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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.

Spills and Spill Residues

Spills happen despite the best planning, employee training, and plant operations. In many situations, spill residues are hazardous waste that must be managed in accordance with the RCRA regulations. This article offers EPA guidance on several topics associated with spills: 1) do we have to clean up spills?, 2) spill response, 3) spills of characteristic wastes/products, 4) spills of listed wastes/products, and 5) spills of oil or used oil.

Do we have to clean up spills?

EPA requires all spills of hazardous waste to be addressed promptly to minimize hazards to human health and the environment. If cleanup does not start promptly, EPA will consider the spill to be a hazardous waste disposal site subject to RCRA permitting requirements and/or enforcement action. [RO 12748, 13296, 14547, 14650] Where do the regulations say that we have to clean up spills? It’s hard to find—we have to come at this from a little different direction.

If we spill a material and don’t clean it up, that material is considered to be abandoned. [RO 14650] Abandoned materials, as defined in §261.2(b), are one of the most common types of solid wastes. So, the abandoned spill material would be a solid waste, and, if that material meets the definition of a hazardous waste, “a spill of hazardous material to soil or ground water is normally a simple act of disposal.” [June 1, 1990; 55 FR 22671] To avoid having to comply with the numerous, expensive requirements associated with operating a hazardous waste disposal area, we must clean up spills.

Spills of hazardous waste versus spills of products

If what we spill already meets the definition of a hazardous waste (i.e., a characteristic or listed waste), it makes sense that we have to clean it up and likely manage the spill residues as hazardous per Table 1. But what if we spill a product? Do we have to worry about that spill under RCRA? We do. The reason is that spilled product is not being used for its intended purpose; if we leave it in the soil, for example, it’s abandoned as noted above. Therefore, it is a solid (and potentially hazardous) waste.

Table 1

If we clean up the spilled product and can still use it for its intended purpose, it never became a solid waste and therefore avoids regulation as a hazardous waste. If the spilled product that we clean up is sent for reclamation, the cleanup residue can be considered an off-specification commercial chemical product and is not solid (or hazardous) waste via Table 1 in §261.2(c)—see RO 14650. Conversely, if we clean up a spilled product and decide to dispose the cleanup residue, it is a solid waste like any other, and a hazardous waste determination must be made.

Bottom line: Spilled material that is a hazardous waste or becomes a hazardous waste as a result of the spill must be cleaned up and managed under Subtitle C.

Spill response

If a spill occurs, we must make an “immediate response” and begin cleanup activities. Here’s EPA’s guidance on the topic:

“EPA has not established a definition of what constitutes an immediate response to a spill situation. The time frames and extent of immediate response must be judged by persons responding to discharges on an individual basis. Extended responses which are not judged to be immediate in nature may result in: 1) a modification to the facility’s contingency plan, 2) an enforcement action for an inadequate contingency plan or permit violation, or 3) enforcement action for illegal disposal.” [RO 12748]

EPA has defined “immediate” for the purpose of cleaning up incidental and infrequent wood preservative drippage (F032) at wood preserving facilities:

“[T]he agency intends, absent extenuating circumstances, that owners/operators respond to storage yard drippage that occurs when a facility is in operation within one consecutive working day. A facility is considered in operation on any day in which it is treating wood. For facilities which are not in operation during a storage yard drippage event, the agency expects the facility to clean up drippage within 72 hours of occurrence. EPA recognizes that the term ‘immediate’ must take into account the nature of the incident as well as facility-specific factors.” [December 24, 1992; 57 FR 61494]

Generator requirements

Large quantity generators that accumulate hazardous waste onsite for 90 days or less without a permit must develop a contingency plan for their hazardous waste activities. [§262.260] This plan must address immediate actions that facility personnel will take in response to releases of hazardous waste. Small quantity generators don’t have to have a formal contingency plan, but they must comply with the emergency response requirements in §262.16(b)(9).

TSD facility requirements

Sections 264.51 and 265.51 require owners/operators of TSD facilities to have contingency plans in place. As with large quantity generators, the plans must describe immediate actions that facility personnel will take in response to any unplanned release of hazardous waste or hazardous waste constituents. The contingency plan will be incorporated into the facility’s permit.

