Hazardous Waste Determination – The Foundation for Waste Compliance

Posted on April 29, 2013 by William K. Graham, P.E., C.P.E.A.

Proper waste determinations are the foundation for waste compliance; failure to perform them properly can lead to cascading violations.  Generators commonly fail to document hazardous waste determinations from the point of generation for each solid waste stream (as required by 40 CFR 262.11).  This is a frequent citation in RCRA enforcement and observation during compliance audits.

USEPA has updated the 1994 version of Waste Analysis Plan Guidance. This guidance is helpful in understanding regulatory requirements and USEPA intent regard the obligation each solid waste generator has to document a hazardous waste determination.

One tool provided in the new guidance document is a checklist for evaluating waste determinations using acceptable knowledge (i.e. without having waste analysis).  Another consists of tips for using the Safety Data Sheet to support a waste determination.  Appendix F also provides a number of key considerations, including several that are important for generators.

Another issue that arises is whether the generator needs to document the waste determination.  Regulation and USEPA guidance make it plain that these must be documented, and reviewed annually or more often, with records kept for 3 years.  A CESQG especially needs to do this documentation because they rely on proper determinations to assure they stay below the 100 kilogram/month threshold and avoid additional regulatory burdens as a Small Quantity Generator.

For each solid waste stream, regulations require that the generator must determine if the waste is:

  1. Excluded from regulation under 40 CFR 261.4 as not a solid waste.
  2. Listed as a hazardous waste in Subpart D of 40 CFR part 261.
  3. Identified in Subpart C of 40 CFR part 261 with a hazard characteristic by:
    1. Testing the waste using standard or approved methods, or
    2. Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used.
  4. Excluded or restricted under parts 261, 264, 265, 266, 267, 268, and 273.

The Point of Generation is where the waste determination should be made, rather than after waste is moved to storage, exposed to the elements, or mixed with other materials.  Hazardous waste is not regulated until it exits the unit in which it was generated or remains within a shutdown unit for more than 90 days.

Basis for Determination – The generator should document waste determinations for each waste stream coming from each discrete equipment item and, if necessary, for each operating scenario such as normal, shutdown and cleanout.  Records must be kept of unit shutdowns to assure residuals are not stored for longer than 90 days.  For waste streams determined to be not hazardous, the regulatory citation and basis (such as acceptable knowledge or testing) should be documented, recorded and updated as needed. A good engineering practice would be to review and update waste determinations annually or more often if changes occur.

Acceptable Knowledge – The Waste Analysis Guidance document suggests that acceptable knowledge will be: as current as practicable, based on material balances; reviewed annually or when changes occur; and documented with appropriate records retained.

Safety Data Sheet (SDS) – The Waste Analysis Guidance document warns generators to confirm they are using the correct SDS and it is current. The SDS may mention the material is a RCRA waste if discarded or provide CAS numbers that can be compared to the listed wastes.  Properties may reveal the material would be characteristically hazardous (e.g. flash point, pH, reactive, toxic). The SDS should not be used if the waste is mixed, treated or chemically altered or as a substitute for laboratory analyses where appropriate.  SDS may not report all components and may not list hazardous components present in concentrations below 1 percent by weight.  The generator retains the burden to make a correct waste determination and the liability from improper disposal.

Codes for generator reporting need to be assigned for each hazardous waste stream. These codes describe the type of process or activity (Source), physical/chemical characteristics (Form) and type of hazardous waste management system (Management).

Key Considerations for Generators include:

  • Check State and local requirements which may be more stringent
  • Compile records of collective knowledge of wastes
  • Assure representative samples are analyzed using standard methods
  • Document acceptable knowledge in lieu of analysis
  • Support claims that secondary materials are not solid waste
  • Do not rely on single analysis for subsequent waste streams
  • Make new waste determination for each new point of generation
  • Process changes require a new waste determination
  • Periodically review and update waste determinations

 A copy of the new Waste Analysis Guidance can be downloaded from EPA’s website. Additional  information on related USEPA Guidance is available here. If you have any questions about RCRA Waste Determination requirements, please contact William K. Graham, P.E. at bgraham@cecinc.com or 630-541-0626.

