The title of this article contains three questions, but really they are all the same.  If you have a product that has been abandoned, then it has been discarded; and if a product has been discarded, then it is a solid waste.  Once you have determined your product is a solid waste, you must conduct a hazardous waste determination and identify its final status as a hazardous waste, non-hazardous waste, or perhaps a waste with an applicable exclusion from regulation.

A question I frequently receive at my Public Training Seminars and my Onsite Training goes something like this,

Company A has a 55-gallon drum of an unused product in storage.  The container is unopened and it is believed that the contents are still usable, however Company A has no immediate plans for use and does not know what it is going to do with the drum.  Based on the MSDS and generator knowledge the product will be a hazardous waste when disposed of.  When, if ever, must Company A begin to manage the unused product as a hazardous waste?

This is tough question because the regulations can only take you so far.  After that it is up to you as the generator of the waste to determine if the product in question is a solid waste and if so, is it a hazardous waste.  This article will review the applicable Federal regulations of the US EPA to help identify when a product becomes a waste.  It will also provide some criteria to follow when making your decision of Product v. Waste.

Per the regulations of the US EPA at 40 CFR 261.2 a solid waste is any discarded material that is not excluded elsewhere by regulation.  A discarded material is defined by regulation as any material which is:

• Abandoned
• Recycled
• Inherently waste-like
• A military munition

This article will look closer at what it means to abandon a material and how that may apply to Company A’s situation.

The regulations further define how a material can be a solid waste if they are abandoned by being:

• Disposed of
• Burned or incinerated
• Accumulated, stored, or treated (not recycled) before or in lieu of being abandoned by being disposed or, burned, or incinerated.

The question is further complicated if the material in question is a Commercial Chemical Product (CCP) as in the case Company A’s unused product.  “An unused CCP meets the definition of a solid waste when the generator makes the decision to discard it. Under RCRA, unused products do not become ‘waste’ until they become ‘discarded material.’ EPA believes that an unused product becomes ‘discarded’ when an intent to discard the material is demonstrated.” (RCRA Online FAQ’s)

So what is a “decision to discard”?  and how is “an intent to discard” demonstrated?  In the end it comes down to your decision as the generator of the waste.  And, of course, the opinion of the US EPA or State Environmental Agency Investigator who may or may not agree with you.  To help you navigate this decision, the following information was derived from a Missouri DNR guidance document:  Waste or Product Determination Guidance.

• The generator must be able to document the ability to use the material in a specified process.  Changes in formulations, processes and equipment may make a material obsolete.  Unusable material must be properly disposed of and can not be stored.
• If a facility believes that another company can use a material, that facility must document they are actively attempting to market the material.  If they locate a company that is interested in using the material as a product, that company must demonstrate they can legitimately use the material in one of its processes.
• To be considered a product, materials must be protected from the environment and extreme storage conditions.  The environment and human health must be protected if the material is hazardous.
• To be considered a product, the facility must be able to identify the material being stored and its use.  If the facility representative is unaware of what the material is or, its intended use, it should be considered a waste.  Ideally, if the material is a product, the facility should track it in the inventory or accounting system.
• To be considered a product, the material must be stored as though it has value.  It must be stored in accordance with guidance and warnings in the Material Safety Data Sheet, such as stored in a dry place and stored at a proper temperature.  The facility should manage stored materials in accordance with its quality control policies and procedures.
• A container used to store product must be in good condition and compatible with the material being stored.  If containers are rusted, leaking, open, etc. then the material can be considered a waste because of exposure or contamination.
• The material itself must be in a condition that it can be used in a manner originally intended for the material.  If the material can be legitimately used as a substitute for another product, without any processing or treatment, the material is not a solid waste and therefore is not a hazardous waste.  If your facility can reasonably use the material in the future, then the material is a product.
• To be considered a product, the recommended shelf life of the material must not have been exceeded.  Excessive storage times beyond the expiration dates or recommended shelf life of the products is an indicator that the material is a waste and not a usable product.
• Products and waste should be stored and managed separately.  If a drum is labeled “Quarantined”, “Do not use”, “Hazardous Waste”, “Waste                                    “, etc. the material is considered a waste and must be managed as such.

The above bullet points are from a guidance document and compiled by one state agency (Missouri DNR).  Your State may take a different view.  I suggest that you review the regulations, consider the above guidance information, inspect your facility, and decide for yourself what is waste and what is product.  The overall lesson from the MO DNR guidance document is that if it is product, then you should treat it that way and it should be clear to a 3rd party that the material in question has value to you.

If you are uncertain, then I suggest you arrange for transportation off-site for treatment, storage, or disposal.  This process has its own regulations that you must follow in order to avoid the pitfalls of non-compliance.

No matter your hazardous waste generator status:  LQG, SQG, or CESQG; I propose that training is the best way to ensure you are in compliance with the regulations of the US EPA, and your State, as a generator of hazardous waste.

Please contact me for a free consultation of your RCRA Training requirements.