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Management Strategies for Using RCRA Exclusions

Posted on 2/25/2014 by Scott C. Dunsmore

At first glance, managing hazardous waste in a way that relieves the generator from some RCRA regulations may seem very appealing. In some cases though, these management strategies may not provide as much relief as initially believed and may make subsequent management decisions even more difficult. One scenario that raises this challenge is the EPA’s exclusion for certain de-characterized hazardous wastes.
On May 16, 2001 the EPA revised its definition of hazardous waste to address the status of hazardous wastes that are listed by the Agency solely due to the fact that they exhibit a characteristic. [66 FR 27266] This rule stated that if a waste is listed solely for the characteristic of ignitability, corrosivity, or reactivity (I,C, R) and no longer exhibits any hazardous waste characteristics, it is no longer a hazardous waste. [40 CFR 261.3(g)(1)] Prior to the 2001 rule, the EPA had stated that only characteristic wastes may be excluded from the definition of hazardous waste when they no longer exhibited any characteristics. [40 CFR 261.3(d)(1)] At that time, you had to go through a formal de-listing petition in order to get your listed hazardous waste excluded from regulation. [40 CFR 260.20 and 260.22]
LDRs Still Apply to De-characterized Wastes
The May 2001 rule came with an important caveat: the de-characterized listed wastes are still subject to the land disposal restriction (LDR) requirements at 40 CFR 268. [40 CFR 261.3(g)(3)] The wastes may still require treatment to meet the applicable treatment standards that applied to the waste at its initial point of generation. While losing the characteristic may eliminate the need to address the storage limits and manifesting requirements at 40 CFR 262, the waste may still need treatment in order to comply with Part 268.
The EPA reiterated this point in a recent letter of interpretation: March 1, 2013 – RO 14836. The Agency was asked about the ability to mix an F003 spent solvent with water in order to remove the characteristic of ignitability (F003 is listed at 40 CFR 261.31 solely due to the ignitability characteristic). In the letter, the EPA does acknowledge the effect of 40 CFR 261.3(g) on I, C, or R characteristic-only listed wastes in removing them from the definition of hazardous waste. However, the Agency reaffirmed that diluting the F003 with water to remove the ignitability characteristic may have dire effects on the facility’s ability to meet LDR treatment standards.
In 40 CFR 268.40, the EPA identifies constituent-based treatment standards for F003 (e.g., treat the concentration of acetone in a non-wastewater F003 waste to < 0.28 mg/L). While diluting the F003 to remove the characteristic may in fact reduce the concentration of the regulated constituents and de-characterize the waste, the LDRs at 40 CFR 268.3 prohibit diluting a waste in order to meet LDR treatment standards. This point was clearly restated in the March 1, 2013 letter:

 “…wastes that express a characteristic at the point of generation but are subsequently decharacterized are excluded under 40 CFR Section 261.3(g)(1 ), but are still subject to the Part 268 Land Disposal Restrictions (LDR) requirements per 40 CFR Section 261.3(g)(3). However, water or any other nonhazardous diluent that removes the characteristic of ignitability from F003 wastes allowing the generator to claim the 40 CFR Section 261.3(g)(3) exclusion cannot be used in a manner that constitutes impermissible dilution under CFR Section 268.3. That is, F003 wastes may not be simply diluted as a substitute for adequate treatment.”   
In fact, diluting these wastes may now make meeting the LDR treatment standards more difficult and expensive for the generator. So while losing the characteristic may have made the generator’s storage requirements easier (less restrictive), it also made meeting the LDR treatment standards that applied to the waste at the point of generation more difficult.
When evaluating possible regulatory relief scenarios, it is important for the generator to evaluate the full impact of a waste’s management obligations for every possible scenario. A short-term benefit may not always translate into long-term savings.
Start capitalizing on the best waste management practices that can help you save time and money at the Advanced Hazardous Waste Management Workshop. Designed for experienced RCRA managers and personnel, this two-day workshop helps you streamline your waste management operations and satisfies the EPA’s annual training requirement at 40 CFR 262.34(a)(4) and 265.16.

Tags: best, LDR, practices, RCRA, treatment, waste minimization

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