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In the United States, hazardous wastes are subject to regulations mandated by the Resource Conservation and Recovery Act (RCRA). Every month, we provide clear, in-depth guidance on a different aspect of the RCRA regulations. The information presented here is an excerpt from McCoy’s RCRA Unraveled, 2022 Edition.

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LDR Program Characterization

The basic intent of characterization for the LDR program is shown in Figure 1. Per §268.7(a), hazardous waste generators must determine whether their wastes meet LDR treatment standards at the point of generation or must be treated before they can be land disposed. The federal regs give generators the option of making this determination by testing or knowledge.

Figure 1

Treatment facilities that receive and treat hazardous wastes to meet the LDR standards must test the wastes and residues from treating the wastes in accordance with their WAP to ensure they meet the applicable standards. [§268.7(b)] Facilities that recycle hazardous wastes (e.g., solvent recyclers) are a subset of treatment facilities and must meet the same LDR testing requirements.

Finally, land disposal facilities that dispose of hazardous wastes and residues from treating such wastes must spot test them in accordance with their WAP to ensure they meet LDR standards before they are land disposed. [§268.7(c)]

Additional characterization requirements under the LDR program are discussed below for each of these three entities. But first, we look at the overall strategy for showing that an LDR treatment standard has been met.

Meeting LDR standards

“While a statistical evaluation is used to determine if a waste is hazardous, all parts of the waste must be treated to meet the applicable [LDR treatment] standards, not just a representative sample. Thus, if results show that ‘hot spots’ remain, this is presumptive evidence that treatment was not effective and there is noncompliance with the LDR treatment requirements…. [I]n application of the land disposal treatment standards, all portions of the waste must meet the applicable treatment standards, i.e., no portion may exceed the regulatory limit.” [May 26, 1998; 63 FR 28567] See also May 12, 1997; 62 FR 26047 and Guidance on Demonstrating Compliance With the Land Disposal Restrictions (LDR) Alternative Soil Treatment Standards, EPA/530/R-02/003, July 2002 (available at This approach gives regulators the ability to take just one sample for compliance determinations.

In the process of developing the LDR standards, the agency analyzed two types of samples: grab samples and composite samples. Grab samples are discrete, one-time samples taken from any part of the waste at a specific point in time. EPA set treatment standards for the nonwastewater forms of all hazardous wastes and the D004–D011 wastewaters based on analyses of grab samples. “Wastewaters” are defined in §268.2(f) as “wastes that contain less than 1% by weight total organic carbon (TOC) and less than 1% by weight total suspended solids (TSS).” “Nonwastewaters” are defined in §268.2(d) as all waste forms that are not wastewaters.

A composite sample is a combination of samples collected at various locations for a given waste, or samples collected over time from the waste stream. Treatment standards for hazardous wastewaters (other than D004–D011 wastewaters) were set by the agency using composite samples.

The RCRA regulations require that compliance with LDR treatment standards be based on the same type of sampling that was used to initially establish the standard. Thus, for all nonwastewaters and D004–D011 wastewaters, compliance with LDR standards is based on analysis of grab samples. On the other hand, compliance with LDR standards for all wastewaters (other than D004–D011 wastewaters) is based on analysis of composite samples. [§268.40(b), Footnotes 3 and 5 to the §268.40 table of treatment standards, June 23, 1989; 54 FR 26606, June 1, 1990; 55 FR 22539] In addition, §268.40(b) requires compliance for wastewaters to be based on “maximums for any one day,” implying that the hazardous constituent concentrations in a daily composite sample (which may be made up of several discrete grab samples) cannot exceed the concentration-based standards in the §268.40 table of treatment standards.

EPA believes that grab samples generally reflect maximum process variability and thus would reasonably characterize the range of treatment system performance. [June 23, 1989; 54 FR 26605, June 1, 1990; 55 FR 22539] The grab sample also meets the ultimate objective of the LDR program that all hazardous waste to be land disposed be treated to minimize threats, not just the average portion of the waste (a possible result of using composite sampling). In addition, since grab sampling is based on an individual sampling event, it facilitates the collection of data to evaluate compliance. [EPA/530/R-12/001]

Generator LDR testing/knowledge

A generator of hazardous waste must determine if the waste meets its applicable treatment standard or requires treatment before it can be disposed of. The regulations allow the generator to use testing or knowledge (or both) for this determination. If the generator claims the waste meets the treatment standard, they must certify this per §268.7(a)(3). “Where this determination is based solely on the generator’s knowledge of the waste, the agency is requiring that the generator maintain in the facility operating record all supporting data used to make this certification.” [November 7, 1986; 51 FR 40597]

Most hazardous wastes do not meet their LDR treatment standard at the point of generation, so the generator may not need to certify anything when shipping the waste offsite. Instead, the generator simply sends a notification to the TSD facility, noting that it is shipping a waste subject to the LDR program that requires treatment to meet the appropriate standards before land disposal.

