Conjunctions & Compliance: And & Or in Lists
Crack a manual of environmental, health & safety, or hazardous materials regulations and there’s a good chance you will land on a page with some kind of list on it.
Regulators are big on lists: Lists to determine who must comply with a rule, lists of chemicals, lists of criteria, lists of rules and restrictions, lists of exceptions, etc. Some lists appear in paragraph form, with items separated by commas or semicolons. Other lists display each item or condition on a separate line, using sequential numbers or letters to indicate a new item (e.g., 1, 2, 3. or a, b, c).The use of conjunctions (words like "and" and "or") in a regulatory list may seem like a minor detail. But in fact, it can make or break the way you understand and apply a regulation.
And vs. Or In Regulatory Lists
Look closely at any list in the Code of Federal Regulations (CFR) and you will probably see one of these words: “and” or “or.” These are two basic, short words that every English speaker uses regularly and knows the meaning of.
When they appear as part of a regulatory list, however, “and” or “or” can be the most important word on the entire list.
“And” is a conjunctive. It joins the items placed before and after it. When items on a list are joined with “and,” it means that all of the items must be satisfied or considered together to determine if a rule applies or how to comply with it.
“Or” is used to link things that are alternatives to each other. When items on a list are joined with “or,” it means that the list criteria will be satisfied if any item or condition on the list is true.
RCRA Generator Category Criteria ("And")
For an example, see the RCRA hazardous waste regulations and the definition of a very small quantity generator or VSQG.
Very small quantity generator is a generator who generates less than or equal to the following amounts in a calendar month:
(1) 100 kilograms (220 lbs) of non-acute hazardous waste; and
(2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e); and
(3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter.
[40 CFR 260.10]
This regulation uses “and” to join all three items on the list together. To be considered a very small quantity generator under RCRA, a generator must remain at or below all three of the listed thresholds in every calendar month (unless another exception or exclusion applies).
A generator that exceeds any of these thresholds is not a VSQG. The site would instead be subject to requirements for a larger generator category—i.e., small quantity (SQG) or large quantity (LQG).
HMR Rules for Empty Packagings ("And")
Our second example of a list that uses “and,” comes from the US DOT/PHMSA Hazardous Materials Regulations (HMR). The HMR prohibits transportation of an empty hazardous materials package unless all hazmat labels are removed.
There are exceptions to label removal rule. The list below, found at 49 CFR 172.401(d), tells us when it is NOT required to remove a hazmat label from an empty package.
Conditions where it is not necessary to remove labels from empty packaging.
The provisions of paragraph (a) of this section do not apply to a packaging bearing a label if that packaging is:
(1) Unused or cleaned and purged of all residue;
(2) Transported in a transport vehicle or freight container in such a manner that the packaging is not visible during transportation; and
(3) Loaded by the shipper and unloaded by the shipper or consignee.
[49 CFR 172.401(d)]
Here, “and” appears after the second-to-last item on the list, but the meaning is the same. The “and” joins the conditions and tells us that all three must be satisfied to ship an empty hazmat package without removing the labels.
Hazardous Materials Incident Reporting ("Or")
Compare the two lists above to this next one, which uses “or” to connect the items it includes. The list below shows US DOT’s criteria for reporting hazmat transportation incidents.
49 CFR 171.15(b)(1) tells that an incident must be reported by phone as soon as practical (and no later than 12 hours after an incident) if, as a direct result of a hazardous material…
(i) A person is killed;
(ii) A person receives an injury requiring admittance to a hospital;
(iii) The general public is evacuated for one hour or more;
(iv) A major transportation artery or facility is closed or shut down for one hour or more; or
(v) The operational flight pattern or routine of an aircraft is altered.
The use of “or” tells that if any one of these conditions are met, the incident must be reported.
Misreading or misunderstanding “and” vs. “or” in a regulatory list can easily result in noncompliance—or devoting extraneous resources toward rules that don’t apply. Understanding the role that these conjunctions play in the meaning and interpretation of industry regulations is crucial to compliance.
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Tags: environmental compliance, hazardous materials, RCRA, Regulatory literacy
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