Sumter Coatings, Inc. (SCI) in Sumter, SC must pay a $55,000 civil penalty as part of a settlement with the US Environmental Protection Agency for violations of the Resource Conservation and Recovery Act (RCRA) regulations discovered at its facility during a joint US EPA & SC Department of Health and Environment inspection (press release).  Alleged violations of the hazardous waste regulations include:

• Improper management of hazardous waste containers on site;
• Failure to provide a sufficient base beneath containers which held hazardous waste;
• Failure to make a hazardous waste determination;
• Failure to inspect all areas where hazardous waste containers are stored weekly;
• Failure to develop personnel training program to ensure compliance with hazardous waste regulations;
• Failure to update information contained in the contingency plan, along with failing to make arrangements with local police and hospital authorities regarding the contingency plan and submitting copies of the contingency plan to first responders.

It is sadly ironic that yet another company is developing a training program under the shadow of an enforcement action when proactive implementation of RCRA training could have precluded the violations from occurring in the first place.  Hazardous waste training is required for all personnel of a large quantity generator who handle, manage, generate, work around, treat, recycle, etc. hazardous waste and is highly recommended for similar employees of small quantity generators.  In addition to being a regulatory requirement, it is also a good way for you and your personnel to maintain compliance with the full array of hazardous waste regulations applicable to your operations.

I can provide RCRA Training and DOT HazMat Employee training in a variety of formats and locations; either at my open enrollment events held nationwide and year round, or right at your facility with on-site training tailored to your site-specific needs.  Please review my training schedule to find a date and location convenient to you, or contact me for a free training consultation.

A company I am familiar with is a Large Quantity Generator (LQG) of hazardous waste, largely due to the generation of what it has determined to be U-listed hazardous waste.  The point of generation for the waste is an air pollution control device (dust collector) that services a process where several raw materials – some U-listed – are mixed.  It is my opinion that the waste determination in this case is incorrect in that a U-code (and a P-code for that matter) does not apply in this case.  I shared this opinion with company representatives and was met with skepticism.  Let’s review this particular aspect of the P- and U-codes and see what you think.

First, a little background:

P- and U-wastes are identified at 40 CFR 261.33 and along with F- and K-wastes make up the four kinds of listed hazardous wastes.  P- and U- wastes are discarded commercial chemical products, off-specification species, container reisdues, and spill residues thereof.  EPA further described them at the publication of the Final Rule (45 FR 33115):

“EPA intended to encompass those chemical products which possessed toxic or other hazardous properties and which, for various reasons, are sometimes thrown away in pure or undiluted form.  The reasons for discarding these materials might be that the materials did not meet the required specifications, that inventories were being reduced, or that the product line had changed.  The regulation was intended to designate chemicals themselves as hazardous wastes, if discarded, not to list all wastes which might contain these chemical constituents.  In drawing up these lists, the agency drew heavily on previous work by EPA and other organizations identifying substances of particular concern [e.g. ,the Department of Transportation].”  Emphasis mine.

The key to proper determination of a P- or U-listed hazardous waste is the identification of a Commercial Chemical Product (CCP), the regulations include several references to CCP’s, including:

1. Virgin or unused materials whose name appears on the P- or U-list.
2. Manufacturing chemical intermediates whose name appears on the P-or U-list.
3. Off-specification species of listed virgin or chemical intermediates.
4. Container residues of listed materials that are not “RCRA Empty” per 40 CFR 261.7.
5. Residue and spill clean-up of listed materials.

A comment included with 40 CFR 261.33(d) clarifies this further:

“Comment: The phrase “commercial chemical product or manufacturing chemical intermediate having the generic name listed in .  .  .” refers to a chemical substance which is manufactured or formulated for commercial or manufacturing use which consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient. It does not refer to a material, such as a manufacturing process waste, that contains any of the substances listed in paragraph (e) or (f). Where a manufacturing process waste is deemed to be a hazardous waste because it contains a substance listed in paragraph (e) or (f), such waste will be listed in either §261.31 or §261.32 or will be identified as a hazardous waste by the characteristics set forth in subpart C of this part.”  Once again, emphasis mine.

