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:
- Excluded from regulation under 40 CFR 261.4 as not a solid waste.
- Listed as a hazardous waste in Subpart D of 40 CFR part 261.
- Identified in Subpart C of 40 CFR part 261 with a hazard characteristic by:
- Testing the waste using standard or approved methods, or
- Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used.
- 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 the Chicago office at 630-541-0626.