Transporter requirements

Under §263.30, transporters are required to take immediate action to protect human health and the environment if a spill of hazardous waste occurs. These actions may include notifying the local authorities, diking the discharge area, etc. Furthermore, transporters must clean up any hazardous wastes so that the discharge no longer presents a hazard to human health and the environment. [§263.31] DOT also has regulations with which transporters must comply when responding to a spill of hazardous waste.

An authorized federal, state, or local official on the scene may waive the EPA ID number and manifest requirements for generators and transporters involved in immediate hazardous waste removal actions following a spill or leak during transportation. [§263.30(b)] Alternatively, EPA regions or authorized states can issue provisional EPA ID numbers to persons responding to a spill. This supposedly can be done over the phone. [RO 12016]

The immediate response spill containment or treatment activities are exempt from RCRA permitting and substantive RCRA standards. [November 19, 1980; 45 FR 76629] When the emergency is over, all applicable RCRA hazardous waste management provisions once again apply to the generator’s/transporter’s activities. For example, if the transporter has generated hazardous waste, he/she must comply with Part 262 requirements when the immediate actions are over.

Cleanup levels

The RCRA regulations do not address hazardous waste spills to any significant degree, and they certainly do not identify cleanup levels that must be achieved. All the regs say is that large quantity generators [§262.260] and TSD facilities are held to the standard of minimizing hazards to human health or the environment. Additionally, transporters must clean up any spilled hazardous wastes so that the discharge no longer presents a hazard to human health and the environment. [§263.31]

EPA’s philosophy is that different cleanup levels will be appropriate in different situations. As a result, cleanup levels are most appropriately set on a situation-specific basis. However, some states may require specific cleanup standards to be achieved. [RO 11848]

Exemption for immediate response treatment and containment activities

EPA considers that an unremediated hazardous waste spill is essentially unpermitted disposal. However, the agency recognizes that requiring RCRA permits for spill cleanups would hinder prompt response actions. As a result, EPA allows immediate spill response actions to be performed without a RCRA permit. [§270.1(c)(3)] Treatment and containment activities conducted in immediate response to hazardous waste discharges and spills (including the use of emergency structures, such as tanks used for emergency secondary containment) are also exempt from Part 264 or 265 standards (except for the preparedness and prevention and contingency plan requirements). [§§264.1(g)(8) and 265.1(c)(11), RO 12298, 12748, 14031]

According to EPA:

“To qualify for the exemption, a unit must be intended exclusively for immediate response to discharges of hazardous wastes, such as burst pipes, ruptured containers or tanks, breached dikes, and the like. Structures used for responding to discharge events which occur periodically or repeatedly, or in which containment or treatment extends beyond the immediate response period, do not qualify for the exemption.” [RO 12298]

For example, an owner/operator responding to a discharge might excavate soil contaminated with spilled hazardous waste and store it temporarily in containers prior to the removal of the material offsite. The container storage area would not be subject to Part 264 or 265 standards. [RO 13296] In another example, a tank is used to contain spilled residue from a truck loading/unloading area. In this case, the exemption from Part 264/265, Subpart J tank standards would apply to the tank only if the owner/operator could demonstrate that spills were “extremely rare and unpredictable events.” [RO 12298] Furthermore, EPA stresses that “[t]reatment and containment activities conducted after the initial response period are subject to [Part 264 or 265] standards. A facility may qualify for an emergency permit under §270.61 for such treatment and containment activities occurring after the immediate response period.” [RO 12748; see also RO 14031]

As another example, a tank car of liquid hazardous waste ruptures at a generator’s site, and the waste spills on the ground. The facility immediately builds an emergency dike to contain the spilled waste and then pumps the liquid into drums. The drums of hazardous waste remain onsite for several weeks before being shipped offsite to an incinerator. EPA’s evaluation of this scenario indicates that the construction and operation of the dike are not subject to RCRA standards or permitting, since it was an immediate response. However, once the liquid was contained, the immediate response was over, and the subsequent storage in drums is subject to 90/180/270-day accumulation provisions specified in §§262.16 or 262.17. If the spilled waste and/or contaminated soil in the dike are treated as part of the immediate cleanup, such treatment would not be subject to RCRA regulation. However, if the treatment occurred beyond the immediate response (a judgment call between the facility and the state), an emergency permit would be required unless the generator treated the waste in a way that is exempt from permitting (e.g., in a 90-day unit). [November 19, 1980; 45 FR 76629]