Once again, the EPA makes clear that both P- and U-codes are meant to be applied to virgin material or a manufacturing chemical intermediate which has not yet been processed or reacted.  P- and U-codes are specifically not to be used for manufacturing process waste.  OK, what is a manufacturing process waste?

Quite simply, a manufacturing process waste is any waste generated once the CCP or manufacturing chemical intermediate has left the “Material Handling Stage” and entered the “Manufacturing Process”.  If the point of generation of the waste (ie. the moment it is or is decided to be discarded) is within the manufacturing process it is a manufacturing process waste.  A manufacturing process waste cannot be a CCP or manufacturing chemical intermediate.  Therefore it cannot be a P- or U-listed hazardous waste.

Please note however that if the P- and U-codes don’t apply, the waste may still be hazardous as a F- or K-listed hazardous waste.  Or, it may be hazardous for one of the four characteristics:  ignitability, corrosivity, reactivity, or toxicity.  It could also be a combination of several of the above.

My example company should remove the U-codes from this waste and, assuming no other listed or characteristic hazards, reclassify it as  a non-hazardous waste.  This will likely change its hazardous waste generator status from LQG to Small Quantity Generator (SQG).

Some mistakes a company makes in its interpretation of the hazardous waste regulations can cost money in fines and violations.  Others, like this one, result in unnecessary waste disposal costs and adherence to overly restrictive regulations (ie. LQG instead of SQG).  Both of these kinds of mistakes can be avoided by attending one of my open enrollment training sessions.  At my training I cover the EPA regulations for hazardous waste personnel in the 1st half of the day (4 hours) and the DOT regulations for the transportation of hazardous materials in the 2nd half (4 hours).  One day is all it takes to get you back in compliance and avoiding costly mistakes like this.

(Boston, Mass. – Feb. 17, 2012) – A Rhode Island company that conducts printing, coating and finishing of specialty fabrics has been ordered by EPA to come into compliance with federal hazardous waste management regulations.

Its violations include a failure to:

• Complete a hazardous waste determination for the waste it generates.
• Separate incompatible hazardous wastes.
• Provide adequate RCRA Training for its employees.
• Maintain a hazardous waste contingency plan.
• Properly manage and label its universal waste.

Usually I would harp on the failure to provide adequate RCRA Training since this sort of training is just what I do, actually it’s only part of what I do, but read on.  However, I’m going to conjecture that violations of the EPA regulations will inevitably result in violations of the Department of Transportation (DOT) hazardous material transportation regulations and possibly cause a hazardous materials incident; here’s how.

I’ll assume that as a printer, the Rhode Island company uses flammable liquids as solvents, thinners, cleaners, in its inks, etc.  It is quite possible that the hazardous waste determination failure was for materials such as these.  If so, what should be an ignitable hazardous waste with the characteristic waste code of D001, might be identified as a non-hazardous material.  This kind of mistake will then lead to the other hazardous waste violations noted in the press release.  But what about when the hazardous waste is shipped off-site for disposal or treatment, what then?

I’ll assume that this company is a Large Quantity Generator (LQG) of hazardous waste and therefore must use a Uniform Hazardous Waste Manifest for its off-site shipments of hazardous waste.  The use and proper completion of the manifest is a requirement of both the EPA and the DOT.  Therefore, an incomplete or missing hazardous waste determination may result in the improper completion of the manifest.  It may also result in the incorrect use of the remaining three hazard communication methods required by DOT for shipments of hazardous waste.  Along with the manifest as a shipping paper, they are:

1. Placards
2. Labels
3. Markings

Clearly, a violation of the EPA regulations to conduct a hazardous waste determination (40 CFR 262.11) can result in a violation of the DOT regulations when shipping hazardous waste.  And not just a violation of the regulations.  According to the DOT ~80% of hazardous material incidents in transportation are due to human error; another ~15% are due to package failure.  Errors may result not only in violations and fines, but serious personal injury or damage to property.

The solution?  One word:  Training.

