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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.

Household Hazardous Waste Exclusion

Under §261.4(b)(1), the 1.6 million tons of household hazardous waste generated annually in the United States is excluded from the RCRA Subtitle C regulations. The term household waste refers to any garbage, trash, and other waste from single and multiple residences and other residential units such as hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas. In order for household hazardous waste to be excluded from regulation, it must meet two criteria: 1) the waste has to be generated by individuals on the premises of a temporary or permanent residence, and 2) the waste must be composed primarily of materials found in the waste generated by consumers in their homes. [November 13, 1984; 49 FR 44978]

For example, wastes generated from military base housing are excluded. [RO 11958, 13225] Wastes generated at hotels from hotel guests, room cleaning, or pesticide spraying in rooms are also excluded under the household exclusion; however, dry cleaning wastes from the hotel are not excluded because the spent solvents from such operations are not similar to wastes typically produced by consumers in their homes. [RO 12624, 13736] Household-type wastes generated at commercial facilities and office buildings are also not covered by the household exclusion [RO 11347], because they do not meet the first criterion above. Similarly, restaurants do not serve as temporary or permanent residences for individuals, and so wastes generated from restaurants will not qualify for the household waste exclusion. [RO 13744] EPA noted that wastes generated from retail stores and shopping centers are also not excluded. [49 FR 44978, RO 11958] Finally, hospitals, nursing homes, and day care centers are not considered generators of household hazardous wastes; although these facilities are residential in some ways, they generate amounts and types of wastes that are significantly different from wastes generated by consumers in their homes. [March 24, 1989; 54 FR 12339, RO 11958]

Although commercial facilities, office buildings, restaurants, retail stores, shopping centers, hospitals, nursing homes, and day care centers do not produce wastes that qualify for the household hazardous waste exclusion, hazardous wastes generated at these facilities may be exempt from most RCRA Subtitle C regulation as wastes generated by conditionally exempt small quantity generators (CESQGs). Hazardous wastes generated by CESQGs are subject only to the limited regulations in §261.5.

Where things get really complicated is when household products are taken to commercial facilities, office buildings, retail stores, etc. where they become wastes. Now what? In RO 13480, EPA noted that nickel-cadmium batteries removed from products/appliances by consumers in their homes are within the exclusion and are excluded from the hazardous waste regulations when disposed, while such batteries removed by service personnel from products/appliances that have been taken to service centers by consumers are not within the exclusion. The agency stated in RO 14084 “if the waste comes from a household, it would not be subject to the hazardous waste regulations even if it were later discarded on the premises of a business.” The guidance in RO 11958 indicates that retailers may take advantage of the household waste exclusion for the management of products (that are known to be hazardous waste) returned from households. The conclusion that can be drawn from these three pieces of guidance is as follows: if the household material was a product when brought to the commercial facility, office building, retail store, etc. (such as the household appliance being repaired at a service center), then the household waste exclusion is not applicable to wastes (such as the batteries) that are generated from this material by the commercial facility; however, if the household material was a waste when brought to the commercial facility, office building, retail store, etc., the household hazardous waste exclusion has already kicked in and continues to apply to that material when disposed at the commercial facility.

Note that §261.4(b)(1) excludes household wastes from hazardous waste management requirements even when accumulated in quantities that would otherwise trigger regulation under RCRA Subtitle C. [RO 11958, 12547]

EPA has developed a website discussing household hazardous waste management options and collections facilities at http://www.epa.gov/hw/household-hazardous-waste-hhw.

Types of waste excluded

The exclusion applies to all household hazardous wastes, including electronics, appliances, medicinal drugs and ointments, waste oils, antifreeze, pesticides and other lawn and garden products, paint and paint thinner, batteries (including lead-acid batteries), fluorescent lamps, thermostats, spent filters from filtering water, aerosol cans, and cleaning fluids/solvents. [May 19, 1980; 45 FR 33099, June 12, 2002; 67 FR 40511, RO 11508, 11653, 11678, 11693, 11756, 11780, 11897, 12688, 13189, 13432, 13521] Contaminated media and debris generated from residential heating oil tanks [February 12, 1993; 58 FR 8505, RO 14701] and leaks from those tanks [RO 11563] are also excluded.

Unused flameless ration heaters (FRHs) disposed by individual soldiers in the field or at military installations are eligible for the household hazardous waste exclusion. This exclusion would also apply where FRHs are collected from a group of soldiers for disposal, as long the FRHs were initially issued to the soldiers for individual use in a permanent or temporary residential setting. [RO 14772, 14774]

Hazardous waste generated at a household by a person other than the homeowner (e.g., a contractor) is also excluded, provided that the waste is generated as part of daily living (e.g., routine residential maintenance). [RO 11897, 13358, 14673] Examples of such excluded waste include medical waste generated in private homes by a health care provider, even when the waste is removed from the home and transported to a physician’s place of business. [54 FR 12339, RO 13277]

Conversely, natural gas regulators at residences are installed, replaced, and collected by utilities and gas suppliers—not by consumers in the home in the course of daily living. Therefore, EPA determined that natural gas regulators do not meet the two criteria discussed at the beginning of this article and that, if they exhibit the toxicity characteristic for lead, they must be managed as hazardous waste. [RO 14115]

EPA originally determined that the household hazardous waste exclusion did not apply to wastes such as debris produced during construction, renovation, or demolition of houses or other residences, because these wastes are not similar to those generated by a consumer in the home in the course of daily living. [49 FR 44978, RO 11897] However, the agency more recently clarified that the exclusion does apply to lead-based paint waste generated as a result of renovation, remodeling, or abatement actions by residents of households, including their contractors. Excluded materials would include doors, window frames, painted woodwork, paint chips, dust, and sludges from these activities. [October 23, 2001; 66 FR 53537, RO 14459, 14673]

