Exclusion vs exemption

When you come across terms such as “excluded” or “exempt” in federal or state regulations, have you wondered what do they mean exactly?

Something is being excluded from being regulated by a specific law because it is being regulated elsewhere by a different law.  For example, nuclear wastes are excluded from the Resource Conservation and Recovery Act (RCRA) because they are regulated by the Nuclear regulatory Commission. Domestic sewage is excluded from RCRA because it si covered under the Clean Water Act.

Exemption is a bit different. Something is exempt from being regulated or it is being less regulated because it meets certain conditions. For example, used oil is exempt from being regulated FULLY as a hazardous waste if it is being recycled. Universal wastes is another example. they are basically hazardous wastes but they are exempt from the full force of RCRA if they are recycled.

Satellite Accumulation Points

40 CFR 262.34(c) allows hazardous waste generators to accumulate waste in a 55-gallon container at or near the place of generation. This is known as the satellite accumulation point (SAP) Once the container is full, the generator has 3 days to move it to the central storage area – at which time the usual (90 days or 180 days) accumulation time starts. By the way, you cannot store waste in a SAP for longer than one year in California.

While it is permissble to have more than one SAP if you generate wastes at different locations, it is illegal for waste generator to move waste from one  SAP to another. Doing so would defeat the purpose of having SAPs in the first place – reduce frequencies of waste movement within the plant.

Analytical samples exemption

If you have to ship a sample of waste to a laboratory for analysis, that sample is exempt from RCRA regulations per 40  CFR 261.4(d). The exemption is valid throughout the entire cycle starting from sample collection, storage prior to shipping, shipment, lab storage prior to analysis, analysis, and return shipment of excess sample to the sample collector. It means that the sample collector does not need to use a hazardous waste manifest to ship the sample even if it is hazardous (listed, reactive, ignitable, corrosive or toxic). The same goes for samples that you ship to a lab for treatability studies.

Note that if the sample “leaves” the cycle at any point, the exemption ceases to exist. For example, if the lab decides to dispose of the excess sample, the sample exits the cycle and it becomes a solid waste and the lab must determine if it is a hazardous waste. Likewise when the excess sample reaches the sample collector, the cycle ends and the collector must dispose of the sample in accordance with RCRA regulations.

Returning a half-empty (pressurized) gas cylinder to the supplier

Let’s say you have some half-empty pressurized gas cylinders that you wish to return to the supplier. Do you need to manifest them as a hazardous waste because they are reactive (pressurized)?

The answer is: No.

EPA has determined that returning a compressed gas cylinder to the supplier does not constitute disposal on the part of the customer. For most parts, the cylinder itself is the property of the supplier and the customer has no control over what the supplier does with the cylinder and its content once the supplier receives it. So the pressurized cylinder you are returning to the supplier is NOT a RCRA solid waste, according to EPA and therefore it cannot be a hazardous waste.

EPA’s RCRA online document RO14760 states that “returning the cylinder to the supplier does not make the customer a hazardous waste generator.”

Please note that you may still need to ship the pressurized cylinder as a DOT hazardous material.

Definition of solid waste under RCRA

Under the Resource Conservation and Recovery Act (RCRA), one of the criteria for a material to be classified as a RCRA solid waste is that it must be ”discarded”. Only RCRA solid waste can become hazardous waste.

On October 30, 2008, EPA finalized a new definition of solid waste. It states in 40 CFR 261.2(a)(2)(ii) that a hazardous secondary material that is being generated and reclaimed “under the control of the generator” is not considered to be a discarded material. Therefore it is not a RCRA solid waste and cannot become a hazardous waste. This final rule became effective on December 29, 2008.

What that means is that – under federal rule – if you have a spent solvent that you are reclaiming on-site through the use of a distillation unit, the spent solvent (a hazardous secondary material – ignitable) does not need to be managed as a hazardous waste while waiting to be reclaimed.

It is important to note that this new rule does not take effect in RCRA-authorized states unless and until the states adopt it. 

So check with your state agency.

The rather tricky issue of “point of generation”

Questions often asked at manufacturing facilities are” “Is this a waste?” and “Is the waste a hazardous waste?”

The answer to the first question hinges on the issue of point of generation (POG). A material becomes a waste when the owner or operator decides that it cannot be used for its original intended purpose. A good example would be a can of paint. As long as there is a legitimate use for the paint and the paint is still usable as a paint, it is not a waste. So if you can find some one to use the paint in a legitmate manner, you won’t have to worry about it.  But if you decide that you want to dispose of it, it becomes a waste. Another example would be a jar of pure chemical on your laboratory shelf. If the shell life of that chemical has been exceeded (it cannot be used for its original intended purpose), it becomes a waste.

