On February 2, 2015 an EHS Professional who had attended one of my Training Seminars contacted me with a question:

Dan, I attended your HazMat Employee & Hazardous Waste Training class last <<MONTH>> in <<CITY, STATE>>. I am hoping that you could help me out by advising me what to do with a 4 oz bottle of lacto phenol cotton blue stain that we just discovered hidden in a drawer in our laboratory.

According to SDS, it is approx. 80% phenol which is hazardous.
My question to you is how would you recommend handling this? I know we are allowed to keep small amounts on site. Would you safely package it up and store on site or would you go ahead and pay the cost of disposing it immediately?
Last year we went through the lab to clean out expired chemicals and did hire a company to dispose of all hazardous material but missed this bottle of stain.

I would greatly appreciate your advice.

My response on February 9, 2014:

I apologize for my delay in responding. I’ve been super busy the past few weeks.

To answer your question you have a few options, I have outlined some of them below along with some suggestions.

• I would not be in any rush to call it a waste – and therefore a hazardous waste – too quickly. As the generator you have some discretion in deciding when it is a waste (i.e. when it is discarded) as long as it does not appear to be abandoned. As such, you could continue to keep it on the lab shelf with some plans in the near future to use it.
• Is it possible to use it? If you can find some way to use it as a product in a legitimate manner, then it would not be discarded and would not be a waste. Perhaps your lab personnel could use it in some form of experiment that consumes the material leaving nothing but a RCRA Empty container which can then go in the trash.
• If it becomes a waste, as the generator you have the option to treat a waste to make it non-hazardous. This can be done if the waste is hazardous due to a characteristic (D001, D002, D003, or D004-D043) but not if it is a listed hazardous waste (F-codes, K-codes, P-codes, U-codes). It sounds like what you have is a characteristic hazardous waste (D001 for Ignitability). You could therefore, mix it with a large amount of non-ignitable waste and make it non-hazardous. Or you could solidify it with absorbants and dispose of it as a non-hazardous waste.
• If you are a CESQG and it is not a listed hazardous waste (see above) you could add it to your Used Oil and still manage it as a Used Oil.

In sum, you have a lot of options for the management of this material that does not require off-site transportation as a hazardous waste. Though of course that remains an option.

I hope this helps. Please don’t hesitate to contact me with any other questions.

Dan

EHS Professional replied:

Excellent information!  Thank you very much!

The reuse, reconditioning, and remanufacture of hazardous material packagings (both bulk and non-bulk) is addressed at 49 CFR 173.28 of the PHMSA/USDOT Hazardous Material Regulations.  In general packagings and receptacles (bulk and non-bulk) used more than once must be in good condition and comply with all of the requirements of the HMR for HazMat packaging; including closure devices and cushioning materials. Before reuse, each packaging must be inspected by the Shipper and may not be reused unless free from incompatible residue, rupture, or other damage which reduces its structural integrity.  Packagings not meeting the minimum thickness requirements prescribed in 49 CFR 173.28(b)(4)(i) may not be reused or reconditioned for reuse, though they may be acceptable for remanufacture.  §173.28 goes on to identify the specific requirements and restrictions for the reuse, reconditioning and remanufacture of non-bulk packagings for the transportation of hazardous materials.  §173.28(b)(6) however, contains an exception from this regulation for the reuse of a non-bulk packaging for the shipment of a hazardous waste.

(more…)

The Bullet:

The generator of a hazardous waste violated basic requirements of the hazardous waste regulations.  And, as a consequence, also violated the Hazardous Material Regulations of the PHMSA/USDOT.  These avoidable violations have resulted in significant criminal violations for this company and its officers.

Who:

Action Manufacturing Company in Atglen, PA.

The initial inspection was conducted by the USEPA’s Land and Chemical Division and the Pennsylvania Department of Environmental Protection (PA DEP).

