Universal Waste

Bayer CropScience LP to Pay $13,900 Penalty for Distribution of Misbranded Pesticides in Missouri

Contact Information: Ben Washburn, 913-551-7364, washburn.ben@epa.gov

(Kansas City, Kan., Oct. 1, 2012) – Bayer CropScience LP has agreed to pay a $13,900 civil penalty to the United States to settle a series of environmental violations related to the distribution of mis-branded pesticides through its facility in Kansas City, Mo.

According to an administrative consent agreement and final order filed by EPA Region 7 in Kansas City, Kan., an inspection of Bayer’s Kansas City facility in November 2011 found that on November 28, 2011, Bayer CropScience shipped a quantity of the pesticide Ethosumesate, without a product label, an EPA registration number, or an EPA producing establishment number.

In December 2011, EPA Region 7 received two Notices of Arrival from Bayer for the importation of two separate shipments due that month of quantities of unregistered Methomyl insecticide for the purpose of producing the product into the registered product Larvin Technical. The label provided by Bayer for the two shipments of the unregistered pesticide contained a false or misleading statement in its “Directions for Use” section.

The labeling deficiencies related to the two pesticides were in violation of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), according to the settlement.

The sale or distribution of misbranded or mislabeled pesticides can pose serious risks to human health, plant and animal life, and the environment. Without proper labeling or safety instructions on packaging, users can unintentionally misapply pesticides and may not have adequate information to address needs for first aid in the event of emergency.

As a result of EPA’s enforcement action, Bayer CropScience LP was required to relabel all of the shipments in question. The company has also instituted changes in its practices to prevent similar violations.

Read this article to learn if your pesticide could be managed as a Universal Waste at a greatly reduced regulatory burden.  Or contact me to discuss your obligation to train your HazMat Employees and Hazardous Waste Personnel.

Oil-Based Finishes as Universal Waste in Pennsylvania

The Universal Waste regulations of the US EPA at 40 CFR 273 provide an option for generators to manage what would be a hazardous waste according to a reduced regulatory burden.  Relaxed regulatory requirements for Universal Waste include, but are not limited to:

  1. One year on-site accumulation time limit.
  2. Universal Waste doesn’t count towards your Hazardous Waste generator status.
  3. Uniform Hazardous Waste manifest not required for off-site shipments.
  4. Reduced training requirements for facility personnel.
  5. No inspection requirements.

The US Environmental Protection Agency currently identifies four (4) types of Universal Waste:

  1. Lamps.
  2. Batteries.
  3. Mercury-Containing Devices.
  4. Pesticides.

Read more about the Federal Universal Waste regulations.

States with authorized hazardous waste programs under RCRA are allowed to expand on this Federal list of Universal Waste, and many have.

The State of Pennsylvania, at Chapter 266b of its code, has added the following two wastes in addition to its adoption of the four Federal Universal Wastes:

  1. Oil-Based Finishes.
  2. Photographic Solutions.

The State code defines an Oil-Based Finish as:

Any paint or other finish that may exhibit, or is known to exhibit, a hazardous waste characteristic as specified in 40 CFR Part 261, Subpart C (relating to a characteristics of hazardous waste), or which contains a listed hazardous waste as specified in 40 CFR Part 261, Subpart D (relating to lists of hazardous wastes), and is in original packaging, or otherwise appropriately contained and clearly labeled.  Examples of oil-based finishes include, but are not limited to, oil-based paints, lacquers, stains and aerosol paint cans.

In other words, any paint, in any form (aerosols!), if it first meets the definition of a hazardous waste (characteristic or listed) can be managed as a Universal Waste in Pennsylvania.  It is, however, limited to paints and finishes, it does not include clean-up solvents or other paint-related waste.

Photographic Solutions are defined as “silver-bearing waste streams resulting from photographic processing solutions or rinse water.”

