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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, 2017 Edition.

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©2017 McCoy and Associates, Inc. All rights reserved.

Waste Characterization

The first thing to remember with waste characterization is: Each individual generator of a solid waste is responsible for evaluating his/her own waste and making a hazardous waste determination. “A generator’s failure to properly analyze, label, and accumulate waste does not exempt the waste from regulation.” [RO 11424] The RCRA regulations place the burden on the generator to determine whether a solid waste is hazardous—EPA or your state will not make the determination for you. [December 18, 1978; 43 FR 58969, RO 11158, 11223, 11501, 11599, 11806]

Whenever facilities are trying to make a hazardous waste determination for a particular material, they should ask themselves the following four questions in order:

  1. Is it a solid waste?
  2. Is it exempt?
  3. Is it listed?
  4. Is it characteristic?

This four-question hierarchy comes right out of §262.11, which is the waste characterization section in the federal RCRA regulations. This section requires facilities to make a hazardous waste determination for each solid waste they generate. Each of these four questions is evaluated in more detail below.

Note that this discussion covers the federal waste characterization process only—states may have more stringent requirements. For example, some states have fewer exemptions and/or expanded hazardous waste listings and characteristics.

Is it a solid waste?

The answer to the first question is typically based on knowledge. If the material you’re managing is being abandoned or is inherently waste-like, the material is a solid waste. If it is being recycled, the material may be a solid waste. There are a few exclusions from the definition of solid waste for certain materials being recycled in certain ways. You claim these exclusions based on knowledge of the recycling process and the regulations. Finally, if your material is a waste military munition, it is likely to be a solid waste.

Is it exempt?

If you are managing a solid waste, the second question to ask [from §262.11(b)] is whether the material is excluded or exempt from the RCRA regulations under §261.4. Most of these exclusions and exemptions are largely based on application of knowledge enhanced by EPA guidance.

One exclusion to the RCRA regulations is the household hazardous waste exclusion in §261.4(b)(1). This exclusion allows solid wastes generated in households or other residential buildings (e.g., single and multiple residences, military base housing units, bunkhouses, crew quarters) to be disposed as ordinary household trash, whether or not they are listed or characteristic hazardous waste. No hazardous waste determination needs to be made for these residential wastes. [RO 11958]

For sources that are not exempt from the RCRA regulations, a hazardous waste determination must be made for all solid waste generated, even if the facility is a very small quantity generator (VSQG) subject to the reduced RCRA requirements in §262.14. VSQGs (e.g., retail stores that generate less than 100 kilograms of hazardous waste per month) are still required to make §262.11 determinations. [RO 11958, 14030]

Is it listed?

A solid waste that is not exempt from the RCRA regulations will have to be evaluated as to its hazardousness per the third and fourth questions. The regs require that generators first determine whether the solid waste is a listed waste. [§262.11(c)] This third step is accomplished by determining if the solid waste meets any of the listing descriptions in §§261.31–261.33.

The first list of hazardous wastes is the F-list, found in §261.31. This list identifies hazardous wastes from nonspecific sources and includes, among other things, spent solvents, heat treating and electroplating wastes, and dioxin wastes.

The K-list (in §261.32) is the second list of hazardous wastes. It identifies hazardous wastes from specific manufacturing processes. Wastes from specific sources within various industries, such as petroleum refining and chemical manufacturing, are included in this group of listed wastes.

The third and fourth lists of hazardous wastes are the P- and U-lists in §261.33. These lists identify unused commercial chemical products (and their spill residues) that are hazardous wastes when discarded.

Finally, some states regulate what we call “state-listed” wastes. These are wastes that are not on any of EPA’s F-, K-, P-, or U-lists, but they are considered listed hazardous wastes within that state’s borders. For example, some states regulate PCBs or used oil as listed wastes and have special state waste codes for those wastes.

Determining whether a solid waste is a listed waste is primarily a knowledge-based evaluation. Analytical testing alone, without information on a waste’s source, will not produce information that will conclusively indicate whether a given waste is a listed hazardous waste. [RO 14291]

A mixture of a listed waste and other solid waste, or a residue from treating a listed waste, is likely still a listed waste, regardless of the concentrations of hazardous constituents in the mixture or treatment residue. However, there are some exceptions to these mixture and derived-from rules.

Also, soil, ground water, and other environmental media, which are not solid wastes, may become contaminated with a listed waste. In this situation, EPA’s contained-in policy says media that contain a listed hazardous waste must be managed as if they are that listed waste. Again, there are some exceptions.

Similarly, debris (e.g., from building demolition activities) can also be contaminated with listed wastes. The contained-in policy has been codified for contaminated debris: debris that contains a listed hazardous waste must be managed as if it is that listed hazardous waste unless or until it no longer contains the hazardous waste.

Is it characteristic?