Another example: You may have a very hazardous chemical in a chemical reactor where you are brewing your product, you do not have a waste as long as that hazardous chemical stays inside the reactor as part of your manufacturing process. But once you take that hazardous chemical out of the reactor and you have no further use for it, you will have generated a waste at that point. That’s you POG.

Once you have a waste, then you have to determine if it is hazardous. Does it exhibit any of the four hazardous waste characteristics (ignitability, corrosivity, reactivity and toxicity)? Has the waste been listed by EPA?

More on annual refresher of hazardous waste training

Federal regulation 40 CFR 265.16(c) requires ”facility personnel must take part in an annual review of the initial training”. Does it mean that your employees must do the annual review (or refresher) every 12 months?

What if you are a large company with thousands of employees that require such “annual” review? Is there some flexibility?

Pratt and Whitney was such a company. It had established a RCRA training program for over 15,000 employees. It required each employee to get the annual review within a 90-day period before his anniversary date. That means the longest possible time period between training would be one year plus 90 days (15 months).

On May 21, 1997, the company wrote to EPA to seek gudiance and concurrence that such training schedule would satisfy EPA’s “annual review” requirement. The agency wrote back and told the company that since each employee would receive 4 annual reviews over a 4-year period, the training schedule met the requirements under 40 CFR 265.16(c). The memo from EPA is on file at RCRA Online.

While giving the company its concurance, EPA went on to caution the company to check with state agencies since some of them may have a different interpretation of “annual review”.

 

Training your employees to handle hazardous waste

Federal regulations require you to train your employees in accordance with their specific job function. Make sure you clearly define these job responsibilities in the employees’ job description. New employees must receive training within 6 months and they cannot work with hazardous wastes unsupervised before receiving their initial training.  All employees handling hazardous wastes must also receive annual refresher. 

The regulations do not specify the training content or the duration of training. However, 40 CFR 265.16(a)(2) requires you to provide training on waste management procedures and emergency response. Anyone who works in or adjacent to areas where hazardous wastes are generatted, handled or stored must still be trained to be familiar with basic emergency procedures.

40 CFR 265.16(e) requires you to keep the training records for at least 3 years from the time an employee last worked at the facility.

The issue of waste residues in your “empty”containers

Under 40 CFR 261.7(b)(1), a container (equal to or less than 110 gallons capacity) that used to contain non-acute hazardous wastes is considered to be “RCRA empty” if all wastes have been removed using “commonly employed practices” AND there is no more than 3 percent by weight of the total capacity of the container left OR no more than one inch of residue left on the bottom of the container.

The waste residues in these “RCRA empty” containers are exempt from RCRA regulations due to their small quantities.

However, the container itself is not exempt. You still need to determine if the container itself exhibits one or more of the four RCRA characteristics (ignitability, corrosivity, reactivity and toxicity).

You are responsible for choosing your waste transporter

If you are a hazardous waste generator, it is your responsibility to make sure your waste transporter is licensed by EPA and/or state agency to transport hazardous wastes. In other words, you need to make sure it has an EPA ID number. Federal regulation 40 CFR 262.12(c) states that a ”generator must not offer his hazardous waste to transporters or to treatment, storage or disposal facilities that have not received an EPA identification number.” 

California’s Title 22 hazardous wastes regulation 22 CCR 66262.12(c) has similar language.

It is that simple.

Here is what happened to Home Depot in California. On May 13, 2004, a waste transporter hired by Home Depot collected hazardous waste at the Player del Rey Home Depot and started mixing different types of wastes in a 55-gallon container. The container exploded and caused a fire that resulted in the store being evacuated. The following day, California Highway Patrol found a truck operated by the same transporter hauling hazardous wastes from Home Depot.

It turned out that this waste hauler was not licensed by DTSC as a hazardous waste transporter and did not have an EPA ID number. The unlicensed waste hauler was a subcontractor to Home Depot’s contractor.

This finding initiated a series of subsequent inspections at Home Depot’s 200+ facilities in California which resulted in the State of California filing a law suit against Home Depot. The company was held liable for numerous violations and fined a total of $9.9 million by the Superior Court .

It all started with an unlicensed waste transporter.