The identification of Oil-Based Finishes and Photographic Solutions as a Universal Waste is specific to Pennsylvania.  If these two Universal Wastes are shipped out of state for recycling, the Universal Waste regulations of the destination state must be considered and it is likely that your Oil-Based Finish or Photographic Solution will then have to be managed as a Hazardous Waste.

State-specific regulations such as these are best addressed during On-Site Training.  For On-Site Training I will work with you to create a presentation specific to your operations and only the regulations that your employees need to know.  Train all of your HazMat Employees and Facility Personnel in one day (or more if necessary).  Contact me for a free consultation.

 

What is a Universal Waste Pesticide?

The Universal Waste regulations found at 40 CFR 273 present an option for generators of hazardous waste to manage certain of those waste by a reduced regulatory burden.  The Universal Waste regulations contain many differences between the Federal level (the subject of this article) and the states.  For that reason, it is a good idea to check with your state’s Universal Waste program to ensure compliance.

The US EPA recognizes four types of Universal Waste, most states I am familiar with accept these four as well, and may add additional types of waste of their own; they are:

  • Lamps
  • Mercury-Containing Devices
  • Batteries
  • Pesticides

As the title implies, the purpose of this article is to identify what is meant by a “pesticide” in the context of the Universal Waste regulations.  This requires an answer to two questions:

1.  How do the Universal Waste regulations define a pesticide?

40 CFR 273.9:  Pesticide means any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or desiccant, other than any article that:

(a) Is a new animal drug under FFDCA section 201(w), or

(b) Is an animal drug that has been determined by regulation of the Secretary of Health and Human Services not to be a new animal drug, or

(c) Is an animal feed under FFDCA section 201(x) that bears or contains any substances described by paragraph (a) or (b) of this section.

2.  What pesticides are applicable to use the Universal Waste option?

This is more complicated and requires a close reading of §273.3.  If a pesticide meets the definition of §273.9, it must also meet all of the conditions listed below.

  1. Like all Universal Waste, a pesticide as defined above, must first be a waste as described in §261 (ie. it must be something to be discarded or no longer able to perform its function).  A further explanation of when a pesticide is, or isn’t, a waste is explained later in this article.
  2. Also, just like all other Universal Waste, a pesticide must be identified as a hazardous waste in §261 subparts C (characteristic) or D (listed).
  3. It must be a recalled pesticide that is part of a voluntary or mandatory recall under Section 19(b) of FIFRA (Federal Insecticide, Fungicide, and Rodenticide Act).  This includes but is not limited to those pesticides owned by the registrant responsible for conducting the recall. Or, stocks of a suspended or cancelled pesticide, out of compliance with FIFRA, that are part of a voluntary recall by the registrant.
  4. Or, it may an unused pesticide products that is collected and managed as part of a waste pesticide collection program.

However, pesticides that meet the conditions of #’s 3 & 4 above are not covered by and cannot use the Universal Waste regulations if they are managed by farmers in compliance with 40 CFR 262.70.

§273.3(c) describes when a pesticide becomes a waste for the purposes of this part, and would therefore meet condition #1 above:

  • A recalled pesticide becomes a waste when the generator of the recalled pesticide agrees to participate in the recall, and, when the person conducting the recall decides to discard.
  • An unused pesticide becomes a waste on the day the generator decides to discard it.

§273.3(d) identifies pesticides that are not wastes, and therefore would fail the requirements of condition #1 above, as follows:

  • The person conducting the recall of a recalled pesticide has not made a decision to discard it.  The recalled pesticide would remain subject to the requirements of FIFRA.
  • The person conducting the recall of a recalled pesticide has decided on a management option, that under §261.2, does not cause the pesticide to be a solid waste.  The recalled pesticide would remain subject to the requirements of FIFRA.
  • An unused pesticide which the generator was not decided to discard.  The unused pesticide would remain subject to the requirements of FIFRA.

If you are able to manage your pesticides as a Universal Waste instead of a hazardous waste, I suggest you research your State’s Universal Waste regulations as they pertain to pesticides.

