Audit, Compliance and Risk Blog

Federal and state laws govern “hazardous wastes”—the federal law is commonly called RCRA, after the Resource Conservation and Recovery Act of 1976. However, RCRA itself was enacted as an expansion of the prior Solid Waste Disposal Act of 1965, and requirements for both solid and hazardous wastes have been revised many times in recent decades. The US Environmental Protection Agency (EPA) administers these requirements nationally, delegating many provisions to individual states that qualify for authorization to assume regulatory roles.

This blog summarizes provisions for determining whether a “solid waste” qualifies as a “hazardous waste.” It finishes the story I started in my last blog, summarizing how the facility that first produces hazardous wastes—the “generator”—determines if a material has become a “waste” and, if so, whether that waste is “solid waste.”

RCRA starts with the definition of “solid waste” I quoted in my last blog, then defines hazardous waste as:

“ ... a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may—

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”

RCRA and EPA’s implementing regulations provide the following independent mechanisms for generators to determine which wastes are hazardous.

Is My Waste a “Listed Hazardous Waste”?

EPA provides lists of potential sources for wastes, and directs generators to consider the wastes produces from these sources as hazardous. This allows generators to comply with RCRA without spending money to test their wastes. EPA promulgates the following lists:

1. Manufacturing byproducts from nonspecific sources (“F wastes” and acute hazardous “H” wastes).

2. Manufacturing wastes from specific sources (“K wastes”).

3. Discarded commercial chemical products, off-specification species, container residues, and spill residues, that contain any listed “hazardous constituent” (further subdivided to distinguish acute hazardous wastes (AHW; “P wastes”); toxic wastes (“U wastes”); and others).

Individual hazardous wastes are assigned hazardous waste codes based on the letters in this list. For example, F007 is spent cyanide plating bath solutions from electroplating operations. Recognizing that some wastes from listed source categories may not actually be “hazardous,” EPA provides procedures under which a generator can demonstrate that a particular waste isn’t hazardous, and apply to have that waste “delisted.”

Is My Waste a “Characteristic Hazardous Waste”?

EPA  applies the definition quoted above, to consider what chemical or biological characteristics might render a waste hazardous. EPA has defined four of these characteristics, and promulgates tests that can be applied to a waste to see if it “exhibits a characteristic.” These characteristics are:

• Ignitability – waste code D001

• Corrosivity – waste code D002

• Reactivity – waste code D003

• Toxicity – waste codes D004 – D043.

Does “Generator Knowledge” Lead Me to Recognize a Waste as Hazardous?

In addition to the formal methods identified above, RCRA allows an organization to apply its “generator knowledge” to determine that a waste is hazardous. Organizations often use this opportunity to begin compliance without the expense of testing wastes they “know” will qualify as hazardous.

Does My Waste Qualify For Any Exclusions?

RCRA and EPA’S regulations provide a large number of exclusions from regulations, for the following wastes that qualify as hazardous using one or more of the methods summarized above:

• Household Hazardous Waste 

• Agricultural Waste

• Mining Overburden 

• Fossil Fuel Combustion Waste

• Oil, Gas, and Geothermal Wastes (Bentsen Amendment)

• Trivalent Chromium Wastes

• Mining and Mineral Processing Wastes

• Cement Kiln Dust

• Arsenically Treated Wood

• Petroleum Contaminated Media & Debris from Underground Storage Tanks

• Injected Groundwater

• Spent Chloroflurocarbon Refrigerants

• Used Oil Filters

• Used Oil Distillation Bottoms

• Landfill Leachate or Gas Condensate Derived from Certain Listed Wastes

• Project XL Pilot Project Exclusions.

EPA also defines special wastes, which would qualify as hazardous but are granted special less-restrictive regulatory requirements. These include a variety of mining and petroleum-production related wastes, and a variety of ashes (fly ash waste, bottom ash waste, etc.). Used oil and vehicle batteries are regulated separately. EPA also defines universal wastes that comprise ubiquitous wastestreams where EPA considers full regulation to be impractical (including waste batteries and pesticides, waste mercury-containing thermostats, and fluorescent lamps).

Self-Assessment Checklist

Assuming the organization has reviewed its materials streams to identify which materials qualify as “wastes” (my first hazardous waste identification blog discussed these steps) then it can proceed to determine which wastes are hazardous:

Has my organization developed an inventory of all its waste streams?

Has it evaluated each waste stream against EPA’s RCRA requirements:

• Listed wastes

• Characteristic wastes

Has my organization applied “generator knowledge” to determine that any wastes are hazardous?

Has my organization evaluated available exclusions, to determine if any wastes that otherwise qualify as “hazardous” are excluded from regulation?

Has the organization determined if any of its wastes qualify for special regulatory treatment, including:

• Special wastes

• Universal wastes

• Used oil

• Waste (vehicle) batteries

• Other ________________________

Where Can I Go For More Information?

• EPA hazardous wastes homepage 

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com.

photo credit: JPC24M via photopin cc