March 13, 2013

Hazardous Waste Determination May Extend Beyond Initial Point of Generation

Sometimes a waste is generated that undergoes a physical or chemical change after the original point of generation, causing what was originally a nonhazardous waste to become hazardous. For example, some printing shops generate a solvent plus water wash. At the point of generation, the wash is well-mixed, homogeneous, not listed, and not characteristic. After some time, the waste separates into two phases: organic solvent and water. When this separation happens, the solvent phase exhibits the characteristic of ignitability, requiring a D001 code. EPA was asked “when should the hazardous waste determination be made in this situation?” The agency replied in RO 14834:

“[A] generator’s responsibility to make a hazardous waste determination may continue beyond the determination made at the initial point of generation. In the case of a nonhazardous waste that may, at some point in the future, exhibit a hazardous waste characteristic or meet a hazardous waste listing description, there is an ongoing responsibility to monitor and reassess if changes occur that may cause the waste to become hazardous.”

Additionally, EPA was asked if a waste undergoes phase separation prior to shipment, may the generator remove the water phase and use testing or knowledge to determine if it is nonhazardous? How would the decanting of the water phase be regulated under RCRA?

The agency’s response was that such physical separation or decanting of a water phase from a waste stream would be considered treatment under the RCRA regulations. However, as previously discussed in RO 11885, generators may treat their own hazardous wastes without a permit in 90/180-day accumulation tanks or containers that are managed in compliance with the provisions in §262.34. Of course, state regulations may be more stringent. EPA also affirmed that the generator may use either testing or knowledge to determine if the separated water phase exhibits any characteristics.


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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.