I provide the training that addresses all of these issues and more; conducted either as open enrollment training held nationwide and year-round or as on-site training tailored to your site specific needs.  At my training you will learn the regulations of the EPA for facility personnel found at 40 CFR 265.16 and those of the DOT for HazMat Employees found at 49 CFR 172, Subpart H.

Contact me to arrange for training to bring you back into compliance and avoid these costly and dangerous violations.

If you offer for transportation a hazardous material (HazMat) on a shipping paper such as a bill of lading or a hazardous waste on the Uniform Hazardous Waste Manifest (required for both large and small quantity generators of hazardous waste) you must provide an emergency response telephone number for use in the event of an emergency.  I have found many shippers to be unaware of their responsibility regarding this matter as they rely on the carrier and/or designated facility to provide the information required by 49 CFR 172.604.

This article was updated November 01, 2019 to reflect changes made to the regulations since its first publication on March 27, 2012.

The purpose of the emergency response telephone number is that it be a source of helpful information for emergency responders in the event of a HazMat Incident, therefore the number must be:

• Monitored at all times the hazardous material is in transportation until it reaches its designated facility and is removed from transportation.

And…

• The number of a person who is knowledgeable of the HazMat being shipped and has comprehensive emergency response information and incident mitigation information for that material.

Or…

• Has immediate access to a person who has such knowledge and information.  Telephone numbers that require a call back such as an answering service, beeper, or answering machine will not suffice (LOI 01-0176).

This knowledgeable person monitoring the telephone 24/7 (if necessary) is known as the Emergency Response Information Provider or the ERI Provider.

It is important that the emergency response telephone number is clearly visible in the event of an emergency, therefore the number must be written on the shipping paper:

• Immediately following the description of the hazardous material (this would be Section 9b of the Uniform Hazardous Waste Manifest).
• Entered once on the shipping paper in a “prominent, readily identifiable, and clearly visible manner…”  This can be done by using a larger or differently colored font, highlighting, or otherwise setting the number apart.  It must also be indicated on the shipping paper that the number is for emergency response information (e.g., “EMERGENCY CONTACT ###”).  This option can only be used if the number applies to each hazardous material on the shipping paper.  Section 3 of the Uniform Hazardous Waste Manifest may be used to fulfill this requirement.

Unfortunately some shippers and carriers were using the phone numbers of ERI Providers that they had not registered with to provide such service and in an emergency first responders were not able to obtain the necessary information from the ERI Provider.  For this reason, effective October 1, 2010, some form of identification of the person who has registered with the ERI Provider must be included on the shipping paper.  Note that the name of the ERI Provider is not required to appear on the shipping paper, merely their phone number (LOI 11-0152, LOI 10-0262).  However the name of the person that has contracted or registered with the ERI Provider to perform this service must be identified on the shipping paper.  Identification can be by name, contract number, or other unique identifier of the ERI Provider for the registrant and it must be near the emergency response telephone number unless it appears elsewhere on the shipping paper in a prominent, readily identifiable, and clearly visible manner.

So, if the person offering the hazardous material for shipment is also the ERI Provider, their name or some other acceptable means of identification must appear prominently and clearly on the shipping paper.  For the Uniform Hazardous Waste Manifest this is accomplished by proper completion of Section 5.  If a 3rd party is contracted to be the ERI Provider then some identification linking them to the registrant (name, contract number or other unique identified of the ERI Provider) must be clearly visible on the shipping paper (LOI 10-0146).  This information could be recorded in Section 14 of the Uniform Hazardous Waste Manifest.

If using a 3rd party, it is the responsibility of the person registered with the ERI Provider to ensure they have the current information on the material before it is offered for shipment.  This is especially important for hazardous waste shipments as the wastes may be different for each pickup.

49 CFR 172.604(b) can be difficult to read and understand (It was much more challenging for me than I thought it would be) but the intent is clear:  some information linking the ERI Provider to the person offering the hazardous material for shipment must be clearly visible on the shipping paper for emergency responders to find.  As of June 2011, the Agency was aware of the confusing text of this regulation and will be taking steps to clarify it (11-0008).

For telephone numbers outside the US, the international access code or the “+” sign, country code, and city code as appropriate must be included.

