Do you know which hazardous wastes to count?
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September 03, 2015
Do you know which hazardous wastes to count?
By Elizabeth M Dickinson, JD, Senior Legal Editor - EHS

A generator’s hazardous waste status is based on the quantity of hazardous waste generated each month. So do all your generated hazardous wastes need to be counted? Yes, but no. The federal regulation at 40 CFR 261.5(c) and (d) sets forth a list of wastes that are exempt from being counted in connection with ascertaining generator status. Although 40 CFR 261.5 is titled “Special Requirements for Hazardous Waste Generated by Conditionally Exempt Small Quantity Generators” and does predominately concern this generator class, it is the one Resource Conservation and Recovery Act (RCRA) regulation that addresses counting generated hazardous waste and its counting exemptions apply to all classes of hazardous waste generators.

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What not to count

40 CFR 261.5(c)(1) to (c)(7) excludes from being counted those hazardous wastes that are:

  • Exempt from regulation under 40 CFR 261.4(c) through (f) (i.e., wastes generated in a product or raw material unit as well as waste samples used for characteristic determination or treatability studies)
  • Exempt from regulation under 40 CFR 261.6(a)(3) (i.e. certain recyclable materials— industrial ethyl alcohol, scrap metal, fuels produced from the refining of oil-bearing hazardous waste)
  • Exempt from regulation under 40 CFR 261.7(a)(1) (hazardous waste remaining in an empty container or its inner liner)
  • Exempt from regulation under 40 CFR 261.8 (polychlorinated biphenyls regulated under the Toxic Substances Control Act that are hazardous only because they fail the test for the Toxicity Characteristic (Hazardous Waste Codes D018 through D043 only))
  • Managed immediately upon generation only in on-site elementary neutralization units, wastewater treatment units, or totally enclosed treatment facilities as defined in 40 CFR 260.10
  • Recycled, without prior storage or accumulation, only in an on-site process subject to regulation under 40 CFR 261.6(c)(2)
  • Used oil managed under the requirements of 40 CFR 261.6(a)(4) and 40 CFR 279
  • Spent lead-acid batteries managed under the requirements of 40 CFR 266, Subpart G
  • Universal wastes managed under 40 CFR 261.9 and 40 CFR 273
Hazardous wastes that are an unused commercial chemical product (listed in 40 CFR 261, Subpart D or exhibiting one or more characteristics in 40 CFR 261, Subpart C) that are generated solely as a result of a laboratory cleanout conducted at an eligible academic entity pursuant to 40 CFR 262.213

How to count

Because the federal and most state regulations set forth the generated quantities in kilograms (kg), you need to know the equivalent quantities in pounds (lb):

  • 1 kg = 2.2 lb
  • 100 kg = 220 lb
  • 1,000 kg = 2,200 lb

In addition, a large percentage of hazardous wastes are liquids, not solids, and are measured in gallons. Therefore, in order to measure liquid wastes, the gallons must be converted to pounds. The conversion will depend on the density of the liquid. A rough guide is to figure that 30 gal (a little more than half of a 55-gal drum) of waste with a density similar to water will weigh about 220 lb (100 kg). Consequently, a 55-gal drum holds slightly less than 200 kg of liquid waste with a density similar to water.

Don’t ‘double-count

To avoid double-counting, the regulation states that the wastes that do not need to be counted when determining generator class, provided they were counted when they were initially generated, are (40 CFR 261.5(d)):

  • Hazardous waste when removed from on-site storage
  • Hazardous waste that is produced from on-site treatment (including reclamation) of hazardous waste
  • Spent materials that are generated, reclaimed, and subsequently reused on-site

State differences

The list of hazardous wastes that are excluded from being counted may vary in some states, with the state rule not adopting all of the exemptions granted by its federal counterpart. In other words, a waste that does not need to be counted under the federal rule may have to be counted under a state rule. Similarly, a state may have designated certain wastes as hazardous that are not so designated under federal law. These state hazardous wastes must be counted, unless exempted.

NAMEElizabeth Dickinson, J.D., is a Legal Editor for BLR’s environmental publications, focusing primarily on hazardous waste related topics. Ms. Dickinson has covered environmental developments since 1994. Before joining BLR, she was an associate in the law firm Cummings & Lockwood and an attorney at Aetna Life and Casualty, both in Hartford, Connecticut. She received a Bachelor of Arts degree, cum laude, in English and American Literature and Language from Harvard University and her Juris Doctorate, cum laude, from the University of Connecticut School of Law, where she was an Articles Editor of the Connecticut Law Review. Ms. Dickinson is a member of the Connecticut chapter of the Society of Women Environmental Professionals and the Connecticut Bar Association and is licensed to practice law in Connecticut.

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