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.

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.

On the advice of legal counsel?

The Director of a big box store called me the other day and asked me an interesting question: “When customers return merchandise to my store, do my staff at the customer service counter have to determine immediately if the merchandise is a hazardous waste?”

His legal counsel told him that he has to! He wanted another opinion.

Here is what I told him. NO! It is unreasonable to expect the customer service to determine if the return merchandise is a hazardous waste immediately. The store has several options when it receives a returned merchandise. It can put it back in stock for future sale. It can return the goods to the manufacturer. It can donate the merchandise to charity. Or it can dispose of the returned goods as regular garbage or hazardous wastes – depending on the characterization.

The store needs to makes the hazardous waste determination only at the time when it decides to dispose of the goods. This is commonly referred to as the “point of generation”.  Any time before that “point of generation”, the returned merchandise is not a RCRA “solid waste” and therefore it cannot be a hazardous waste.

So the store can take a reasonable amount of time to determine the final fate of the returned merchandise before it needs to characterize the merchandise as waste. The store can take the returned merchandise back into a store room and make the determination properly. The customer service personnel should not have to make the hazardous waste determination immediately upon receipt of the merchandise becasue it may not even be a waste at all. It should mark the merchandise as “pending determination”.

For the reasons stated above, I disagree with the store’s legal counsel.  

Is the legal counsel’s advice similar to the advice of the fire insurance underwriter who wants his client to operate its facility under 5 feet of water so that it would never catch fire?

How to use EPA’s RCRA online database

There is a little known database in EPA’s website that addresses hazardous waste management issues. It is the RCRA-online database.  It stores hundreds of guidance documents prepared by EPA over the program’s 29-year history. If you go to the database and type in your keywords, you may just find a few guidance documents prepared by EPA on your topic.

Below is an example of an EPA guidance document on the subject of representative sampling under RCRA:

A company wanted to dispose of a large number of fluorescent tubes in 1995. It sent one spent fluorescent tube to a laboratory for TCLP (Toxic Characteristic Leaching Procedure) analysis. The result came back indicating that the one tube “passed” the TCLP test – meaning none of the regulatory levels for the 40 chemicals on the TCLP list was exceeded. The company wrote to EPA to ask if it could then dispose of its entire inventory of spent tubes as non-hazardous waste.

EPA wrote back and told the company that the one tube that was tested was not a representative sample of the entire inventory of spent tubes.  The sampling had to take into account the different brands, the various ages of the tubes, and different wattages, etc. The EPA letter is one of the Faxback documents (Faxback 11907) that you can obtain from RCRA online.

Why you need to keep track of how much hazardous waste you generate in a month

If you are a small quantity generator (someone who generates between 100 and 1000 kg of hazardous waste per calendar month), you should make a point of keeping track of how much waste you generate in a month. The law does not require you to do that. But it is to your great benefit to do so. Why?

Just read the last paragraph of an actual Hazardous Waste Inspection Report from the Pennsylvannia Department of Protection.  Click here dep-inspection-form.

Here is the text in the inspection report reproduced here for your easy reading: “1832 lbs of hazardous waste was transported offsite on August 3, 2001 & 3143 lbs of hazardous waste was transported offsite on august 31, 2001. It is apparent that more than 2200 lbs of hazardous waste was generated in August of this year. Therefore the facility should follow the federal and state requirements for a LQG of hazardous waste.”

The facility was in fact a SQG. The inspector was wrong.

But in the absence of any documentation that showed the facility never generated more than 2200 lbs of waste in a calendar month, the inspector assumed incorrectly that the facility generated all the wastes that were shipped out in August of 2001 in that month. The reality was that the wastes in the two shipments made in August had been accumulated over the past several months.

If the facility had kept track of its waste generation, the inspector would not have made the wrong assumption. All you need is a piece of paper showing the date a 55-gallon waste container becomes full.

 

Things to remember about your Environmental Plans

 

There are a couple of things to keep in mind about your environmental plans.

 

The first thing to remember is that many plans are “performance based”. It means that it is not sufficient to say what you are going to do in a plan, you must actually do it! The SPCC (spill prevention control and countermeasures) plan is a classic example. If you – or the consultants who prepared your plan – say you are going to do weekly inspection of your oil storage area, you are expected to have a weekly inspection checklist to show the EPA inspector. The agency will always look for “evidence of implementation” on your part. So if you can’t do it, don’t put it down in your plan. The same goes for RCRA contingency plans, and storm water pollution prevention plan.

 

The second thing to remember is that you must sign and date your plans and keep them current. Many facilities have been cited for not having their SPCC plan signed off by their plant management. They also get a citation if the lists of personnel in the plans are not current.

 

The third thing to remember is to keep your training records up to date. Regulatory agencies have this saying: “If there is no training record, the training never happened.”

 

These are the most commonly cited violations because they are easy for the inspector to uncover.

 

 

 

 

 

 

Basics on hazardous waste training requirements

Here is a short video from California’s DTSC on the training requirements for hazardous waste generators:

done

 

A few pointers on how to manage an agency inspection

Let’s look at  a few pointers on how to manage an agency inspection.

 

If you know you are going to be inspected, you need to do you own mock inspection to make sure everything is fine. Fix any problem before the inspector shows up. 

 

There is absolutely no need nor is it desirable for you to write down all your violations. You should focus your energy on fixing the problems.   

 

Be sure that you have read and understood all your permits and what they require you to do. For example, if your air permit requires you to keep track of the amount of each coating used during each day, you should do so.

 

Make full use of agency’s inspection checklists that are available on many agencies’ websites. The checklists show you what the inspection will be looking for. Use these lists in your mock audit.

 

Take the time to look at agencies’ inspection manuals. EPA has a manual on how to conduct a multi-media inspection. There is also one on conducting hazardous wastes inspection.  These are the same documents that the agencies use to train their own inspectors. They will provide you with a lot of insights.

 

You can download these from Norman’s website. 

 

Always try to resolve issues at the lowest possible level! Why?,  because The higher the level you go, the less control you will have of the process. The last thing you want is to have a judge who has no idea how you make your products telling you how you should make your products.

 

This is one of the many topics we cover in our popular 2-day environmental seminars.