EPA does not consider RCRA to apply to contaminated human remains resulting from a chemical, biological, radiological, or nuclear event. Similarly, personal effects would likely be excluded from the hazardous waste regulations via the household hazardous waste exclusion. [RO 14811]

Exclusion may be lost if mixed with other wastes

If household hazardous waste is mixed with regulated hazardous wastes (i.e., hazardous waste generated by small or large quantity generators), the regulatory status of the mixture is subject to the hazardous waste mixture rule. In general, such mixtures will continue to be hazardous and subject to regulation under RCRA Subtitle C. [45 FR 33099, RO 12547]

Mixtures of household hazardous waste and CESQG hazardous waste are subject to the CESQG waste management standards of §261.5. [§261.5(h), RO 11377, 12547] However, §261.5(h) notes that, if the quantity of the mixture exceeds the §261.5 quantity limitations, then the mixture becomes subject to either small or large quantity generator standards if the mixture exhibits a characteristic. This put facilities collecting both household hazardous waste and CESQG waste in a quandary. EPA tried to ease this situation in 1992 by stating:

“[I]t is our interpretation that §261.5(h) applies to the CESQ generator and not to the subsequent managers of the CESQG waste described in §261.5(f)(3) and (g)(3). Programs and facilities receiving and mixing CESQG waste and [household hazardous waste] are subject to requirements imposed by states through the states’ municipal or industrial waste permit, license, or registration programs, but are not subject to the full hazardous waste Subtitle C regulations, even if the mixed CESQG and household hazardous wastes were to exhibit a characteristic of a hazardous waste. The collection facility does not become the generator of the mixture merely by mixing CESQG waste with nonhazardous waste, and regardless of the quantity of the mixture of wastes, is not subject to the Part 262 generator regulations. By contrast, CESQ generators that mix hazardous and nonhazardous waste and whose resultant mixtures exceed the §261.5 quantity limitations and exhibit a characteristic, are no longer conditionally exempt and are subject to the applicable Part 262 hazardous waste generator regulations.” [RO 11681]

Management/treatment of household hazardous wastes

Per the language of §261.4(b)(1), the collection, transportation, storage, treatment, disposal, and recovery or reuse of household hazardous wastes are not subject to Parts 262 through 270. “Because this exclusion attaches at the point of generation (i.e., the household) and continues to apply throughout the waste management cycle, household [wastes] collected in municipal recycling programs and subsequently managed in recycling programs continue to be excluded from the hazardous waste management regulations.” [RO 11780] The household waste exclusion applies from collection through final disposition, including treatment and resultant residues. Thus, for example, landfill gas condensate derived from a fill that contains household waste exclusively is not a hazardous waste. [RO 12362]

However, household wastes are subject to federal, state, and local requirements concerning management of solid waste, including applicable RCRA Subtitle D requirements. [45 FR 33099, RO 11314, 11377] For example, household hazardous waste can be disposed in a municipal solid waste landfill or burned in a municipal solid waste combustor. [RO 14459] Although nonhazardous waste management is legal, EPA recommends that household hazardous waste be managed in the following order: 1) reused or recycled as much as possible, 2) treated in a hazardous waste treatment facility, or 3) disposed in a hazardous waste landfill. [RO 11377]

A recently published guidance document is available in which EPA recommends the incineration of pharmaceuticals collected from households during take-back events, mail-back events, or other collection programs. [RO 14833] The agency recommends that these household pharmaceuticals be combusted in a RCRA-permitted incinerator or cement kiln, or at the least, in a unit that meets EPA’s large or small municipal waste combustor standards. Such units would not only be protective of the environment, but they could also meet the Drug Enforcement Administration’s goal of preventing diversion of controlled substances.

Household hazardous wastes burned in resource recovery facilities

Household waste is often burned in resource recovery facilities to recover energy (these facilities are also often called waste-to-energy facilities). The household hazardous waste exclusion explicitly exempts such facilities from hazardous waste management regulations as long as such facilities receive and burn only 1) household waste, and 2) solid waste from commercial or industrial sources that does not contain hazardous waste. But what about the ash generated from these facilities?

EPA’s initial assessment was that since “household waste is excluded in all phases of its management, residues remaining after treatment (e.g., incineration, thermal treatment) are not subject to regulation as hazardous waste.” [45 FR 33099] This determination was challenged, however, and in a 1994 Supreme Court decision (City of Chicago vs. Environmental Defense Fund, 511 U.S. 328), the court found that ash generated at resource recovery facilities burning household wastes and nonhazardous commercial wastes is not exempt from the hazardous waste requirements of RCRA Subtitle C if it exhibits a hazardous waste characteristic.

Because the court did not specifically determine the point at which regulation of the ash must begin, EPA issued an interpretation stating that RCRA would first impose hazardous waste regulation at the point the ash leaves the “resource recovery facility,” defined as the combustion building (including connected air pollution control equipment). Consequently, the point at which a hazardous waste determination must be made is the point at which ash exits the combustion building following the combustion and air pollution control processes. [February 3, 1995; 60 FR 6666, RO 11901]

Importing household hazardous wastes

Because imported waste is subject to the applicable domestic laws and regulations of the United States once it enters U.S. jurisdiction, imported household hazardous waste is excluded from the definition of hazardous waste in the same way as domestically generated household waste. U.S. importers may want to keep records of the foreign exporter and the origin of any imported household waste in case questions arise as to its regulatory status once it enters the United States. [RO 14308]


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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.