Universal Wastes

We have discussed the universal waste program regulatory structure and requirements for universal waste handlers in previous editions of the Compliance Corner. In this installment, we discuss three additional universal waste topics: 1) requirements for universal waste transporters and destination facilities, 2) state authorization issues, and 3) the effects of the Mercury-Containing and Rechargeable Battery Management Act.

1. Universal waste transporter and destination facility requirements

The function of transporters and destination facilities in the universal waste program is described in the next two sections, respectively.

Transporters

A universal waste transporter is a person/entity engaged in the offsite transportation of universal waste by air, rail, highway, or water. [§273.9] If a handler transports any amount of universal waste, he/she is a transporter subject to Part 273, Subpart D; there is no de minimis cut-off amount like there is for used oil generators who can transport up to a certain amount and still remain just a generator. [RO 14088] Companies that are not hazardous waste transporters can be universal waste transporters. This is true because no manifests are required for universal waste shipments—just bills of lading.

Like universal waste handlers, transporters are prohibited from treating, recycling, or disposing universal wastes. They also must immediately contain any spills or releases of materials and must manage any cleanup residue that fits the definition of hazardous waste under full RCRA requirements. Finally, they may only transport universal wastes to a universal waste handler, a destination facility, or a foreign destination.

Transporters may only store universal wastes at a transfer facility for ten days or less. If they exceed this time limit, they become universal waste handlers subject to the small or large quantity handler requirements. [§273.53(b), RO 14186]

DOT requirements

Universal waste transporters are fully subject to DOT requirements, spelled out in 49 CFR Parts 171–180. Note, however, that even though they are hazardous wastes under RCRA, universal wastes are not hazardous wastes under DOT rules (because shipments of these wastes don’t require a manifest). Thus, the word “waste” should not be used in front of or in a shipping description. [§273.52(b)] Instead, transporters of universal waste shipments must comply with the DOT requirements that would be applicable if the waste were being transported as a product. For example, in an October 1, 1998 DOT letter (Ref. No. 98-0250), DOT noted that “Mercury contained in manufactured articles” may be used to describe shipments of universal waste fluorescent light bulbs. Table 1 lists DOT shipping descriptions for batteries that are commonly managed as universal waste.

 

When transporting universal waste batteries:

On April 3, 2009, DOT wrote a public letter (available at http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Files/2009_Battery_Safety_Compliance_Advisory.pdf) to battery recyclers and other battery handlers to emphasize the need to properly package spent batteries before shipping them offsite. In that letter, DOT noted an ongoing trend of serious safety problems and noncompliance related to the classification, packaging, marking, labeling, documentation, and transportation of spent batteries. Common violations and safety problems noted include:

The April 3, 2009 letter contains a summary of the DOT requirements that apply to ground shipments of batteries for recycling or disposal. See also DOT Interpretation 09-0090, available at http://phmsa.dot.gov/hazmat/regs/interps.

On January 14, 2009 [74 FR 2200], DOT issued a final rule that 1) clarifies the requirement that batteries and battery-powered devices be offered for transportation and transported in a manner that prevents short circuiting, the potential of a dangerous evolution of heat, and/or damage to terminals; and 2) includes several examples of packaging methods that can be used to meet this requirement. This may be achieved by packing each battery in fully enclosed inner packagings made of nonconductive material or separating the batteries from each other and other conductive material (e.g., metal) in the same package. Compliance with this new rule was required beginning January 1, 2010.

Q What requirements apply to lithium batteries when they are shipped offsite to a battery reclaimer?

A A hazardous waste manifest is not needed for shipments of universal waste. However, the DOT hazmat regulations will continue to apply if the universal waste meets the definition of a hazardous material or a hazardous substance. Lithium batteries meet the definition of a hazardous material (Class 9); thus, full compliance with the DOT regulations will be required (e.g., shipping papers, markings, packaging requirements).

For ground shipments of lithium batteries (including lithium-ion batteries), batteries have to be separated or packaged so as to prevent short circuits and must be packed in a strong outer packaging or contained in equipment. [Special Provisions 188 and 189 of 49 CFR 172.102 and 49 CFR 173.185(d)] For example, the batteries could be individually packaged in plastic baggies or have their terminals taped to prevent short circuits.

Destination facilities

According to §273.9, a universal waste destination facility is any entity that treats, recycles, or disposes a particular category of universal wastes. Because these activities pose significant risks to human health and the environment, destination facilities are subject to the same management standards as any other TSD facilities managing hazardous waste. First and foremost, they must have a RCRA permit [unless they are a §261.6(c) permit-exempt recycling facility]. Additionally, all equipment must be designed and operated in accordance with the Part 264 or 265 management standards, and the substantive and administrative land disposal restrictions (LDR) program requirements are applicable, including recordkeeping. [64 FR 36481] The destination facility is typically the first facility handling universal waste that is responsible for compliance with any LDR provisions. [RO 14088] However, if the destination facility is a solid (nonhazardous) waste landfill, the handler will have to ensure that any decharacterized universal wastes or nonhazardous residues from treating universal waste meet LDR treatment standards before they go into that landfill. [RO 14756]

Destination facilities are subject to requirements in Part 273, Subpart E. In addition to the above major requirements, they are required to maintain a record of all universal wastes they receive via a log or by keeping copies of invoices, bills of lading, or other shipping documents.

