Question:

I’d like to commend you for the great Q&A on your website. I have referred others to answers on HW and HM Qs over the years, as you always do a great job of explaining why something does/doesn’t apply. I saw your answer that there is no RQ for gasoline as an HM: Q&A: How much diesel fuel is a reportable quantity (RQ) of a hazardous substance?, but what about when it’s waste gasoline? As it carries a D001 waste code it seems like it would apply in cases where it exceeds the D001 threshold (100 lbs).

Answer:

Thank you for contacting me. You are correct, as a hazardous waste with the D001 waste code, gasoline could be a RQ of a hazardous substance. In that case though the RQ applies to the D001 and not to the gasoline.

Please see below for clarification:

• As documented in the above-referenced article, the definition of hazardous substance at 49 CFR 171.8 of the USDOT/PHMSA Hazardous Materials Regulations specifically excludes petroleum and related substances:

The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance in appendix A to § 172.101 of this subchapter, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).

• Gasoline and diesel as a petroleum product are excluded from consideration as a hazardous substance and therefore can’t have a reportable quantity (RQ).
• However, the list of hazardous substances at Appendix A to § 172.101—List of Hazardous Substances and Reportable Quantities includes the USEPA hazardous waste code for Ignitability (D001) with a RQ of 100 lb.
• It is quite likely that gasoline as a waste for disposal will have the Characteristic of Ignitability and the D001 waste code. It is less likely – though possible – that diesel fuel as a waste will have the Characteristic of Ignitability and the D001 waste code.
• As noted above, the reportable quantity (RQ) of D001 in a single container is 100 lb. Therefore, if a single container we

The Generator Improvements Rule (effective 05.30.17 in the regulations of the U.S. Environmental Protection Agency and states without an authorized hazardous waste program) will make many changes to the regulations applicable to a generator of hazardous waste.

Read here for more information:

• Summary of the Generator Improvements Rule
• States and Authorized Hazardous Waste Programs
• USEPA Fact Sheet About the Hazardous Waste Generator Improvements Final Rule

The purpose of this article is to identify and explain the USEPA regulations created by the Generator Improvements Rule that require additional hazard communication on various hazardous waste accumulation units throughout the cradle-to-grave management of hazardous waste. (more…)

Both the large quantity generator (LQG) and small quantity generator (SQG) of hazardous waste are required by Federal regulations of the United States Environmental Protection Agency (USEPA) to display hazard communication in the form of marks and labels on the hazardous waste accumulation units in use at their facility. This includes containers of hazardous waste in both the central accumulation area (CAA) and satellite accumulation area (SAA).

These – and other – Federal regulations changed with the effective date of the  Generator Improvements Rule on May 30, 2017. Regulations now require the generator to indicate the hazards of the contents in addition to other required marks and labels.

The purpose of this article is to identify and explain the requirements of the Generator Improvements Rule for the display of hazard communication on hazardous waste containers in a satellite accumulation area per 40 CFR 262.15. (more…)

Question (12.08.17):

Hi Daniel

We have about forty 1,000 pound super sacks that we need to ship for disposal before the end of the year.

They will ship as Environmentally hazardous Substance Solid nos UN 3077.

Waste codes D007 and D011 (due to toxic levels of chromium and silver, respectively).

Looking at the 172.101 table (the hazardous materials table at 49 CFR 172.101) we can ship using IP3 = flexible IBC must be sift-proof and water-resistant. (IP3 is a special provision code found in column 7 of the hazardous materials table).

Read: What are special provisions in the USDOT/PHMSA Hazardous Materials Regulations?

I think that is all we need. They do not need to be otherwise UN rated sack.

Am I right?

Thanks

Before I could answer he provided more information (12.08.17):

I was just told that since it is a hazardous waste that we should ship as a hazardous waste, not hazardous substance name so we are not allowed IP3 and must follow IB8.

Thoughts?

My answer (12.08.17):

I believe I have an answer to your question below.

• I do not believe the HazMat you describe can be classified as UN3077, Environmentally hazardous Substance, Solid, n.o.s. This is because special provisions code 146 in column 7 for that entry reads as follows (emphasis added):

This description may be used for a material that poses a hazard to the environment but does not meet the definition for a hazardous waste or a hazardous substance, as defined in §171.8 of this subchapter, or any hazard class, as defined in part 173 of this subchapter, if it is designated as environmentally hazardous by another Competent Authority. This provision may be used for both domestic and international shipments.