The Universal Waste regulations are a great option for generators of hazardous waste, others include Used Oil and Satellite Accumulation Areas.  Your knowledge of these options and how to use them can save you time and money.  My training sessions address topics just like these in addition to meeting the regulatory requirements of 40 CFR 262.34(a)(4) and 40 CFR 265.16.  Contact me for a free consultation on your training needs.

Training Requirements for Handlers of Universal Waste

You may already be aware of the requirement for large quantity generators of hazardous waste to train their facility personnel annually.  And you may be aware of the responsibility of small quantity generators of hazardous waste to ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures [40 CFR 262.34(d)(5)(iii)].  You may not know that if you generate a universal waste, you have an additional responsibility to train/inform your employees depending on your handler status.

Universal wastes are hazardous wastes that have the option to be managed under the less restrictive universal waste regulations of 40 CFR 273.  Federal universal wastes include those listed below.  Check with your state to determine if they have added any state-specific universal wastes to this list.

  • Batteries
  • Mercury-containing devices
  • Lamps
  • Recalled or canceled pesticides

There are two levels of universal waste handler status determined by the amount of universal waste accumulated at any one time in the calendar year, they are:

  1. Small Quantity Handler accumulates <5,000 kg of universal waste.
  2. Large Quantity Handler accumulates ≥5,000 kg of universal waste.

Note that your universal waste handler status is distinct and separate from your hazardous waste generator status.  Also, the employee training requirements for universal waste are separate and distinct from those for hazardous waste.

Pursuant to 40 CFR 273.16 a small quantity handler of universal waste must inform all employees who handle or have responsibility for managing universal waste. The information must describe proper handling and emergency procedures appropriate to the type(s) of universal waste handled at the facility.  Though entitled”Employee Training” the regulation only requires you to “inform” applicable employees, this could be done through instructions, signs, etc.  You may not, however, assume they have the necessary knowledge due to experience since the regulations requires you to actively “inform” them of what they need to know.

Pursuant to 40 CFR 273.36 a large quantity handler of universal waste must ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures, relative to their responsibilities during normal facility operations and emergencies.  Note the – deliberate – similarity between the training requirements for a large quantity handler of universal waste and a small quantity generator of hazardous waste.  They both must ensure their employees are thoroughly familiar with their job duties and know what to do in an emergency, but they have no direction on how this is to be done or are required to document the process or maintain records.  How you comply with this regulation is up to you, it could be signs, labels, on-the-job training, or other.

The regulations of the USEPA (and authorized states) are deliberately vague on the subject of training for employees who work with universal waste.  It is the responsibility of the handler to determine if its training is adequate.  However, I have been advised of a good way to ensure compliance.  I was told by an authority of a state environmental regulatory agency that compliance with OSHA’s regulations at 29 CFR Part 1910 for worker protection will ensure compliance with the universal waste training requirements.  Indeed, such an achievement was referred to as the “Gold Standard” for compliance.

The training requirements for handlers of universal waste must be completed in addition to the required training for generators of hazardous waste.  My training, either at public workshops or at your facility, addresses the both of these regulations and much more.

Notification of Regulated Waste Activity Form for Hazardous Waste Generators

The US EPA requires you to submit a Notification of Regulated Waste Activity (8700-12) Form for certain activities involving wastes subject to the regulations of the Resource Conservation and Recovery Act (RCRA).  A Notification is required if you handle a regulated waste or hazardous secondary material and may be required under the following circumstances:

  • You are a Large Quantity Generator (LQG) or Small Quantity Generator (SQG) of hazardous waste.  A Conditionally Exempt Small Quantity Generator of hazardous waste (CESQG) is not required to notify.
  • You are a Large Quantity Handler of universal waste (accumulate >5,000 Kg of universal waste).
  • You recycle hazardous waste.
  • You transport, process, or re-refine used oil; burn off-spec used oil for energy recovery; or market used oil.  The generation, storage, and off-site transportation of used oil is not subject to notification.
  • You are an eligible academic entity opting into 40 CFR 262, Subpart K.
  • You are managing a hazardous secondary material.