Any tank that is not eligible for the §264.1(g)(8) or 265.1(c)(11) immediate response exemption is subject to the hazardous waste tank standards. Consequently, if the spilled material is accumulated in the tank for less than 90 days, only the generator standards under §262.17 would apply. However, if the accumulation time exceeds 90 days, the storage facility standards under Part 264 or 265 would apply. Any tank that will be used on a predictable basis for hazardous waste storage at a TSD facility must also be addressed in the facility’s closure plan. [RO 12291]

Spills of characteristic wastes/products

If a characteristic waste is released into the environment, the spill must be cleaned up. Additionally, the responsible party needs to determine (by testing or knowledge) if the excavated contaminated media exhibit a hazardous waste characteristic. If they do, they must be managed as hazardous waste until they no longer exhibit that characteristic. An example would be a spill of chromium-containing wastewater onto soil, resulting in contaminated soil that fails the TCLP for chromium. Such soil would have to be excavated and managed as D007 hazardous waste.

What about a leak or spill of a characteristic product that becomes a solid and hazardous waste as a result of the spill? For example, a tanker carrying gasoline is involved in an accident, spilling 500 gallons of gas onto the roadside. Most of the gas soaks into the soil, causing it to exhibit the toxicity characteristic for benzene. Recovering the gasoline is unlikely; therefore, the contaminated soil must be managed as a RCRA hazardous waste when disposed. [RO 12489]

EPA’s latest discussion of how the contained-in policy relates to characteristic wastes corroborates the two paragraphs above. In the case of media that exhibit a characteristic of hazardous waste, the media are considered to contain hazardous waste as long as they exhibit a characteristic. Once the characteristic is eliminated (e.g., through treatment), the media are no longer considered to contain hazardous waste. [RO 14291]

If a product that exhibits a characteristic can be captured and recycled to a process or to a reclamation unit, the captured material is usually not a solid waste at all. [See Table 1 in §261.2(c) and Table 1 in this article.] It is a product, although it might be an off-specification product that needs to be reclaimed before use. Either way, the product is not subject to RCRA if it is put to beneficial use.

For example, a bulk oil storage terminal has a spill of characteristic product. The facility is able to capture the spilled material and return it to a refinery or other legitimate fuel production operation. In this situation, the spilled product is not a solid waste when reused. However, “mere assertion of an intent to recycle a commercial product spill does not convert the spill into a nonwaste. There must be objective indicia that recycling is reasonable, and that it will occur in a timely manner.” [July 28, 1994; 59 FR 38539]

A product, which contains two active ingredients, toluene and benzene, spills on the ground. How is the spill residue regulated under RCRA?

If a product with more than one active ingredient is spilled, it will not be classified as a P- or U-listed spill residue per §261.33(d). Therefore, the spill residue will be hazardous only by characteristic. If the soil mixed with the spilled product exhibits a characteristic, then the spill residue is a RCRA hazardous waste. If the soil mixture does not exhibit a characteristic of hazardous waste, RCRA is not applicable. (CERCLA reporting may be required if the reportable quantity is exceeded, since benzene and toluene are both hazardous substances.) [RO 12489]

Spills of listed wastes/products

Spills of listed hazardous waste/product can be broken into two major categories: 1) contamination resulting from spills of F- and K-wastes, and 2) contamination resulting from spills of commercial chemical products on the P- and U-lists.

Spills of F- and K-wastes

Spills of F- and K-wastes into the environment are regulated per the contained-in policy. Environmental media that contain an F- or K-waste must be managed as if they are that F- or K-waste. The media are subject to hazardous waste management until they are decontaminated such that they no longer contain the listed waste.