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2013 EPCRA Tier II Report

Posted on February 20, 2013 by Paul W. Tomiczek III, REM, P.E.

The Emergency Planning and Community Right-to-Know Act (EPCRA) established the requirements for Federal, state and local governments, Indian Tribes, and industry regarding reporting on hazardous and toxic chemicals.    EPCRA was passed in response to concerns regarding environmental and safety hazards posed by the storage and handling of toxic chemicals.  These concerns were triggered by the disaster in Bhopal, India caused by the accidental release of methyl isocyanate.  Requirements for the preparation and submittal of Tier II Reports were established more than 20 years ago in response to these types of chemical release accidents.  Despite the time since the passage of these regulations, we have seen that some facilities are not submitting the Tier II reports in accordance with the deadline, and in some cases are simply failing to submit the reports.  

 Facilities covered by EPCRA requirements must submit an Emergency and Hazardous Chemical Inventory Form to the Local Emergency Planning Committee (LEPC), the State Emergency Response Commission (SERC), and the local fire department annually. Facilities provide either a Tier I or Tier II Form although most States require the Tier II Form.  Some states and counties have requirements in addition to the federal Tier II requirements. 

 The EPCRA Tier II Form submittal is due on March 1, 2013.  The Tier II Form is required for chemicals that are stored at your facility above specific weight thresholds that are not exempted under the EPCRA regulations.  The weight threshold varies for extremely hazardous substances (EHS) and is set at 10,000 pounds for other chemicals stored at your facility.

 Tier II Forms must report the required information for each hazardous chemical present at your facility in quantities equal to or greater than established threshold amounts (discussed below), unless the chemicals are excluded.  Hazardous chemicals are any substance for which your facility must maintain a Material Safety Data Sheet (MSDS) under OSHA’s Hazard Communication Standard (described at 29 CFR 1910.1200).

 Section 311(e) of EPCRA excludes a number of substances.  The OSHA regulations at Section 1910.1200(b) also stipulates various exemptions from the requirement for maintaining an MSDS for certain chemicals or materials. Minimum thresholds have been established for Tier II reporting under EPCRA Section 312.  These thresholds are as follows:

  •  For Extremely Hazardous Substances (EHSs) – the reporting threshold is 500 pounds or the Threshold Planning Quantity (TPQ), whichever is lower.  The current list of EHS chemicals and their TPQs is maintained at 40 CFR Part 355.
  • For gasoline (all grades combined) at a retail gas station, the threshold level is 75,000 gallons, if the tank(s) was stored entirely underground and was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements.
  • For diesel fuel (all grades combined) at a retail gas station, the threshold level is 100,000 gallons, if the tank(s) was stored entirely underground and the tank(s) was in compliance at all times during the preceding calendar year with all applicable UST requirements.
  • For all other hazardous chemicals for which facilities are required to have or prepare an MSDS, the minimum reporting threshold is 10,000 pounds.

 Your facility needs to report hazardous chemicals that were present at your facility at any time during the previous calendar year at levels that equal or exceed these thresholds.  The report covers the 2012 calendar year, beginning January 1 and ending December 31. For each chemical that your facility has listed, identify all the physical and health hazard boxes that apply.  These hazard categories are defined in 40 CFR 370.2.  The two health hazard categories and three physical hazard categories are a consolidation of the hazard categories defined in the OSHA Hazard Communication Standard, 29 CFR 1910.1200.

 For each chemical that is reported, the Tier II form asks for specific information such as the maximum amount stored onsite, average daily amount stored onsite, number of days present onsite, and storage codes and storage location information (for non-confidential chemicals).  You may elect to withhold location information on a specific chemical from disclosure to the public.  The Tier II instructions provide details for submittal of confidential information. The owner or operator or the officially designated representative of the owner or operator must certify that all information included in the Tier II submission is true, accurate, and complete.  An original signature is required on the submission. 

