Since its beginning, the Resource Conservation and Recovery Act (RCRA) has prohibited the landfill disposal of waste containing free liquids – with some narrowly defined exceptions per RCRA section 3004(c).  The U.S. Environmental Protection Agency (USEPA) codified this prohibition as follows:

• 40 CFR 258.28 for municipal solid waste landfills (MSWLFs).
• 40 CFR 264.314 for permitted hazardous waste landfills.
• 40 CFR 265.314 for interim status hazardous waste landfills.

So, a ban on free liquids in landfills is nothing new.  What is new:  under the Generator Improvements Rule, the prohibition now also applies to hazardous waste generators.  The purpose of this article is to explain the prohibition on landfill disposal of free liquids in hazardous waste landfills now applicable to hazardous waste generators.

Before we begin…

• These regulations were not affected by the reorganization of regulations undertaken by the Generator Improvements Rule.  Regulatory language regarding the prohibition of liquids in landfills was duplicated from §258.28, and at §264.314 and §265.314.
• Reference is made to the regulations applicable to a permitted treatment, storage, and disposal facility (TSDF) in part 264 and an interim status TSDF in part 265.  This distinction is not important to understanding these regulations but if you’re curious you can read this article:  What’s the Difference Between Parts 264 and 265 of the CFR?

Scope and Applicability:

• As noted earlier, the prohibition on disposal of free liquids in any landfill existed prior to these new regulations and its applicability to operators of hazardous waste landfills has not changed.  The change to the regulations now makes all hazardous waste generators (large quantity generator, small quantity generator, and very small quantity generator) subject to the prohibition.
• The prohibition does not apply equally to all hazardous waste generators.  While all three are prohibited from the placement of a hazardous waste containing free liquids in a landfill, the SQG and LQG must also meet additional requirements of §264.314(b) and §265.314(c).
  

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What is a liquid?

If you look too closely at the regulations – as I do – you may notice what seems to be a conflict in the use of the terms: “free liquids”, “liquid hazardous waste”, and “free-standing liquid”.  Actually, it isn’t a conflict at all.

• Free liquids is easy.  It’s defined at §260.10:

Free liquids means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure.

• The applicable regulations (§264.314(b) or §265.314(c)) provide one method to demonstrate the absence or presence of a free liquid in a hazardous waste:  Method 9095B (Paint Filter Liquids Test or simply: PFT) as described in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods” EPA Publication SW-846, as incorporated by reference in §260.11.  There is another, more stringent, procedure for determination of free liquids used by USEPA (Pressure Filtration Technique specified in Method 1311) but it is not referenced by these regulations, so don’t use it.
• A liquid hazardous waste is not defined but it is a hazardous waste entirely, or almost entirely, in a liquid phase.  As noted above, the Paint Filter Test (PFT) is used to identify a liquid hazardous waste.
• Free-standing liquid is not defined but is explained in the following USEPA document.

The March 22 preamble described free-standing liquids as those that form distinct pools or layers above or below the waste in a container. The preamble further states that where it is difficult to determine whether a layer is a free-standing liquid, the paint filter test can be used.  Where there are no distinct layers or pools of liquid at the surface or within the waste there are no free-standing liquids. Free-standing  liquids are a subset of free liquids. Thus, the waste might contain free liquids (in accordance with the Paint Filter Liquids Test) but might not be classified as containing free-standing liquid. On the other hand, all free-standing liquids are free liquids. (RO 12443)

Even USEPA thought the use of these similar-sounding terms created an inconsistency in its regulations, but they got over it:

In the December 24, 1986, proposal, EPA stated that it saw an inconsistency between these two requirements-on the one hand, containerized wastes containing free liquids could be placed in a landfill, if the liquids were removed (e.g., decanted, § 264.314(d)), and on the other hand, containerized wastes containing free liquids (as defined by the Paint Filter Test) were prohibited from placement in a landfill (§ 264.314(c)). EPA has reached the conclusion that they are not inconsistent. Instead, the regulations spell out two different requirements: (1) That landfilled wastes meet the PFT, and (2) that free-standing liquids in containerized wastes be decanted or otherwise eliminated before land disposal. Containerized wastes must meet both requirements. (November 18, 1992 57 Federal Register 54452)

That’s a lot to unpack just to come back to the original point: free liquids of any kind – with a few specified exceptions – are prohibited from landfill disposal.

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What are bulk or non-containerized liquids?

