in a clear and distinct manner. That problem was corrected by the Generator Improvements Rule. The purpose of this article is to identify and explain the requirements of 40 CFR 262.13 for the counting of hazardous waste and the determination of hazardous waste generator category as revised by the Generator Improvements Rule.
Before we begin…
The regulations of §262.13 are partially affected by the reorganization of the generator regulations undertaken by the Generator Improvements Rule (read: Reorganization of the Generator Regulations). Some of the language in §262.13 was relocated from its previous location at §261.5(c)-(d), much of it is new text. You can read a side-by-side comparison of old and new regulations here: Comparison of Changes to Hazardous Waste Counting and Determination of Hazardous Waste Generator Category Made by the Generator Improvements Rule
There are two types of hazardous waste:
- Hazardous waste
- Acute hazardous waste
Hazardous waste is identified at §261.3. To briefly summarize, it is a solid waste that is not excluded by regulation that either displays a characteristic of a hazardous waste or is a listed hazardous waste. Identifying a hazardous waste is the purpose of the Hazardous Waste Determination.
An acute hazardous waste is defined at §260.10:
Acute hazardous waste means hazardous wastes that meet the listing criteria in §261.11(a)(2) and therefore are either listed in §261.31 of this chapter with the assigned hazard code of (H) or are listed in §261.33(e) of this chapter.
Read: FAQ: How does the Generator Improvements Rule define an acute hazardous waste?
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Note: As used in §262.13, the term “non-acute hazardous waste” means the same as hazardous waste as defined at §261.3. |
Introduction:
Though created by the Generator Improvements Rule, the regulations in §262.13 do not constitute a new requirement for generators; merely a clarification of existing USEPA policy and enforcement. So, this is something a hazardous waste generator should have been already doing.
Generator categories are now (thanks to the Generator Improvements Rule) defined at §262.10 as follows:
Large quantity generator is a generator who generates any of the following amounts in a calendar month:
(1) Greater than or equal to 1,000 kilograms (2200 lbs) of non-acute hazardous waste; or
(2) Greater than 1 kilogram (2.2 lbs) of acute hazardous waste listed in §261.31 or §261.33(e) of this chapter; or
(3) Greater than 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in §261.31 or §261.33(e) of this chapter.
Small quantity generator is a generator who generates the following amounts in a calendar month:
(1) Greater than 100 kilograms (220 lbs) but less than 1,000 kilograms (2200 lbs) of non-acute hazardous waste; and
(2) Less than or equal to 1 kilogram (2.2 lbs) of acute hazardous waste listed in §261.31 or §261.33(e) of this chapter; and
(3) Less than or equal to 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in §261.31 or §261.33(e) of this chapter.
And…
Very small quantity generator is a generator who generates less than or equal to the following amounts in a calendar month:
(1) 100 kilograms (220 lbs) of non-acute hazardous waste; and
(2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in §261.31 or §261.33(e) of this chapter; and
(3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in §261.31 or §261.33(e) of this chapter.
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Contact me with any questions you may have about the generation, identification, management, and disposal of hazardous waste Daniels Training Services, Inc. 815.821.1550 |
Scope and Applicability:
The requirement to count hazardous waste and determine hazardous waste generator category applies to all hazardous waste generators – even the very small quantity generator (VSQG). USEPA’s intent to include VSQGs is made clear in the opening line of the preamble to this particular rule (quoted in full in the first paragraph to this article), “…A generator must…”; that means all of them.
Also, the first line of the opening paragraph of §262.13 reads:
A generator must determine its generator category.
And finally, it is codified at §262.14(a) (also created new by the Generator Improvements Rule) which indicates a VSQG is exempt from most hazardous waste regulations but not those of §262.10 – §262.14.
Generators must determine their generator category each month for the simple reason that the amount of hazardous waste generated may change from month-to-month.
Q: If a generator must determine its generator category each month, must it make a count of the hazardous waste generated each month?