The case was investigated by the EPA’s Criminal Investigation Division and the U.S. Department of Transportation Office of Inspector General. It is being prosecuted by Assistant U. S. Attorney Elizabeth Abrams.

What:

Action Manufacturing Company’s production process generates an explosive hazardous waste.  State and Federal regulations codified under the Resource Conservation and Recovery Act (RCRA) require hazardous wastes to be managed according to the applicable generator regulations while accumulated on-site and sent off-site for disposal only to permitted hazardous waste Treatment, Storage, & Disposal Facilities (TSDFs).  Instead of complying with these regulations, the company stockpiled hazardous wastes on-site for – in some cases – several years in gross violation of the generator on-site accumulation time limits.

Where:

Action Manufacturing Company is headquartered in Bristol, Bucks County, PA.

The hazardous waste in question was stored at its facility in Atglen, Chester County, PA

When:

Initial inspection was completed by the USEPA’s Land and Chemical Division and the Pennsylvania Department of Environmental Protection (PA DEP) in November 2011.

Action Manufacturing entered the guilty plea on May 21, 2014.

A sentencing hearing is scheduled for August 27, 2014.

Why:

Federal and state hazardous waste regulations require a generator of hazardous waste to comply with applicable regulations in lieu of obtaining a permit for the storage of a hazardous waste.  Indefinite, long-term storage of this type without a permit is not allowed.  Further, evidence of a knowing violation of the regulations can lead to criminal prosecution, as in this case.  Also, as is often the case, violations of the USEPA hazardous waste regulations results in violations of the PHMSA/USDOT regulations for the transportation of a hazardous material (in this case a hazardous waste).

How:

Both Federal and state regulations allow authorities of the USEPA or your state, if it has an authorized hazardous waste program, to enter the property of a hazardous waste generator at any reasonable time and go anyplace hazardous waste are or have been.

Conclusion:

I don’t pretend to know all the facts of this case.  I am relying solely on the news release of the USEPA:  Pennsylvania Company Pleads Guilty to Improper Storage of Explosive Hazardous Waste and Agrees to $1.2 Million Fine.  However, it appears to me that compliance with the regulations of the USEPA and the PA DEP would not have been that difficult and certainly are preferable over this outcome.

Don’t wait!  Contact me for a free consultation regarding your compliance with the regulations of the USEPA, your state, and the PHMSA/USDOT.

In an earlier article I explained the basic requirements of the USEPAs Federal regulations for the accumulation of hazardous waste in a Satellite Accumulation Area [40 CFR 262.34(c)].  Most states with an authorized hazardous waste program incorporate the Federal regulations for SAAs and the State of Missouri is no exception.  It has an authorized hazardous waste program and has largely incorporated by reference the Federal regulations, however, as the Missouri Code of State Regulations reads at 10 CSR 25-5.262:

This rule sets forth standards for generators of hazardous waste, incorporates 40 CFR part 262 by reference, and sets forth additional state standards.

Emphasis mine.

In this article I will explain what is necessary for a generator of hazardous waste in Missouri to manage hazardous waste in a satellite accumulation area in order to comply with the regulations of the MO Department of Natural Resources [10 CSR 25-5.262(2)(C)(3)].

First, let’s review the regulatory requirements where MO DNR and USEPA agree, they include:

• Container(s) must be of good condition and suitable for the safe storage of hazardous waste.
• Container(s) must be properly marked with either the words “Hazardous Waste” or other words that identify the contents of the container.
• Container(s) must be kept securely closed except when waste is added or removed.  Generator must manage the waste in a way that prevents or minimizes the possibility of exposure, spills, fire, loss of vapors, etc.
• Container(s) must be at or near the point of generation of the waste.
• Container(s) must be under the control of the operator.  MO DNR guidance specifies:

 SAA must be located where the process or equipment operator has a clear view of the satellite area at most times when the generating process or equipment is operating.