• Since this HazMat is a hazardous waste (USEPA hazardous waste codes D007 & D011) and will likely be an reportable quantity (RQ) of a hazardous substance for one or both, it can’t be shipped as UN3077, Environmentally hazardous substance, solid, n.o.s.
• Instead, I believe, it must be classified as: NA3077, Hazardous waste, solid, n.o.s., 9, PG III.
• Both UN3077 and NA3077 are subject to special provision code IB8 which indicates the need for specification packaging when shipping in an IBC (intermediate bulk container).
• UN3077 alone is subject to IP3 which is in addition to IB8 and not a replacement for it.
• Both UN3077 and NA3077 are subject to bulk packing instructions at 49 CFR 173.240. While these packing instructions allow for non-DOT specification rail cars (paragraph a), motor vehicles (paragraph b), and portable tanks and closed bulk bins (paragraph c), it requires specification packaging for IBCs (paragraph d).
• In short, this HazMat must be classified as NA3077, Hazardous waste, solid, n.o.s., 9, PG III and if shipped in an IBC must be packed in a DOT specification packaging.

I hope this helps. Please contact me with any other questions.

Conclusion:

That did it!

Yes.  USEPA allows for an exceedance of the hazardous waste generator volume threshold / limit if due to the COVID-19 public health emergency.

Pursuant to Federal USEPA regulations some generators of hazardous waste are limited to the volume of hazardous waste they may accumulate on-site at one time.  Generators that exceed this limit / threshold either lose their allowance to accumulate hazardous waste without a permit (SQG) or must comply with the regulations of the higher generator category (VSQG to SQG).  Those thresholds / limits:

• Large quantity generator (LQG) has no volume threshold or limit.
• Small quantity generator (SQG) may not exceed 6,000 kg (13,200 lb) of hazardous waste on-site at one time.
• Very small quantity generator (VSQG) may not exceed 1,000 kg (2,200 lb) of hazardous waste on-site at one time.

Unlike the on-site accumulation time limit for hazardous waste accumulated by LQGs and SQGs, USEPA regulations do not provide for an exceedance to these volume thresholds / limits.

That has changed due to USEPA’s Temporary Enforcement Discretion Policy in Light of COVID-19.  Part I.D.4 reads (emphasis added):

If a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste and take the steps identified under Part I.A, above. If these steps are met, as an exercise of enforcement discretion, the EPA will treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. In addition, as an exercise of enforcement discretion, the EPA will treat Very Small Quantity Generators and Small Quantity Generators as retaining that status, even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off of the generator’s site due to the COVID-19 pandemic.

Note1:  The reference to Part I.A in the above quotation is to the General Conditions of the enforcement discretion which pretty much says:

• Generators should make every effort to comply with their environmental compliance obligations, and;
• If compliance is not reasonably practical, generators should act responsibly to minimize the effects and duration of the non-compliance, return to compliance ASAP, and document everything.

Please refer to this article if you are interested in the first part of the above quotation that refers to the enforcement discretion available for the on-site accumulation time limits of a LQG and SQG

USEPA’s temporary policy clearly allows for an enforcement discretion if a VSQG or SQG exceeds their on-site accumulation volume limit / threshold as long as other conditions of the policy are met.

So, what’s a hazardous waste generator to do?

1. Contact your regional USEPA (if you operate in a state lacking RCRA authorization) or your state environmental agency (if your state has RCRA authorization) to inform them you will – or have – exceeded your on-site accumulation volume threshold / limit.  This notification is not required by the regulations or the enforcement discretion, but I recommend you do it anyway.  Read: RCRA State Authorization
2. Comply with all other Federal and state regulations applicable to your hazardous waste generator category to the best of your ability during the COVID-19 public health emergency.
3. Non-compliance with other regulatory requirements (e.g., weekly inspections) due to the COVID-19 public health emergency must be addressed separately.
4. Document your activities and correspondence and maintain as a record.
5. Return to compliance as soon as you are able.