Upon receipt of an initial notification form, your site will be issued a unique EPA ID number by the US EPA.  This number is specific to the geographic location of your site and does not change if you sell the property or expire if you go out of business.

If you already have an EPA ID number, you must submit a subsequent notification for changes in any of the following:

The Notification of Regulated Waste Activity Form is the method the US EPA or your state environmental agency (see below) relies on to track your regulated waste activities.  It is your responsibility to ensure the information they have is up-to-date, accurate, and complete. The US EPA recently updated its Notification of Regulated Waste Activity Instructions and Form Booklet in December 2011 and it contains very helpful information.

Many states with authorized hazardous waste programs have their own procedures and requirements for submittal of the initial and subsequent notification forms.  State-specific regulations may include:

  • A state-specific notification form in lieu of the federal form.
  • Time lines for submittal of the initial and subsequent notifications.
  • If using the US EPA form, a state mailing address for submittal.
  • Fees to accompany the notification.

It is very important that you check with your state to ensure your submittal meets their requirements.  

My training services cover the hazardous waste regulations of the US EPA and the HazMat Employee regulations of the US DOT.  I provide open enrollment training events nationwide and year round (my schedule) and on-site training to meet your exact needs.  Please contact me to arrange for the exact training services you require.

Management of Alkaline Batteries

Batteries are one of those items that we are so used to seeing in our home life, that we sometimes forget that these can be generated as a waste at our place of work.  In the course of a day you may unknowingly come into contact with many different types of batteries in a variety of applications:

  • Rechargeable lithium batteries in your laptop or cellphone.
  • Dry cell lead acid batteries as back-up electricity sources for emergency signs and lighting.
  • Liquid-filled lead acid batteries in your car or your company’s fork-truck.
  • Disposable dry-cell alkaline batteries in your flashlight.

My goal for this article is to provide guidance on the US EPA and US DOT requirements for dry-cell alkaline batteries, but I will briefly address the regulatory requirements for other batteries as well.

When spent, you’re responsible to determine if your batteries are a  hazardous or non-hazardous waste.  In other words:  make a hazardous waste determination for your batteries per the US EPA hazardous waste regulations of40 CFR 262.11.  This is something you must do on a case-by-case basis, but you can presume the following:

Hazardous waste:

  • Lead acid (liquid or dry) – D008 for lead.
  • Nickel/cadmium (or NiCad) – D006 for cadmium.
  • Lithium – D003 for reactivity.
  • Silver ion – D011 for silver.

Non-hazardous waste:

  • Dry cell alkaline batteries (D, C, AA, AAA, 6 volt, & 9 volt).

If your spent batteries are a hazardous waste you have three options for on-site handling and off-site disposal:

But I said this article would be about dry-cell alkaline batteries so let’s get back to them.  Your options for disposal of these batteries as a non-hazardous, solid waste are:

Throw in trash: if non-hazardous and not generated as a by-product of an industrial process, you may be able to dispose of alkaline batteries in the trash the same as you do the trash from your front office, break rooms and other non-production areas.  I don’t recommend this, and your state, municipality or county, and the landfill operator may not like it either.  I suggest you speak with all of them before you choose this option.

Handle as universal waste:  this is OK, but technically incorrect since the regulations at 40 CFR 273.2(b)(3) limits the universal waste option only to batteries that are a hazardous waste.  Alkaline batteries do not meet the US EPA definition of a D002 corrosive waste since they are solid.  Your state may differ from the US EPA in the definition of a corrosive hazardous waste and in that case, an alkaline battery might be a hazardous waste and therefore eligible for handling as a universal waste.  I have not heard of the US EPA or any authorized state environmental agency complaining if alkaline batteries are disposed of as universal waste.

