Article #E1310154

Knowledge Base Article #E1310154

Response Date:
Last Reviewed:

10/06/2005
10/17/2005

The information in this article applies to: EPA
Regulatory reference: 40 CFR 261.7(b)(1)

Question: I am looking for an interpretation of what constitutes a "RCRA-empty" container for a particular situation.

In 40 CFR 261.7 there is a list of rules that determine when a container is legally empty. Basically, it says that a container is empty if you have employed common means to remove the liquid (pouring, pumping, aspirating, etc.) and less that one inch of material remains in the container.

There are some materials that adhere to the sides of a container and drain into the bottom of the container when allowed to sit. I am particularly interested in smaller size containers, one gallon and one pint size in order to meet these regulations. What is the practical reality of this? How can I make these containers RCRA empty?

Response: You are correct that, for most wastes, 40 CFR 261.7(b)(1) states that a container or inner liner removed from a container that has held a hazardous waste is empty if:

All wastes have been removed that can be removed using the practices commonly employed to remove materials from that type of container
No more than 2.5 centimeters (1 inch) of residue remain on the bottom of the container or inner liner.
No more than 3 percent by weight of the total capacity of the container remains in the container or inner liner if the container is less than or equal to 119 gallons in size
No more than 0.3 percent by weight of the total capacity of the container remains in the container or inner liner if the container is greater than 119 gallons in size.

NOTE: There are special rules for acutely hazardous waste and compressed gas.

In the situation you describe, the container is initially emptied so less than an inch of residue remains on both the bottom and the sides of the container. However, some residue adhering to the sides of the container in time settles to the bottom causing more than an inch to remain in the container.

The "Empties" rule was added to RCRA regulations on November 25, 1980. In that Federal Register, EPA stated with regard to the one-inch threshold:

"The Agency recognizes that this part of the definition is not perfectly precise and may be subject to interpretation in difficult cases. For example, if the hazardous waste is a two-phase mixture... common emptying methods might remove the liquid phase and leave the solids or semi-solids adhering to the sides so that there is less than 2.5 centimeters of waste on the bottom of the container. In this example, the Agency would not view the container as an empty container because the total amount of material in the container would be greater than a 2.5 centimeter layer on the bottom." [45 FR 78525-78526, November 25, 1980]

Lion has commonly seen this enforced as a non-empty container when EPA later finds the container with more than one inch on the bottom. If some residue remains adhered to the side of the container, you must empty the container enough so that, when it eventually settles to the bottom, the container remains EPA empty.

This service assists Lion clientele in finding resources and information for regulatory compliance. It is not intended to render legal advice. You should confirm any compliance determinations with all applicable Federal and state laws and regulations.