An April 4, 2006 final rule [71 FR 16872] allows generators to choose not to determine if their hazardous waste requires treatment prior to land disposal. If the generator chooses this approach, they must manifest the waste to a RCRA-permitted hazardous waste treatment facility that will have the responsibility for determining if treatment is required. In this case, the LDR notification sent with the waste will include only 1) the waste code(s), 2) the manifest tracking number of the first shipment, and 3) the following statement: “This hazardous waste may or may not be subject to the LDR treatment standards. The treatment facility must make the determination.”

To save money on sampling/analytical costs, generators often want to obtain LDR compliance data for a waste at the same time they are determining whether the waste is hazardous. This is particularly true when characterizing a site that may contain hazardous soil. [EPA/530/R-02/003] EPA has clarified that generators can determine if their wastes must be treated to meet LDR treatment standards (before they can be land disposed) at the same time as they make hazardous waste determinations. [§268.7(a)(1), April 4, 2006; 71 FR 16872] For example, a generator could make a single request to a laboratory to perform analytical testing to determine whether a sample of its waste 1) is hazardous, and 2) meets LDR treatment standards for primary waste codes and any underlying hazardous constituents. However, keep in mind that making a hazardous waste determination is different from determining compliance with LDR treatment standards. The former can be based on statistics—the latter cannot.

Generators who treat their hazardous wastes onsite to meet LDR standards are subject to treatment facility LDR testing requirements and to the WAP requirements in §268.7(a)(5). Generators that dispose of hazardous wastes onsite are also subject to disposal facility LDR testing requirements.

Identifying underlying hazardous constituents

The LDR treatment standards for certain characteristic wastes include treatment requirements for underlying hazardous constituents (UHCs). UHCs are any constituents in the universal treatment standards (UTS) table in §268.48 that the generator reasonably expects to be present in their characteristic waste at its point of generation at concentrations greater than the corresponding UTS concentrations.

How are generators supposed to determine whether they have UHCs in their wastes? They can use testing or knowledge—or a combination of the two. EPA notes that generators may rely on knowledge of the raw materials used, the process, and the potential reaction products. [May 24, 1993; 58 FR 29872, EPA/530/R-12/001] However, RO 13748 states that, where no institutional knowledge exists concerning waste contaminants (e.g., for soil contaminated by a previous party), analysis should be conducted for the entire list of §268.48 constituents.

In other guidance [RO 14325], EPA states that the generator “may use testing or knowledge to ascertain if [UHCs] are present at levels above UTS. Where this determination is based on testing, any of the constituents not shown to be below UTS and not otherwise known to be below UTS should be listed as a ‘constituent of concern’ [on LDR paperwork].” If a one-time analysis for all of the §268.48 constituents is conducted, subsequent analysis may be limited to only those UHCs identified in the initial sampling and analysis. [May 24, 1993; 58 FR 29872]

The problem with this approach is the extremely high analytical cost associated with analyzing a waste for all §268.48 constituents. In our experience and in discussions with regulators, we find that most generators rely on analytical results that have been collected for other purposes (e.g., for waste identification) and on process knowledge to identify UHCs in their wastes.

For example, a facility may know a particular process does not use any pesticides or herbicides, metals, halogenated organics, etc.; thus, these are constituents for which residues don’t need to be analyzed when determining UHCs. [November 20, 1997; 62 FR 62082–5, RO 12830, 13406, 14695] For nonhalogenated organics, although the facility can determine all such substances that are used as raw materials or feedstocks in the process, it may be unsure of particular constituents that may be present in residues as reaction by-products. These will be constituents for which the facility may have to test. This may be a one-time analysis, or there may be a need to periodically retest the residue stream (e.g., if the process or material inputs change).

EPA and state regulators don’t tend to second-guess generators’ conclusions regarding UHC identification, unless they (the regulators) have specific knowledge that the generator has overlooked.

The last sentence of §268.48(a) notes that compliance with the UTS will be established based on grab sampling, unless otherwise noted in the §268.48 table. Footnote 2 of that table specifies composite sampling for wastewater forms of wastes/residues. We have never seen any guidance on this subject, but our understanding is that compliance with treatment standards for D004–D011 wastewaters that contain UHCs would also be based on grab samples—to be consistent with §268.40(b).

Treatment facility LDR testing

Treatment facilities receive hazardous wastes from offsite generators and treat/recycle the wastes to meet appropriate LDR treatment standards. Residues from the treatment/recycling process must be tested prior to land disposal according to the treatment facility’s WAP to determine if treatment has achieved the required levels. If the standards have been achieved, the residues may be shipped to a land disposal facility or disposed of onsite if the facility is permitted for that activity. In either case, the treatment facility must certify and document that the waste meets LDR requirements. “For instance, if the waste analysis plan calls for testing of each batch of waste from an incineration process, these data must be submitted to the land disposal facility along with the certification statement.” [November 7, 1986; 51 FR 40597]

“Treatment facilities must periodically test the treated waste residue from prohibited wastes to determine whether it meets the…treatment standards and may not rely on materials and process knowledge to make this determination.” [November 20, 1997; 62 FR 62083] However, testing is not required for residues from wastes that must be treated by specified methods (i.e., those wastes that have treatment standards that are five-letter codes in the §268.40 table of treatment standards).