Other off-site recycling:  if the universal waste option does not work, then I suggest you find a company able to recycle your batteries.  There are many companies out there and they provide accumulation containers and shipping instructions as well.

This brings us to the final hurdle and that is the US DOT requirements for off-site shipments of alkaline batteries.  As recently as 2008 the PHMSA within the US DOT indicated that alkaline batteries (AA, D, and C cell) though not subject to the Hazardous Materials Regulations for transportation were required to be, “securely packaged and offered for transportation in a manner that prevents the dangerous evolution of heat (for example, by effective insulation of exposed terminals)” (49 CFR 172.102, special provision 130).  This meant (note past tense) that the terminals of alkaline batteries had to be covered with non-conductive tape or each battery individually bagged.

But hold on, in separate tests in the summer of 2009 petitioners to the US DOT proved that even in the most extreme circumstances, the batteries in question could not generate enough heat to be a hazard in transportation.  US DOT agreed and indicated that no alkaline batteries of 9 volt or lower – which includes (AA, AAA, C, D, 6-volt, & 9-volt) arenot subject to the hazardous material regulations.  I could not find the petitions and DOT response on-line, but these two agency interpretations refer to the original documents and confirm the US DOT’s position (09-0150R &09-0090R).

The hazardous batteries are, of course, subject to the HMR and some such as lithium batteries have very restrictive regulations for transportation.  You will have to research this further or wait for me to write an article on them too.

Alkaline batteries are not a hazardous waste per the regulations of the US EPA and they’re not a hazardous material (HazMat) per the regulations of the US DOT.  You could throw them in the trash if you want and no one could stop you, but I strongly suggest you don’t.  Find a reputable recycler, arrange for on-site collection of your batteries, and educate your employees to ensure their proper accumulation, transportation, and disposal.

Contact me to schedule on-site training for only $1,749!

Review my open enrollment training schedule and register now!

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The Universal Waste Option for the Management of Hazardous Waste

Recently, Waste Management LampTracker, Inc. was fined $118,800 for violations at its Kaiser, MO facility where it collects and recycles universal waste lamps, mercury-containing equipment, and batteries (US EPA news release).  Its violations include:

  • Failure to maintain adequate aisle space in storage areas.
  • Failure to close and label hazardous waste containers.
  • Failure to conduct RCRA Training for its hazardous waste personnel.
  • Failure to close universal waste containers (emphasis mine).

It is the last of these that jumped out at me.  How is it that a company that specializes in the handling of universal waste could make such a fundamental oversight in its handling?  Perhaps you should take a close look at the way you handle universal waste at your facility to ensure fines such as these don’t happen to you.

The universal waste regulations, found at 40 CFR 273 and summarized well on this US EPA website, were created in 1995 to reduce the regulatory burden for commercial facilities that might otherwise be generators  of hazardous waste and to reduce landfill disposal and increase recycling of certain kinds of hazardous waste.  Since the wastes originally considered for this regulation are generated in a multitude of commercial activities, they were designated as universal waste.  Any industrial, municipal, or commercial facility may take advantage of the universal waste regulations if it generates the type of hazardous waste specified.  The four types of hazardous waste identified by the US EPA that may be handled as universal waste are:

  • Lamps or bulbs.
  • Batteries.
  • Mercury-containing equipment (formerly:  mercury thermostats only).
  • Pesticides.

I will only address the first three of the above in this article.  More information about recalled or cancelled pesticides can be found here:  What is a Universal Waste Pesticide?

In order to avoid the kinds of fines faced by WM LampTracker you must ensure your universal waste is handled properly.  First of all, the universal waste must be labeled; any of the following is acceptable:

  • “Universal Waste – Battery/Lamp/Mercury-Containing Equipment”
  • “Waste – Battery/Lamp/Mercury-Containing Equipment”
  • “Used – Battery/Lamp/Mercury-Containing Equipment”

If you don’t have a container to label, you can place a sign over a designated storage area or use your imagination to ensure a label is visible and legible.

