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.
- 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.
- Also, just like all other Universal Waste, a pesticide must be identified as a hazardous waste in §261 subparts C (characteristic) or D (listed).
- 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.
- 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.