Treating Hazardous Waste Without a Permit, Legally

For hazardous waste, the term “treatment” covers obvious means of treatment: neutralizing corrosive materials, burning for fuel, and reclaiming heavy metals out of industrial sludges. But it also includes things like letting half-full cans of paint dry or using a filter to separate suspended solids from wastewaters.

In most cases, you must have a permit from the U.S. or State EPA before treating hazardous waste, but there are a few exceptions. RCRA regulations authorize generators of hazardous waste to undertake several waste treatment activities without having to apply for a permit. However, there are limitations to this allowance.

Two Companies and Their President, Sentenced

Two companies and their president recently pleaded guilty to charges of illegally treating hazardous waste, knowingly violating the Clean Air Act’s hazardous air pollutants regulations, andmaking false statements in violation of federal hazardous waste regulations. They were altogether ordered to pay $1.5M in criminal fines. The companies were sentenced five years of probation, and their president was sentenced to 90 days in prison, plus one year of supervised release.

According to US EPA, the facility would “boil off” hazardous waste to greatly reduce its volume before labeling and shipping it offsite for disposal.

The site did not have a permit to treat its hazardous waste in this way, so the treatment was not RCRA-compliant. The treatment also released hazardous air pollutants into the air, in violation of Clean Air Act regulations that require facilities to minimize air pollution emissions.

So, how do you treat hazardous waste without a permit in compliance with the federal hazardous waste regulations?

Permit-less Hazardous Waste Treatment Strategies

Strategy #1: Adding Absorbents

The hazardous waste characteristics of corrosivity (D002) and the flash point trigger for the characteristic of ignitibility (D001) apply only to liquid materials. If liquid ignitable or corrosive materials are mixed with solids, they may lose their characteristics. However, diluting hazardous waste with other material to remove the characteristic is prohibited treatment.

However, under 40 CFR 270.1(c)(2)(vii), the EPA allows generators to add absorbent material (such as “oil dry”) to hazardous waste in a container, provided you add the absorbent either before you start accumulating hazardous waste or by adding hazardous waste and absorbent at the same time. Also remember that LDR treatment standards will still apply to de-characterized wastes. [40 CFR 261.3(d)-(g)]

Strategy #2: Treatment While Accumulating

Adding absorbents is not the only unpermitted treatment technique generators can use while accumulating their hazardous waste.

On March 24, 1986, at 51 FR 10168, the U.S. EPA said that “of course no permitting would be required if a generator chooses to treat their hazardous waste in the generator’s accumulation tanks or containers in conformance with the requirements of 40 CFR 262.34 and Subpart I or J of Part 265…. The Agency believes that treatment in accumulation tanks or containers is permissible under the existing rules, provided that the tanks or containers are operated strictly in compliance with all applicable standards.”

However, while generators could use any technique to treat their waste while accumulating it, they still must comply with all applicable requirements. In the Generator Improvements Rule of 2016, the EPA restructured 40 CFR 262. The rules that used to be in 40 CFR 262.34 are now found in 40 CFR 262.15 – .17, depending on a site's generator category, and 262.34 now simply reads "Reserved."

This means that:

• The tank/container must remain closed except when adding/removing waste and the integrity of the container cannot be compromised.
• Any thermal treatment, which would degrade the integrity of the containment, is prohibited and any chemical treatment that releases a gas would require some sort of safety venting.
• Physically compacting solid materials or filtering out solids from liquids with a filter (or just gravity) are allowed.

Strategy #3: Incidental Processing

Secondary materials (sludges, by-products, spent materials, scrap metal) are not solid wastes when they are used or reused without first being reclaimed. [40 CFR 261.2(e)] EPA recognizes that in many cases secondary materials may have to be physically processed before they can be effectively used or reused. While any physical processing at all is technically waste treatment (changing the physical form to recover value or render more amenable for handling), the EPA recognizes that “incidental processing” is not reclamation and does not require a treatment permit.

The scope and limitation of this exclusion for incidental processing is explained in a 2005 guidance document and basically means that anything you would do to virgin ingredients before using them is not reclamation when you do it to hazardous secondary materials used as a substitute.

Related:

1. Hazardous Waste Minimization Legally Required
2. 3 Strategies to Minimize Hazardous Waste

RCRA Training for Generators

Lion offers a range of RCRA training courses for industry professionals at every stage of a career. For managers with overall responsibility for RCRA compliance, we recommend comprehensive RCRA Hazardous Waste Management training.

Browse all online and in-person RCRA training options at Lion.com/RCRA.