Leachate from spill-contaminated soil

Rainwater that percolates through soils contaminated with spills of several different listed hazardous wastes may qualify as multisource leachate (F039). EPA has determined that “water that has percolated through soils contaminated with more than one listed hazardous waste for which Part 268 treatment standards are in effect is normally F039.” [RO 13509]

Spills of commercial chemical products (P- and U-wastes)

Any residue or contaminated soil, water, or debris resulting from cleanup of spills of any commercial chemical product, manufacturing chemical intermediate, or off-specification products listed in §261.33(e) and (f) (i.e., the P- and U-lists) is a RCRA hazardous waste when it is discarded or intended to be discarded. [§261.33(d)] In other words, we really don’t need to apply the contained-in policy to residues resulting from spills of products on the P- and U-lists; they are P- and U-wastes by regulation.

The §261.33(d) language applies to all P- and U-spill residues that are discarded or intended to be discarded, regardless of where the spill occurs (e.g., onto land, into water, within a wholly contained building). [RO 13335] On the other hand, if a spill residue can be returned to a process or otherwise put to beneficial use, it would not be a listed hazardous waste—it would be a product. However, the burden of proof is on the generator to show that legitimate recycling will take place. [RO 13743]

If P- or U-spill residues are decontaminated such that they no longer meet the hazardous waste listing (i.e., they no longer contain the listed waste), they would no longer be regulated as a listed hazardous waste. [RO 13732] Another possibility is that a P- or U-listed product is spilled onto environmental media such as soil, but the resulting contaminant concentrations are below state-determined remedial levels. If the state is authorized for the base RCRA program, the state can make a no-longer-contains determination for the contaminated soil, and it would not be subject to RCRA hazardous waste management requirements before or during any excavations that might occur. [RO 13568]

Examples of spills of commercial chemical products are given below.

A thermometer in use at a weather observation station is blown off its hook and breaks, leaking mercury onto the ground. Is the contaminated soil a hazardous waste?

Unused mercury is a listed waste (U151) when discarded. However, the P- and U-lists of discarded commercial chemical products and spill residues apply only to unused materials. Since the thermometer (and contained mercury) in this case has been used, the U151 listing does not apply. However, if the soil exhibits the toxicity characteristic for mercury, the soil would need to be managed as a D009 hazardous waste. [RO 13372]

Overapplication of the pesticide heptachlor at a residence caused a swimming pool and the surrounding soil to become contaminated. When disposed, are the pool water and soil P059?

No. Under §261.33, listed commercial chemical products are not hazardous wastes when they are applied to the land if that is their normal manner of use. As a result, soil and/or surface water that are contaminated as a result of overapplication of these products during their normal manner of use are not considered hazardous wastes (unless the materials exhibit a hazardous waste characteristic). However, if a listed commercial chemical product is spilled during its normal manner of use, this constitutes disposal and the hazardous waste regulations will apply to cleanup residues. Since the contamination of the pool water and soil resulted from the normal use of the pesticide as a product, instead of from its disposal, they would not be considered hazardous waste unless characteristic. [RO 11291, 12357]

A warehouse was used to store pesticides that are on the P-list. Wipe tests of the floor and walls in the building confirm the presence of these chemicals. If the residues resulted from spills of the P-chemicals, must they be managed as hazardous wastes?

The spilled materials appear to have been abandoned by accumulating them in the warehouse rather than disposing them elsewhere. They may also have been abandoned by essentially being disposed within the building itself. This makes them solid wastes, and if they were listed P- or U-chemicals, the residues would also be hazardous wastes. If the spills occurred after November 19, 1980 (the effective date of the RCRA regulations), “treatment and containment of spills (except in immediate response to spills) must comply with applicable Part 265 requirements. Since it appears that this is not an immediate response situation, the facility would be subject to an enforcement action for treating, storing, or disposing of hazardous waste without interim status or a permit, and could be required to take appropriate action to clean up the residues.” [RO 11161]

A facility bakes used railroad ties to recover creosote, and then it uses the recovered creosote as a wood preservative without further processing. The reclaimed creosote is again a commercial chemical product (i.e., the label on a drum of this material would say “Creosote”). What would be the regulatory status of the recovered creosote if it were subsequently spilled?