Speaking of containers, the requirements for universal waste vary based on the type.  Only lamps are required to be in closed containers from the moment of generation.  Batteries and mercury-containing equipment need only be placed in containers if they show signs of leaking or damage.  In any case where a container is required, it must remain closed at all times unless adding or removing waste.

The biggest regulatory relief afforded by the universal waste regulations is the allowance of up to one year for on-site accumulation.  You may accumulate universal waste even longer if the sole purpose is to have enough to justify an off-site shipment.  In other words, hold on to that half-full 5-gallon bucket of batteries until it is full; no matter how long it takes.  Keep in mind that you must be able to justify your decision to retain the waste beyond one year.  In any case, you must be able to identify the date of accumulation through labels, signage, or an inventory system.

Refer to 40 CFR 273 for a full list of on-site waste management practices you are allowed and the regulatory requirements.  Keep in mind that any of the below may result in the generation of a solid waste and possibly a hazardous waste.

  • Sorting of batteries by type or combining in one container.
  • Discharging residual charge in batteries or regenerating them.
  • Disassembling batteries or battery packs.
  • Removing batteries from consumer products.
  • Removing electrolytes from batteries.
  • Remove mercury ampules from equipment.

Notice that there are no waste management methods mentioned for lamps in 40 CFR 273, so where does this leave bulb crushers?  It does say that a handler “must immediately clean up and place in a container any lamp that is broken…” without indicating if the breakage is accidental or a deliberate form of on-site management.  I advise that bulb crushers be considered carefully before use.  Many states require a permit, quarterly reports, and/or air monitoring to ensure limits on airborne mercury concentrations are not exceeded when bulb crushers are used.  The burden of compliance with these state regulations may outweigh any benefits to crushing your bulbs.  Also, the crushed bulbs may no longer be accepted as universal waste and may need to be handled as hazardous waste.  Some states, such as Indiana, forbid the crushing of lamps if you intend to manage them as universal waste (more).

Spills of universal waste should be immediately cleaned-up and placed in a container to minimize any further release.  Incidental breakage of a universal waste such as broken bulbs, leaking batteries, cracked thermometers, etc. does not preclude their handling as universal waste as long as they have been placed in a container to minimize any further release.

And finally, off-site shipments of universal waste must be transported by a Universal Waste Transporter and are prohibited from being transported to anything other than another Universal Waste Handler, a destination facility (defined at 40 CFR 273.9), or a foreign destination.

After this point, your regulatory requirements depends on how much universal waste you accumulate (not generate) on-site.  If you accumulate <5,000 kg of universal waste you are a Small Quantity Handler.  In addition to the above handling requirements, you must inform applicable personnel of proper handling and emergency procedures for your universal waste.  This may be in the form of classroom training, on-the job instruction, signs, labels, etc.  If you accumulate >5,000 kg of universal waste, you are a Large Quantity Handler and are required to obtain an EPA ID# unless you already have one, and to ensure that all employees are thoroughly familiar with proper waste handling and emergency procedures.  This language is deliberately similar to that in 40 CFR 262.34(d)(5)(iii) for Small Quantity Generators of hazardous waste.  Other than the need for an EPA ID# and the level of employee awareness, there is little difference between a LQH and SQH of universal waste.

All of the above are Federal requirements.  You must carefully research your state requirements as well to ensure full compliance.  Many states have added to the list of materials managed as universal waste or have not fully adopted all of the original 1995 regulation or subsequent amendments.  A US EPA directory of state-specific requirements can be found here.

As always, proper training is important to achieve a full understanding of not only the universal waste regulations, but of all hazardous waste regulations under RCRA.  My one-day training events meet the US EPA requirements for RCRA Training and the US DOT requirements for HazMat Certification.  I can also conduct on-site training for all of your applicable employees in one day.