If preparing shipping papers for the continued transportation of a hazardous material, it is the responsibility of the subsequent offeror to ensure if the original or previous emergency response telephone number is authorized for that shipment.  In such a situation, the subsequent offeror may choose to use their own ERI Provider (11-0005).

The requirement to include an emergency response telephone number do not apply to:

1. Limited Quantities offered for transportation pursuant to 49 CFR 173.150-156 & 173.306.
2. Transportation vehicles or freight containers with lading that has been fumigated and displays the FUMIGANT marking, as long as no other hazardous materials are present.
3. Materials properly described under the following shipping names:

• Battery powered equipment.
• Battery powered vehicle.
• Carbon dioxide, solid.
• Castor bean, castor flake, castor meal, or castor pomace.
• Consumer commodity.
• Dry ice.
• Engines, internal combustion.
• Fish meal, stabilized or fish scrap, stabilized.
• Refrigerating machine.
• Vehicle, flammable gas powered.
• Vehicle, flammable liquid powered.
• Wheelchair, electric.

Prior to your next shipment, ensure that you are in compliance with these important regulations.  Significant penalties will be assessed if the emergency response telephone number for a shipment of your hazardous waste or hazardous material is discovered to be incorrect or incomplete during a hazardous material incident or emergency.  You must also ensure proper training of your HazMat Employees and the employees of a Large Quantity Generator of hazardous waste who handle the waste, including preparing it for shipment or signing the Uniform Hazardous Waste Manifest.  Please contact me to schedule on-site training.

Both Large and Small Quantity Generators of hazardous waste (LQG & SQG respectively) are required to conduct weekly inspections of their hazardous waste accumulation areas; typically referred to as Central Accumulation Areas (CAA’s) or 90 (for LQG’s) or 180 (for SQG’s) day accumulation areas.  I was recently at an LQG and was told by the EHS Coordinator that the weekly inspection took her almost 5 hours to complete.  The reason?  The inspection included more than 50 Satellite Accumulation Areas (SAA’s) distributed throughout the sprawling facility.  My observation that weekly inspections are not required for SAA’s caught her by surprise.  “Are you sure?” she asked.

Yes I am.

The Federal regulations for managing hazardous waste in an SAA can be found at 40 CFR 262.34(c).  The baseline requirements are known to most:

• No more than 55 gallons of hazardous waste or 1 quart of acute hazardous waste in a single SAA.
• In a container at or near the point of generation where the waste initially accumulates.
• Under the control of the operator of the process generating the waste.

While waste accumulates in the SAA, the generator must comply with other routine container requirements:

• 40 CFR 265.171:  Containers in good condition.
• 40 CFR 265.172:  Container compatible with waste.
• 40 CFR 265.173(a):  Container kept closed except when adding or removing waste.
• Mark container with the words “Hazardous Waste” or other words that describe the contents (check with your State on this point specifically since some require additional information to be included).

While the waste is maintained in the SAA in compliance with the above, it is not subject to the requirements of 40 CFR 262.34(a) 0r (d); these are the regulations that refer to the weekly inspection requirements of  40 CFR 265.174.  Therefore, proper maintenance of hazardous waste in an SAA precludes the requirement for weekly inspections.

Additional requirements kick-in when the SAA volume thresholds of 55 gallons for hazardous waste or 1 quart for acute hazardous waste are reached; at that point the generator must…

• Date the container.
• Move it to the CAA within 3 calendar days.  Note:  not 72 hours or 3 business days.
• Once moved to the CAA, the generator may re-date the container and then begin the 90 or 180 day accumulation time period.
• Once moved to the CAA, the container becomes subject to all the standard hazardous waste generator requirements of 40 CFR 262.34(a).

Weekly inspections of waste containers (both hazardous waste and acute hazardous waste) are an option, not a requirement.  Decide for yourself if the benefit from inspections is worth your time and effort.  For more information about SAA’s, review this US EPA FAQ’s on the subject.

I pride myself in providing a training service that not only complies with the regulations (training is required for LQG’s at 40 CFR 265.16) but also gives you information you can use (see above) to make your job of environmental compliance easier.  Please review my schedule of open enrollment training events or contact me to schedule on-site training.