This spilled material would be hazardous waste U051. [RO 13572]

Did we spill a listed waste or not?

Determining the correct hazardous waste classification (if any) for listed spill residues (F-, K-, P-, or U-listed) depends on the regulatory status of the material before it was spilled. For example, consider a spill residue consisting of 15% tetrachloroethylene and 85% clay/dirt. If the solvent was a discarded commercial chemical product, manufacturing chemical intermediate, or off-specification commercial chemical product before it was spilled, the spill residue would be classified as a U210 waste. However, if the tetrachloroethylene was a nondegreasing spent solvent before the spill occurred, the waste would be classified as F002 via the contained-in policy. [RO 12906, 14194]

During cleanup of an industrial facility, the owner/operator discovers that some of the soil onsite is contaminated with toluene. The facility’s environmental manager notes that toluene is listed in Appendix VIII to Part 261 of the RCRA regulations (which is a list of “hazardous constituents”) and, therefore, recommends that the soil be managed as a RCRA hazardous waste. Is the environmental manager correct?

Maybe. Soil contaminated with toluene is not automatically a hazardous waste based solely on the fact that the chemical is listed in Appendix VIII. The soil would only be considered a hazardous waste if 1) the contamination was caused by a spill of one of the wastes listed in §261.31, 261.32, or 261.33; or 2) the soil exhibits one of the hazardous waste characteristics. [RO 12171, 12392] Regulated entities are not meant to use Appendix VIII to determine whether a waste (or spill residue) is hazardous. That appendix is solely for use by EPA in evaluating whether to list a waste as hazardous. [RO 11051, 11144, 12014, 12296, 13290]

The mere presence of contaminants in soil does not automatically make the soil a hazardous waste. The generator or owner/operator must make a good-faith effort to find out if a material is (or has been contaminated with) a listed waste. If documentation on the source of contamination is unavailable or inconclusive, EPA allows the facility to assume that the material is not a listed hazardous waste. Consequently, if the material does not exhibit a hazardous waste characteristic, the RCRA hazardous waste regulations do not apply. This has been EPA’s long-standing policy, which was reaffirmed in RO 14291.

Spills of oil or used oil

Spills of oil and used oil are common in industry. How are they regulated under RCRA?

Oil spills

RCRA Section 7003 gives EPA the authority to require cleanup in situations where human health and/or the environment are imminently and substantially endangered. Under the agency’s interpretation of this statutory provision, it has the authority to use Section 7003 to compel cleanup of oil spills, regardless of whether or not the spilled material meets the definition of a characteristic waste (e.g., via the toxicity characteristic for benzene). See Case Study 1. Additional cleanup authorities are available under the Oil Pollution Act and the Clean Water Act. [RO 13513]

Case Study 1

Used oil spills

As set forth in §279.22(d), used oil generators must take the following response actions when used oil from aboveground tanks and containers is spilled:

  • Stop the release,
  • Contain the released used oil,
  • Clean up and properly manage the spilled used oil and other materials, and
  • Repair or replace any leaking used oil storage tanks or containers before putting them back in service.

These actions must be taken only if a release to the environment occurs. EPA has stipulated that releases to the environment do not include “releases within contained areas such as concrete floors or impervious containment areas, unless the releases go beyond the contained areas.” [September 10, 1992; 57 FR 41586] Consequently, a spill from an aboveground tank into the tank’s containment structure would not be considered a release to the environment and, therefore, would not be subject to the §279.22(d) response action requirements. However, used oil handlers “have an obligation to clean up used oil spills or leaks onto containment areas before the used oil reaches the environment. Such cleanup operations prevent the potential contamination of unprotected soils near storage and work areas. If a release of used oil goes beyond a containment pad and into the environment, then the response-to-releases requirements in §279.22(d) apply.” [RO 14339]

Releases of used oil from underground storage tanks are subject to the Part 280, Subpart F corrective action requirements. [§279.22]


Topic: Applicability of the Subpart BB Regulations

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


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.