Treatment facilities have to be careful when using statistical sampling and analysis, which may be allowed by their WAPs, to establish compliance with LDR standards, because compliance with the treatment standards is not based on statistics. All portions of a waste must meet the treatment standard in order to be land disposed. That means every sample must meet the standard. According to EPA:

“[A] waste analysis plan cannot immunize land disposal of prohibited wastes [those that do not meet treatment standards], although such plans may be written to authorize types of sampling and monitoring different from those used to develop the treatment standards. If a waste analysis plan were to authorize a different mode of sampling or monitoring, there would need to be a demonstration that the plan (and the specific deviating feature) is adequate to assure compliance with Part 268…. This might require, for example, a demonstration of statistical equivalence between a composite sampling protocol and one based on grab sampling, or a demonstration of why monitoring for a subset of pollutants would assure compliance of those not monitored. (EPA repeats that enforcement of the rule is based on the treatment standard, not the facility’s waste analysis plan, so that enforcement officials would normally take grab samples and analyze for all constituents regulated by the applicable treatment standards.)” [Emphasis added.] [June 23, 1989; 54 FR 26606]

EPA/530/R-94/019 makes similar statements. Thus, a treatment facility that analyzes composite samples of nonwastewater treatment residues to show compliance with LDR standards (per its WAP) is at risk. If enforcement personnel take a grab sample that shows the treatment standard is not being met, the facility is in violation of the LDR regulations, regardless of whether the composite samples show compliance with the standard. “[A] facility remains strictly liable for meeting the treatment standards, so that if it disposes a waste that does not meet a treatment standard, it is in violation of the land disposal restrictions regulations.” [June 23, 1989; 54 FR 26606]

Disposal facility LDR testing

The disposal facility’s WAP must address the procedures for testing incoming wastes/treatment residues to ensure they conform to the certification made by the generator or treatment facility that the wastes/residues meet LDR standards. “The main objective of corroborative testing is to provide an independent verification that a waste meets the LDR treatment standard.” [November 20, 1997; 62 FR 62088]

“For each waste stream, the waste constituents regulated under the land disposal restrictions rule must be comprehensively analyzed. Although the frequency of testing will depend to some extent upon the variability of the waste stream, the agency recommends that a comprehensive analysis of each waste stream be performed at least annually by the generator or treater. When the comprehensive analysis is performed, however, it must contain data on all the applicable constituents in [the §268.40 treatment standards table] so that the [disposal facility] owner/operator will be able to determine whether the waste meets all applicable treatment standards. If the owner/operator of the land disposal facility does not receive this information in writing from the generator or treatment facility, he must perform the analysis to determine whether the waste meets the treatment standards according to the waste analysis plan.” [November 7, 1986; 51 FR 40598; see also RO 12943]

The agency noted in 1990 that “treatment and disposal facilities may generally rely on information provided to them by generators or treaters of the waste. However, treatment and disposal facilities must conduct periodic detailed physical and chemical analysis on their waste streams to assure that the appropriate Part 268 treatment standards are being met.” [June 1, 1990; 55 FR 22669]

While screening of each incoming shipment will usually be limited to relatively simple and rapid tests, the disposal facility has a responsibility to identify any wastes that exceed treatment standards. Some flexibility is allowed under §§264/265.13(c) as to the extent of analysis necessary for each shipment. [RO 12943]

However, EPA provided the following warnings:

“[A] disposal facility might violate the land disposal restrictions while at the same time comply with the provisions of its waste analysis plan…. In any case, enforcement of the land disposal restrictions is based on grab samples (except as described [for wastewaters]) and analysis of all constituents regulated by the applicable treatment standards, not on the facility’s waste analysis plan.” [June 1, 1990; 55 FR 22539]

“TSDFs are responsible for meeting the LDR treatment standards prior to land disposal for all regulated hazardous constituents and/or UHCs subject to the LDR requirements, regardless of the constituents identified by the generator.... [I]t only requires a single grab sample above the regulatory level for an enforcement official to determine noncompliance with the LDR treatment standards. If multiple grab samples are taken, each sample must meet the treatment standard prior to land disposal without exception. If one grab sample fails to meet any applicable treatment standard, the waste must be retreated and tested to ensure compliance with applicable LDR treatment standards prior to land disposal.” [EPA/530/R-12/001]

Generators and treatment facilities that conduct onsite disposal of hazardous wastes subject to LDR standards are also subject to disposal facility LDR testing requirements.

Documentation for LDR program characterization

The LDR program is quite specific as to what documentation (notifications/certifications) is required for generators and TSD facilities. Generators are allowed to use testing or knowledge to determine if their hazardous wastes meet LDR treatment standards; TSD facilities must test to meet this requirement. Required LDR program documentation can be found in:

  • The Generator Paperwork Requirements Table in §268.7(a)(4) and the generator documentation requirements section [§268.7(a)(8)], the Treatment Facility Paperwork Requirements Table in §268.7(b)(3), and the disposal facility paperwork requirements in §268.7(c);
  • Section 13.12 of this book; and
  • The waste analysis plan at TSD facilities and at generator sites that are required to have such a document.


Topic: RCRA-Empty Containers

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Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.