• SAA may not store more than one kilogram (1 Kg) of acute hazardous waste.
• No limit on the different types of hazardous waste or number of containers in an SAA.  See below for an explanation of how Missouri expands on this limit.
• The weekly inspection requirements of hazardous waste containers at Large Quantity Generators or Small Quantity Generators of hazardous waste (determine your hazardous waste generator status) do not apply in SAAs (read this article to learn about USEPA regulations for weekly inspections in SAAs).  However, it is a good idea to conduct periodic inspections of these areas.

Now let’s take a look where Missouri differs from the Federal regulations:

• Hazardous waste may not accumulate in an SAA for more than one year.  The one year time limit for accumulation in an SAA begins at the moment the first drop of hazardous waste enters the container in the SAA.  This differs greatly from the USEPA which has no limit on the amount of time a hazardous waste may accumulate in an SAA.
• Due to the above Missouri facilities have an additional marking requirement:  The date of accumulation must be marked clearly on the container.  In other words, the date the first drop of hazardous waste is added must be written on the container.
• You may accumulate more than 55 gallons of hazardous waste in an SAA provided you have no more than one 55-gallon container per wastestream in each SAA.  This differs greatly from the USEPA which allows no more than 55-gallons total volume of hazardous waste in each SAA.  Compliance with this requirement is made more difficult by the fact that you will not find any mention of it in the Missouri regulations.  In a recent conversation with the MO DNR I was told that this expansion on the Federal regulations is based on an interpretation by the MO DNR and how it chooses to enforce its regulations.  You will find a reference to this allowance in an MO DNR guidance document I have a link to at the end of this article.
• Once any single container is full (whether it is a 55-gallon container or smaller) it must be marked with the date the container became full, and marked, labeled and otherwise  managed according to the Missouri regulations for generator storage of hazardous waste.  Further, the container must be shipped off-site for final treatment, storage, or disposal or moved to the facility’s Central Accumulation Area for storage of hazardous waste within 3 calendar days of being full.  If moved to the facility’s CAA, it may be dated again and stored onsite for another 90, 180, or 270 days as applicable.
• Under no conditions may a hazardous waste (acute or non-acute) remain in an SAA for longer than one year from the first moment hazardous waste is added to the container.
• MO DNR requires that personnel who are exposed to hazardous waste in an SAA receive training to ensure they are familiar with proper management procedures, health and safety risks, and procedures in the event of an emergency.  This is another departure from the Federal regulations which have no training requirement for personnel exposed to hazardous waste in an SAA.  Also, you won’t find this requirement in the regulations or the MO DNR guidance document.  However, I was told in recent conversation with the MO DNR that they do expect you to provide this training.

Example:

A Missouri facility manages three 55-gallon and one 5-gallon container of hazardous waste in a single SAA; each container has a different kind of non-acute hazardous waste.

• The facility may continue to manage all of the hazardous waste in the SAA provided all of the applicable regulatory requirements are met.
• If any one of the containers becomes full within one year of the start of hazardous waste accumulation the container should be closed, dated, and managed according to the MO DNR regulations for hazardous waste storage.  The facility has three calendar days to ship offsite or move to its CAA.
• If any container has remained in the SAA for one year from its date of initial accumulation (1st drop!) the container must be immediately removed from the SAA to the CAA or shipped offsite to a TSD Facility.

Conclusion:

Staying on top of the Federal hazardous waste regulations of the USEPA can be a challenge.  You must also be aware of those of your state, especially where it differs from the Feds; and especially if, like Missouri, your state has gone well beyond the USEPA in its regulations, interpretations, and enforcement.

If you have any doubts about your facility’s compliance with these regulations I encourage you to contact the MO DNR for a site-specific assessment of your operations.  Also, here’s that MO DNR guidance document I mentioned earlier:  MO DNR Hazardous Waste Satellite Accumulation.

I encourage you to attend my training to brush up on the Federal regulations and gain a perspective on those of your state.