A: No. Generators are not required to follow the prescribed steps of hazardous waste counting each month (81 FR 85756).
Q: If the amount of hazardous waste generated varies month-to-month, may I choose to operate as a large quantity generator?
A: Yes. A generator may choose to operate as an LQG to simplify regulatory compliance even though its generator category can change month-to-month (84 FR 85755).
For Generators of Either Acute or Non-Acute Hazardous Waste:
Generators of either acute hazardous waste or non-acute hazardous waste must do the following:If a facility generates either solely acute hazardous waste or solely non-acute hazardous waste its requirements for counting hazardous waste and determining generator category are largely unchanged by the Generator Improvements Rule.
- Count the total amount of hazardous waste generated in the calendar month.
- Subtract from the total any amounts of waste exempt from counting as prescribed in §262.13(c) and (d). See later in this article for the wastes exempt from counting.
- Determine generator category using Table 1 to §262.13 (see below).
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For Generators of Both Acute Hazardous Waste and Non-Acute Hazardous Waste:
A facility may generate both acute hazardous waste and non-acute hazardous waste in the same calendar month. Prior to the Generator Improvements Rule these wastes were counted separately (no change by the Generator Improvements Rule) and, if different generator categories determined managed separately according to the requirements of their respective generator category (this was changed by the Generator Improvements Rule).
Generators of both acute hazardous waste and non-acute hazardous waste must do the following:
- Count separately the total amount of acute hazardous waste and the total amount of non-acute hazardous waste generated in the calendar month.
- Subtract from each total any amounts of waste exempt from counting as prescribed in §262.13(c) and (d). See later in this article for the wastes exempt from counting.
- Determine separately the resulting generator categories for the quantities of acute and non-acute hazardous waste generated using Table 1 to §262.13 (see below).
Then…
- Apply the more stringent generator category to the accumulation and management of both non-acute hazardous waste and the acute hazardous waste generated for the month.
Q: I generate 2 kg/mo of acute hazardous waste but only 1 kg/mo of non-acute hazardous waste (none of the wastes are exempt from counting). Can I manage the non-acute hazardous waste as a VSQG and the acute hazardous waste as an LQG?
A: No. The Generator Improvements Rule requires the generator to manage all hazardous waste – both acute hazardous waste and non-acute hazardous waste – according to the more stringent generator category. In this case all waste must be managed subject to the conditions for exemption for a large quantity generator at §262.17.
TABLE 1 TO 262.13-GENERATOR CATEGORIES BASED ON QUANTITY OF WASTE GENERATED IN A CALENDAR MONTH
| Quantity of acute hazardous waste generated in a calendar month | Quantity of non-acute hazardous waste generated in a calendar month | Quantity of residues from a cleanup of acute hazardous waste generated in a calendar month | Generator category |
|---|---|---|---|
| > 1 kg | Any amount | Any amount | Large quantity generator (LQG) |
| Any amount | >= 1,000 kg | Any amount | Large quantity generator (LQG) |
| Any amount | Any amount | > 100 kg | Large quantity generator (LQG) |
| <= 1 kg | > 100 kg and < 1,000 kg | <= 100 kg | Small quantity generator (SQG) |
| <= 1 kg | <= 100 kg | <=100 kg | Very small quantity generator |
Q: Normally my facility is a VSQG. Recently we had a spill resulting in the generation of 150 kg of residues from the cleanup of acute hazardous waste. Do we now have to change our generator status to large quantity generator and comply with all of 262.17 for the remainder of the month or as long as the waste remains on-site, whichever is longer?
A: No. Not if your state adopted the Episodic Generation Regulations for a VSQG from the Generator Improvements Rule. Under certain conditions it allows a generator to maintain their generator category even though they generate an amount of hazardous waste in excess of the threshold for that generator category. Note: a small quantity generator may also take advantage of the new Episodic Generation Regulations.