 To obtain Tier II reporting procedures and requirements for your state, please click on the state where your facility is located  on EPA’s website.

 

The completed Tier II form(s) must be submitted to each of the following organizations:  SERC, LEPC, and the fire department with jurisdiction over your facility.  If you have any questions about EPCRA Tier II reporting requirements and whether your facility may be subject to these regulations, please contact Paul Tomiczek III, REM, P.E. at ptomiczek3@cecinc.com or 800-365-2324. More information on EPCRA Tier II Reporting obligations and instructions for completing the Tier II report are provided here.

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2011 RCRA Biennial Hazardous Waste Report

Posted on January 17, 2012 by Paul W. Tomiczek III, REM, P.E.

This blog was prepared as a reminder that your facility is required to complete and file the 2011 RCRA Hazardous Waste Report (also known as the “Biennial Report”) or your State’s equivalent hazardous waste report by March 1, 2012 if your facility met the definition of a RCRA Large Quantity Generator (LQG) during 2011; or if your facility treated, stored, or disposed of RCRA hazardous wastes on-site during 2011. Although the requirement for submitting the Biennial Reports has been in place for some time, we thought this blog could be helpful to new environmental managers/professionals or as a reminder to the busy environmental managers who face numerous reporting deadlines.

Your facility is a RCRA LQG for 2011 if your facility met any of the following criteria:

  • Your facility generated, in any single calendar month, 1,000 kg (2,200 lbs.) or more of RCRA non-acute hazardous waste; or
  • Your facility generated, in any single calendar month, or accumulated at any time, more than 1 kg (2.2 lbs.) of RCRA acute hazardous waste; or
  • Your facility generated, in any single calendar month, or accumulated at any time, more than 100 kg (220 lbs.) of spill cleanup material contaminated with RCRA acute hazardous waste.

Report your facility’s current Hazardous Waste Generator status based on the date you submit your 2011 Hazardous Waste Report on the Site ID Form. Your facility’s current status could be different from the status during the 2011 Hazardous Waste Report year.  Hazardous waste imported from a foreign country in 2011 must be counted in determining your facility’s generator status if your facility is the U.S. Importer.

 Do not file the 2011 Hazardous Waste Report if, during 2011, your facility was not a RCRA LQG and your facility did not treat, store, or dispose of RCRA hazardous wastes on-site in waste management units subject to a RCRA operating permit.  Unless specifically required by your state, do not file the 2011 Hazardous Waste Report if, during 2011, all hazardous waste generated at your facility was exported directly out of the United States to a foreign country.  An Annual Report must be filed in this case as required under 40 CFR 262.56.

States may impose reporting requirements above and beyond the Federal requirements. Some States use a modified version of this report or their own instructions and forms to fulfill their reporting requirements. Please contact your State Office about State-specific requirements. Locate your State Contact here.

EPA has made a number of changes to the Biennial Reporting Form this year.  A summary of the 2011 changes is provided here.

 The 2011 Hazardous Waste Report contains the following four forms: RCRA Subtitle C Site Identification (Site ID Form), Waste Generation and Management (GM Form), Waste Received From Off-site (WR Form), and Off-Site Identification (OI Form).  More information about these forms is provided here.

 As noted previously, the 2011 Hazardous Waste Report is due to your State or EPA Regional Office by Monday, March 1, 2012.  Your State reporting requirements or forms may differ from the Federal requirements.  Return your completed Hazardous Waste Report to the address listed for your State or Regional contact.

Be sure to make a photocopy of your completed Hazardous Waste Report and keep a copy for at least three years from the due date of the report as required by 40 CFR 262.40(b).

 If you have any questions about RCRA Biennial Hazardous Waste reporting requirements and whether your facility may be subject to these regulations, please contact Paul Tomiczek III, REM, P.E. at ptomiczek3@cecinc.com or 800-365-2324. More information on RCRA Biennial Reporting obligations, and detailed instructions for completing the hazardous waste report available in EPA’s 2011 Hazardous Waste Report Instructions and Forms document.

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