And hey!  I’ll be in Kansas City, MO on June 5th, 2014 for one solid day of training:  4 hours of Hazardous Waste Personnel (USEPA) and 4 hours of HazMat Employee (USDOT).

The RCRA regulations identify three status of hazardous waste generators determined by the amount of hazardous waste generated in a calendar month:

1. Large Quantity Generator (LQG) – Generates ≥1,000 kg of hazardous waste or >1 kg of acute hazardous waste per calendar month.
2. Small Quantity Generator (SQG) – Generates >100 kg but <1,000 kg of hazardous waste per calendar month.
3. Conditionally Exempt Small Quantity Generator (CESQG) – Generates ≤100 kg of hazardous waste and ≤1 kg of acute hazardous waste per calendar month.

For many facilities their hazardous waste generation is routine enough that they are able to determine their hazardous waste generator status and then comply with the regulations of that status year after year.  For some facilities however, it’s not so easy; their rate of hazardous waste generation may vary from  month to month, as in the following example:  During a once every two years clean out of a storage tank, a CESQG that routinely generates < 50 kg/mo of spent acid generates 2,000 kg of a hazardous waste paint sludge all at once.  The US EPA foresaw this situation and describes such facilities as Episodic Generators of Hazardous Waste.  In the example the facility has two options:

1. Comply with the regulations applicable to an LQG for the tank clean out waste for as long as it remains on-site, but continue to manage the spent acid according to the regulations of a CESQG; assuming of course that the generator is able to keep the two wastes distinct and separate (RO 12602).
2. Manage all waste it generates in that month according to the regulations applicable to an LQG.

The management of hazardous waste at one facility according to two different standards may seem confusing, and may be more trouble than its worth however, it makes sense when you consider the spirit of the rule these regulations are based on:  The US EPA believes that an LQG should be held to a higher standard than a generator of less hazardous waste due to its higher potential for a significant environmental impact in the event of a release.  A distinct waste, generated at a lower rate, and kept separate from the higher-volume, higher-risk waste can be managed according to a less strict standard.  If, however, you are not able to keep the waste separate, then all of the waste must be managed pursuant to the regulations of the higher hazardous waste generator status.

In the preamble to the regulations that created the SQG status in 1986, the US EPA addressed this issue:

The Agency has always taken the position that a generator may be subjected to different standards at different times, depending upon his generation rate in a given calendar month (51 FR 10146, 10153 March 24, 1986).

The Agency goes on to state:

Thus, any non-exempt waste (referring to hazardous waste generated above the LQG threshold) that is generated during a calendar month in which the 1,000 kg/mo cutoff is exceeded is subject to full regulation until it is removed from the generator’s site.  If such fully regulated waste is mixed or combined with waste exempt or excluded from regulation or waste that is subject to reduced regulation under today’s final rule (the rule creating the SQG status), then all of the waste is subject to full regulation.

I added text in (parenthesis) in the above quote for clarification.

In addition, the RCRA Orientation Maual (EPA530-R-98-004) reads:

If a generator’s status does in fact change, the generator is required to comply with the respective regulatory requirements for that class of generators for the waste generated in that particular month.

I read it this way, If a generator’s status changes, the generator is required to comply with the respective regulatory requirements…

• for the applicable generator status,
• only for the distinct waste generated above the generator status threshold,
• in the calendar month the waste was generated and for as long as it remains on-site.

Of course, once the waste generated above the threshold is shipped off site for treatment, storage, or disposal, the facility may resort to compliance with its routine generator status.

Be sure to check with your State before you take advantage of this Federal interpretation of the regulations.  It is quite possible that your State takes a more strict approach to this aspect of the regulations.

Compliance with the regulations is tricky, this particular article was written to answer a question I received at training a while back.  It took me far longer to answer the question than I prefer, but I now feel confident that I understand this particular aspect of the regulations and will be better able to field related questions in the future.  At my training, both On-Site or Public Seminars, I pride myself on answering the questions of my clients.  Contact me and give me a chance to answer your questions too.