Finally, whether or not the solid waste is listed per the third question above, the generator must ask this fourth question. This is necessary, in part, to comply with the land disposal restrictions program in Part 268. [§262.11(d)]

There are four characteristics that a waste may exhibit: ignitability, corrosivity, reactivity, and/or toxicity. Note that even if it is known that a waste exhibits one characteristic, it still must be evaluated for the other three. [§261.20(b), RO 13570]

In addition to process wastes, contaminated environmental media (e.g., soil or ground water) and debris may also exhibit hazardous waste characteristics and thus be subject to RCRA.

The exciting part about determining if a solid waste exhibits a characteristic, however, is that §262.11(d) gives generators the option of using testing or knowledge for this purpose. That is, the determination may be made by 1) analyzing a representative sample of the waste, or 2) using knowledge of the waste itself and/or the process and materials that generated the waste.

We offer the following assistance on exactly who at a facility can make a hazardous waste determination, and how often a waste stream should be recharacterized.

Who makes the determination?

Section 262.11 states “A person who generates a solid waste…must make an accurate determination as to whether that waste is a hazardous waste….” A “person” is defined as “an individual, trust, firm, joint stock company, federal agency, corporation (including a government corporation), partnership, association, state, municipality, commission, political subdivision of a state, or any interstate body.” [§260.10]

According to EPA, a “person” is not limited to a specific individual. Therefore, any individual who is part of the “person” may make a hazardous waste determination. The hazardous waste determination is not limited to the individual who actually produces the solid waste. For example, Environmental, Health, and Safety (EH&S) personnel may make a hazardous waste determination for a waste produced by an individual operator, technician, or researcher, as long as the EH&S personnel and the producer are part of the same “person” (e.g., academic institution).

It is the “person’s” responsibility to ensure that the individuals within the organization who are making the hazardous waste determination obtain all the necessary information from whichever individuals within the organization have that data. For example, a hazardous waste determination in a laboratory setting would ideally be a collaborative effort between the individual researcher who produces the waste and EH&S personnel who may make the hazardous waste determination. That is, EH&S personnel making a hazardous waste determination should receive sufficiently accurate and detailed information about each waste and the process that generated it from the individual technician or researcher to ensure accurate waste identification. [RO 14618]

How often should I recharacterize?

In 1978, EPA proposed an annual reassessment of all solid wastes. Such a characterization frequency was never finalized:

“The deletion of the retesting requirements that were contained in the proposed regulations does not, of course, relieve a generator of solid waste from his continuing responsibility to know whether his wastes are hazardous. If there is a significant change in the materials, processes, or operation which indicate the waste has become hazardous, the generator must repeat the determination. EPA recognizes the potential burden that this places on certain manufacturers whose products, processes, and wastes change frequently, for example chemical specialty producers or other batch-type producers. This burden is created, however, by [the RCRA statute] which demands special attention and care for the handling and management of hazardous wastes. Those persons whose wastes are sometimes hazardous and sometimes nonhazardous have the same obligation as any other generator to ensure that all their hazardous wastes are managed in accordance with the requirements of Subtitle C and regulations implementing those statutory provisions.” [February 26, 1980; 45 FR 12727]

Although we have not seen concrete guidance from EPA, our general observations on this issue are that generators will have to recharacterize a particular solid waste stream when:

  • The raw materials, process, or operation that produces the waste changes;
  • The waste is sent to a different TSD facility for the first time;
  • New analytical data are required by the TSD facility with which you are doing business to recertify the waste profile (this is often every one or two years);
  • Questions arise during transportation or receipt of the waste at the designated facility (e.g., the waste received at the TSD facility does not match the waste profile or manifest);
  • Questions are raised through internal or external audits as to the regulatory status of the waste; or
  • EPA changes the RCRA waste identification/classification rules.

For complying with the treatment standards in the land disposal restrictions (LDR) program, EPA has given us guidance:

“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 [TSD facility] owner/operator will be able to determine whether the waste meets all applicable treatment standards.” [November 7, 1986; 51 FR 40598]

Although this guidance obviously recommends an annual assessment, keep in mind that it is for wastes that are subject to the LDR program. This guidance does not tell you specifically how often you should make a hazardous waste determination for each solid waste you generate at your facility.

Still, generating facilities that are proactive in terms of environmental compliance have told us they test everything once a year. If something changed in your waste, making hazardous what used to be nonhazardous, and you don’t know about it, you’re out of compliance and subject to enforcement. The onus is on the generator to be right in his/her hazardous waste determinations, and a good way of staying right is to test or otherwise evaluate your waste streams every year.

Permitted TSD facilities must have a waste analysis plan (WAP), which is approved at the time the permit is issued. Under the federal RCRA regs, generators are required to have a WAP only if they are treating hazardous waste in a 90- or 180-day accumulation unit for the purpose of meeting LDR treatment standards. One of the WAP components is the frequency with which the facility will analyze or reanalyze all wastes and treatment residues. [§§264/265.13(b)(4)]


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©2017 McCoy and Associates, Inc. All rights reserved.

Disclaimer

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.