Wastes Exempt From Counting #1 [§262.13(c)]:
The following hazardous waste, are not counted by the generator when determining its generator category:
- The following hazardous waste are exempt from regulation:
- §261.4(c) process unit exclusion
- §261.4(d) waste determination samples
- §261.4(e) treatability study samples
- §261.4 (f) samples undergoing treatability study samples at labs
- §261.6(a)(3) the following recyclable materials:
- Reclaimed industrial ethyl alcohol
- Scrap metal that is not excluded at §261.4(a)(13)
- Fuels produced from the refining of oil-bearing hazardous waste
- Hazardous waste fuel produced from oil-bearing hazardous wastes
- §261.7(a)(1) RCRA Empty container
- 261.8 PCB wastes regulated under the Toxic Substances Control Act (TSCA)
- Hazardous waste managed immediately upon generation in one of the following as defined in §260.10:
- Elementary neutralization units
- Wastewater treatment units
- Totally enclosed treatment facilities
- Hazardous waste if recycled under the following conditions:
- No storage or accumulation prior to recycling
- Recycled only in an on-site process subject to regulation under §261.6(c)(2)
- Used oil managed per §261.6(a)(4) and 40 CFR part 279.
- Spent lead-acid batteries managed according to 40 CFR part 266, subpart G.
- Universal waste managed according to §261.9 and 40 CFR part 273
- A hazardous waste generated as the result of a lab clean-out at an eligible academic entity according to §262.213
- Hazardous waste managed as part of an episodic event in compliance with 262, subpart L.
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Wastes Exempt From Counting #2 [§262.13(d)]:
The following are hazardous waste not subject to any of the exemptions identified at 262.13(c) but are still not counted when determining generator category. Their exemption from counting is dependent on the fact that they have already been counted once towards the determination of generator category and need not be counted again.
- Hazardous waste removed from on-site accumulation so long as it was previously counted once when generated.
- Hazardous waste generated by on-site treatment of the generator’s hazardous waste so long as the hazardous waste that was treated had already been counted once when generated.
- Hazardous waste spent materials generated, reclaimed, and then reused on site so long as the spent materials had been counted once when generated.
Q: Our facility takes a spent solvent hazardous waste and runs it through an on site distiller to reclaim the solvent for further use on site. One result of the process is the generation of a listed hazardous waste (still bottoms). The solvent is then reused which results in more spent solvent, more distillation, more still bottoms, &etc. Must we count the still bottoms toward our generator category? Must we count the solvent towards our generator category every time it is spent and sent to the distillation unit?
A: No. In the case of the still bottoms, it needs to be managed as a hazardous waste – if that is the result of your hazardous waste determination – but it is exempt from counting as a hazardous waste for determination of generator category as long as the spent solvent that was treated was counted once as a hazardous waste. Also, the solvent is not counted as a newly generated hazardous waste every time it is spent and sent for reclamation as long as it was counted once the first time it became spent.
What’s Left After a Generator has Determined its Hazardous Waste Generator Category?
According to §262.13(e), it is now the responsibility of the generator to do the following:
- Meet the applicable independent requirements for hazardous waste generators at §262.10.
- Comply with the applicable provisions of the following in order to remain exempt from the storage facility permit, interim status, and operating requirements:
- §262.14 for a very small quantity generator
- §262.15 for the satellite accumulation of a hazardous waste
- §262.16 for a small quantity generator
- §262.17 for a large quantity generator
Mixing Hazardous Waste with Solid Waste:
The remainder of §262.13 addresses a generator mixing its hazardous waste with a solid waste and its affect on hazardous waste counting and generator category determination. That will have to wait for a later article.
Conclusion:
As 262.13(e) indicates, after a generator has counted its hazardous waste and determined its generator category it must comply with the applicable regulations for that category. Contact me with any question you may have about the hazardous waste determination, determining your hazardous waste generator category, or any of the responsibilities of a hazardous waste generator.
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Daniels Training Services, Inc. 815.821.1550 |