Another term used by – but not clearly explained in – the regulations is “bulk or non-containerized liquid hazardous waste”.  Similar to the free liquid “conflict” I related above, it really isn’t that big a deal (except to people like me).  By contrasting this term with its counterpart in the regulations: “containers holding free liquids” it becomes easy to understand.  It seems clear that bulk or non-containerized liquids are liquids that are not in containers as that term is defined by USEPA, i.e., any portable device.

What is the ban?

According to the regulations for a VSQG at §262.14(b) and for LQGs and SQGs at §262.35, the following hazardous wastes are prohibited from landfill disposal even if sorbents have been added to the waste:

• Bulk or non-containerized liquid hazardous waste.  i.e., a liquid hazardous waste that is not in a container.
• Hazardous waste containing free liquids.  i.e., any other hazardous waste (containerized or non-containerized) that contains free liquids.

Q:  Does the phrase, “even if sorbents have been added to the waste” restrict the use of sorbents as treatment to remove free liquids from a hazardous waste prior to landfill disposal?

A:  No.  If sorbents have been used but free liquids are still present, then the waste is prohibited from disposal in all landfills.  However, if there are no free liquids after the use of sorbents, then the waste may be disposed in either a MSWLF or hazardous waste landfill.

So that’s it – if you are a VSQG:  no landfill disposal of a liquid hazardous waste or a container of hazardous waste that includes free liquid.  A VSQG has no restrictions on how the free liquid is removed from a container or the type of sorbent that can or can’t be used.  The regulations for a SQG or LQG, however, also read:  “Prior to disposal in a hazardous waste landfill, liquids must meet additional requirements as specified in §264.314 and §265.315.”  That brings us to…

Special Requirements for bulk and containerized liquids (§264.314 and §265.315):

The regulations begin (§264.314(a) /§265.314(a)) by re-stating the same prohibition on disposal of liquids in landfills that we saw above, this time applicable to a permitted or interim status landfill and not to the hazardous waste generator.  Remember, this prohibition is nothing new for the landfill.

Then §264.314(b) / §265.314(c) identify the Paint Filter Liquids Test (PFT) as the sole means to determine the absence or presence of free liquids.  The specifics of this test were identified earlier in this article.

Here’s where it gets interesting.  Regulations at §264.314(c) / §265.314(b) state containers holding free liquids must not be placed in a hazardous waste landfill except under one of the following conditions:

• All free-standing liquid has been removed by decanting, or other methods.
• All free-standing liquid has been mixed with sorbent or solidified so that no free-standing liquid is observed.
• All free-standing liquid has been otherwise eliminated.

Or…

Free liquids may remain for landfill disposal in any one of the following three conditions.

• The container is very small, e.g., an ampule.
• The container is designed to hold free liquids for use other than storage, e.g., a battery or capacitor.
• The container is a lab pack as defined in §264.316 / §265.316 and is disposed of in accordance with §264.316 / §265.316.

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Sorbents used to treat free liquids must be nonbiodegradable:

Regulations at §264.314(d) / §265.314(e) mandate that sorbents used to treat free liquids for landfill disposal must be nonbiodegradable.  Nonbiodegradable sorbents are:

• Listed in §264.314(d)(1) / §265.314(e)(1)
• Pass one of the tests identified in §264.314(d)(2) / §265.314(e)(2)
• Determined by USEPA to be nonbiodegradable through the Part 260 petition process.

Q:  Does that mean that nonbiodegradable sorbents must be used to remove free liquids from all wastes?

A:  No.  This rule does not in any way prohibit or restrict the use of sorbents, organic or otherwise, to address wastes or products being sent to a non-hazardous waste landfill (the ban on nonbiodegradable sorbents applies solely to hazardous waste landfills).  Nor does this rule affect the use of sorbents that are not landfilled (e.g., they are burned or incinerated). (RO11798)  Also, a VSQG is not subject to the regulations restricting sorbents solely to nonbiodegradable.

What about non-hazardous waste?

§264.314(e) and §265.314(f) prohibit the disposal of any liquid non-hazardous waste to a hazardous waste landfill unless the owner or operator is able to demonstrate both of the following:

• It is the only reasonably available alternative.
• It will not present a risk of contamination of any “underground source of drinking water” as defined at §270.2.

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Conclusion:

While not making a substantial change to the impact of the regulations: most liquids were already banned from landfill disposal.  Close reading of these new hazardous waste generator regulations do reveal some useful options for waste management, e.g., use a nonbiodegradable sorbent to remove free-standing liquid from a hazardous waste container and landfill disposal is OK.  Another important takeaway from this new regulation is the USEPA’s emphasis on the responsibilities of the hazardous waste generator to comply instead of just the landfill.  Make certain you are in compliance with all of the USEPA regulations for the cradle-to-grave management of your hazardous waste.