October 10, 2013

Checklist for Evaluating the Regulatory Status of Commercial Chemical Products

EPA has issued guidance regarding the regulatory status of commercial chemical products (CCPs) as possible solid and hazardous wastes. [RO 14837] The issue triggering this guidance is the question frequently raised during inspections of whether a material is a product that is being stored before use, or a waste that is being stored in lieu of proper treatment and disposal.

The new guidance does two things:

It reiterates a CCP is not solid waste if it is being appropriately stored or managed for use, legitimately recycled, or appropriately stored or managed for legitimate reclamation. The agency specifically notes CCPs are not solid waste when accumulated before legitimate recycling [i.e., speculative accumulation does not apply, as indicated by §261.2(c)(4) and the dash at the intersection of CCPs and speculative accumulation in Table 1 in §261.2(c)]. A CCP will be a solid and possibly hazardous waste if it is abandoned by being accumulated or stored in lieu of being disposed, burned, or incinerated. RO 14837 is consistent with existing guidance on this topic (see 50 FR 636; January 4, 1985, RO 13528, and RO 13755).
It provides a checklist designed to assist regulators and the regulated community in applying this regulatory structure to specific situations. The checklist prompts the user to obtain information that can be used to determine the regulatory status of CCPs based on observations made during an inspection. The checklist is divided into three sections:

Section 1 focuses on whether the CCP is being managed as a valuable commodity,
Section 2 focuses on whether the CCP is being used in the production of products or in support of production operations, and
Section 3 focuses on whether the CCP is a product and if there is a market or potential market for it.

This guidance provides some clarity on a subject that has been quite gray in the past.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental 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.