hazardous waste determination

The Basis for a Hazardous Waste Determination

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 Hazardous Waste Determination

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?man with question mark
  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.

Inherently Waste-Like

40 CFR 261.2 defines a solid waste as any discarded material not excluded by regulation, variance, or non-waste determination.  A discarded material is any material which is:

  1. Abandoned,
  2. Recycled,
  3. Considered inherently waste-like as described in paragraph (d), or
  4. A military munition

What the US EPA defines as inherently waste-like is explained in detail at 40 CFR 261.2(d), the list is short and industry specific; it includes:

  1. Listed hazardous wastes which are Dioxins:  F020, F021 (unless used as an ingredient to make a product at the site of generation), F022, F023, F026, & F028.  The table of F-listed hazardous waste can be found at 40 CFR 261.31
  2.  Secondary materials fed to a halogen acid furnace that are a listed or characteristic hazardous waste, except for brominated material that meet criteria listed in 40 CFR 261.2(d)(2)(i-iii).  I won’t list those here, you can read the full regulations if you think this applies to you.

Paragraph (d) reads in part, “ The following materials are solid wastes when they are recycled in any manner”.  What if you have no intention of recycling the waste?  Is it still considered to be inherently waste-like?  The answer is yes.  If your waste meets the definition of inherently waste-like, it is considered by regulation to be a discarded material and therefore a solid waste unless it is excluded at 40 CFR 261.4(a).

A quick review of paragraph (d) should be enough to tell you if your waste is inherently waste-like.  The list is subject to change since the US EPA maintains its right to add wastes to the list if it deems it necessary.

The determination of inherently waste-like is just one step of a complete hazardous waste determination that you must make for all waste.  Proper training can help you to identify the steps you must take to maintain compliance.