When containers of universal waste are shipped from a handler, they are labeled as universal wastes—not hazardous wastes. When these wastes are received at destination facilities, though, they are managed under the facility’s hazardous waste permit. EPA has noted that such containers of universal waste received at destination facilities do not have to be relabeled as hazardous waste. [RO 14088]

2. State authorization issues

The universal waste program was not promulgated to implement the HSWA amendments to RCRA. Therefore, the universal waste program took effect on May 11, 1995 only in those states that were not authorized for the base RCRA program. In authorized states, the universal waste rules weren’t effective until states revised their hazardous waste program to incorporate the regulations. [60 FR 25536, RO 11952] Similarly, when EPA added hazardous lamps to the program (effective January 6, 2000 at the federal level), that rule was not effective in authorized states until they adopted it.

For handlers and transporters, the universal waste program is less stringent than preexisting RCRA hazardous waste rules. Therefore, states are not obligated to add this program to their existing regulatory structure (although EPA encourages states to do so). Thus, the universal waste program has taken effect only in those authorized states that have chosen to adopt and administer either the federal universal waste program or their own (no-less-stringent) version of the program.

Current state status

The map in Figure 1 shows the current adoption status of the base (May 1995) universal waste program in the United States. All states have 1) become authorized to administer this program, 2) adopted the universal waste program, or 3) EPA administering the program (Alaska and Iowa).

 

Interstate transport

States may add other materials to their own universal waste program (e.g., paint and paint-related wastes are universal wastes in Texas). These situations present logistical problems for the interstate transportation of these wastes.

When shipping to another handler or a destination facility, a universal waste handler must know whether the states that his/her waste is being shipped to or through regulate the specific wastes being shipped as universal waste. In those states that do regulate the specific wastes in the shipment as universal waste, compliance with only the Part 273 standards will be required. In those states that do not regulate the wastes as universal waste, compliance with the full hazardous waste provisions is required, including the use of manifests and hazardous waste transporters. [June 12, 2002; 67 FR 40520] There have been instances where a truck has broken down in a state that has not adopted the waste as universal waste, and the handler/transporter was fined for having unmanifested hazardous waste onboard.

In some cases, a waste regulated as universal waste in one state may be sent to a state where it is still subject to the full set of hazardous waste regulations. For the part of the trip through the originating state and any other states where the waste is regulated as universal waste, neither a hazardous waste transporter nor manifest would be required. However, when the waste travels through the receiving state and any other states that still consider the waste to be hazardous, a manifest is required and transport must be accomplished by a hazardous waste transporter. In these situations, the originating facility should complete a manifest and send it to the transporter who will be carrying the waste through the first state that considers the waste to be hazardous. EPA recommends that the originating facility note in Block 14 of the manifest that the waste is covered under the universal waste regulations in the originating state, but not in the receiving facility’s state. The receiving facility would then sign the manifest and send it back to the originating facility. [May 11, 1995; 60 FR 25537] Although EPA’s guidance is silent on the matter, an LDR form would also be required by the receiving facility; thus, it would be necessary for the originating facility to also forward an LDR form to the receiving facility (e.g., sending it to the transporter who will be carrying the waste through the first state that considers the waste to be hazardous).

Hazardous waste that is not regulated as universal waste in the originating state may sometimes be sent to a state where it qualifies as universal waste. In this case, the waste must be carried by a hazardous waste transporter in the originating state and any other states where it is not a universal waste. The originating facility would need to complete a manifest and give copies to the transporter who picks up the waste. However, transportation in the receiving state and any other states where the waste is universal waste would not require a manifest or need to be carried out by a hazardous waste transporter. Even so, the originating facility is responsible for ensuring that the manifest is forwarded to the receiving facility and for obtaining a signed copy back from the receiving facility. Again, EPA recommends that the originating facility note in Block 14 of the manifest that the waste is covered under universal waste regulations in the receiving state, but not in the originating state. [May 11, 1995; 60 FR 25537, RO 14088] Although the receiving facility may not require an LDR form from the generator in this situation, the generator’s state RCRA program will require that the generator complete the appropriate LDR form per the state equivalent of §268.7(a). Additionally, even though EPA’s guidance suggests that LDR forms are not required for shipments of universal waste, some receiving facilities may require them anyway if they will be treating or recycling the waste.

3. Mercury-Containing and Rechargeable Battery Management Act

In May of 1996, the Mercury-Containing and Rechargeable Battery Management Act became law. This law was designed, among other things, to 1) standardize efforts already underway in over a dozen states to promote the recycling or proper disposal of lead, mercury, nickel-cadmium, and other types of rechargeable batteries; and 2) limit the mercury content of consumer batteries. In a nutshell, the act:

On September 22, 1998 [63 FR 50569], EPA approved a new label for rechargeable batteries that helps consumers identify recyclable batteries and locate the nearest battery collection center. [RO 14483]

EPA has noted that the §§273.13(a)(2)/273.33(a)(2) provision that allows handlers to remove electrolyte from certain batteries is covered under the auspices of the battery act. This means that states may not alter this provision when implementing their own version of the universal waste program. [RO 14124]

States that have battery management standards are required by the law to have programs identical to the federal universal waste program for the management of these materials. Hazardous waste batteries that meet the definitions in the law must be managed as universal waste. [EPA/530/K-05/019] Although the law clearly requires all states to have a national, uniform set of collection, storage, and transportation regulations (identical to the universal waste program) for the noted types of batteries, the law does not address the subsequent recycling or disposal of those batteries. Thus, states may adopt battery recycling or disposal standards that are more stringent than existing federal requirements under RCRA.

A good summary of this law is available in Implementation of the Mercury-Containing and Rechargeable Battery Management Act, EPA/530/K-97/009, November 1997, available from http://www.epa.gov/epawaste/hazard/recycling/battery.pdf.