The regulations of the Resource Conservation and Recovery Act (RCRA) mandate a generator of waste manage it from “cradle-to-grave” meaning: from the first moment of its generation to its final disposal. However, there are times when something might be regarded as a waste but instead is subject to an exclusion or exemption from regulation. Samples collected for the purpose of a hazardous waste determination are subject to an exemption from regulation at 40 CFR 261.4(d): the analytical sample exemption.
The purpose of this article is to identify and explain the exemption from all RCRA regulations available to a sample submitted to a lab for analysis subject to the Analytical Sample Exemption.
Before we begin:
Terms critical to understanding this exemption:
- Solid waste. It’s definition at §261.2 is long and complicated. To simplify: it is anything discarded.
- Sample collector. This is any person who collects a potentially regulated sample. It may not be the person who eventually becomes the generator of the waste (RO11053).
- Laboratory (aka: lab). The lab receives and analyzes the sample and it may – under the exemption – return the sample to the sample collector. As long as the lab does not discard the sample or violate any of the other conditions of the exemption, it will not be the generator of the waste.
- Generator. This term is defined at §260.10. The generator is the person responsible for the “cradle-to-grave” management of the waste. As long as the sample is subject to the analytical sample exemption there will be no waste and no waste generator.
The exemption is found at 40 CFR 261.4(d). Following it in the regulations are two similar-sounding but distinct exemptions:
- §261.4(e) Treatability study samples. This exemption applies to the person(s) collecting and submitting larger-volume samples of hazardous waste for testing to determine the effectiveness of a specific treatment method.
- §261.4(f) Samples undergoing treatability studies at laboratories and testing facilities. This exemption applies to the samples and the lab performing the treatability study.
Though similar in many of their conditions, the analytical sample exemption differs in that it applies to materials with unknown characteristics being sent to a lab for the purpose of determining those characteristics.
If your state has an authorized hazardous waste program it may not recognize this Federal exemption or have its own version.
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The Analytical Sample Exemption:
The exemption applies to either of the following if it is collected for the sole purpose of testing to determine its characteristics or composition:
- A sample of solid waste.
Or…
- A sample of water, soil, or air.
The exemption does not apply to product samples since – as products – they are not subject to RCRA.
The above samples are not regulated as a waste when engaged in the following:
- Transport to lab for testing.
- Transport from lab to sample collector after testing. (The exemption applies even if lab analysis identifies a characteristic of a hazardous waste).
- Stored by sample collector before transport to lab for testing.
- Stored in lab before testing.
- Stored in lab after testing but before return to sample collector. While this includes long-term storage if temporary and for a specific purpose, i.e., until the conclusion of a court case or enforcement action, it does not allow for indefinite storage without a purpose (46 FR 47428).
The exemption ends when the sample is received at the sample collector at which point it becomes a solid waste with the sample collector as the generator. The solid waste is then subject to full RCRA regulations (RO12438 & RO12917). One requirement is that the generator must then conduct a hazardous waste determination.
The exemption does not apply if the lab discards the sample in which case the lab would be the generator of a waste (RO12438).
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Transportation Under the Exemption:
As noted above, exempt activities include transportation to and from the lab. But USEPA does not regulate the transportation in commerce of hazardous materials (hazardous waste is a type of hazardous material), that is the responsibility of USDOT/PHMSA. Therefore, in order to qualify for the parts of the exemption related to transportation, the sample collector or lab must do one of the following:
- Comply with the applicable USDOT/PHMSA regulations for the transport of samples at 49 CFR 172.101(c)(11).
- Comply with the applicable shipping requirements of the U.S. Postal Service. I don’t advise using USPS.
Or…
- Comply with the following if the sample collector (not the lab) determines the sample is not subject to USDOT/PHMSA, USPS, or other requirements:
- Assure the following information accompanies the sample:
- Sample collector’s name, mailing address, and telephone number.
- Lab’s name, mailing address, and telephone number.
- Quantity of the sample.
- Date of shipment.
- Description of the sample.
- Package the sample so that it does not leak, spill, or vaporize from its packaging.
- Assure the following information accompanies the sample:
If a sample is to be exported from a U.S. sample collector to a foreign lab or imported from a foreign sample collector to a U.S. lab, the mass of the sample must be no more than 25 kg (55 lb).
Q: Are there any limits on the mass or volume of the sample under the analytical sample exemption?
A: Only if the sample is to be exported to or from the U.S., in which case the mass of the sample must be no more than 25 kg (55 lb).
Conclusion:
The analytical sample exemption is helpful to those sending samples to a lab for the purpose of determining a hazardous waste characterization and the lab. Later articles will address the USDOT/PHMSA exception from regulation for samples and the USEPA exemptions for treatability samples.
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