Is My State Hazardous Waste a DOT Hazmat?

Posted on 6/26/2017 by Roger Marks

Passed in 1976, the Resource Conservation Recovery Act (RCRA) required US EPA to develop a “cradle-to-grave” management program for hazardous wastes. Under RCRA, US EPA authorizes individual US states develop their own hazardous waste compliance programs, as long as the State program is “at least as stringent” as the Federal RCRA requirements.

All but two states—Alaska and Iowa—have established approved State hazardous waste programs. While many of these programs are basically identical to the Federal RCRA program, some have significant differences.  

In some ways, these unique State rules make hazardous waste compliance more complicated. This is especially true when it comes to shipping hazardous materials under US DOT’s Hazardous Materials Regulations (HMR) at 49 CFR 171-181 et al.

Because of the varying ways that US EPA, State agencies, and US DOT define “hazardous waste,” determining which state-regulated wastes are covered under the HMR can be a challenge. Here, we will take a look at the steps you should take to make that determination for any state-regulated waste.

The Main Issue—State-only Wastes 

One way that State programs impose stricter hazardous waste regulations than the Federal government is by expanding on US EPA’s definition of “hazardous waste” to cover wastes that are not currently regulated under Federal rules. 

For example, Federal regulations assign the D002 code (corrosivity) to liquids only. Some states, however, assign the corrosivity characteristic and D002 code to solid materials. Thus, while “solid corrosives” are not covered under US EPA’s regulations, they are considered hazardous waste in those states. In general, facilities will manage these additional “State wastes” the same way as the “Federal wastes” while the waste is on site.

When it comes to shipping “State wastes” off site for treatment, recycling, or disposal, the real challenge begins. Because of the way US DOT defines “hazardous wastes,” “State wastes” may or may not be considered hazardous materials when shipped.

Shipping Hazmat and Hazardous Waste Under DOT Rules

The DOT regulates the shipment of Hazardous materials, defined in 49 CFR 171.8, as follows:

Hazardous material means a substance or material that the Secretary of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. 5103).

DOT’s definition of “hazardous materials” covers hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 CFR 172.101), and materials that meet the defining criteria for hazard classes and divisions in 49 CFR Part 173..

Note that DOT’s definition of hazmat explicitly includes hazardous wastes. However, US DOT does not operate under the same definition of “hazardous wastes” as US EPA or State agencies. DOT defines hazardous waste this way:

Hazardous waste, for the purposes of this chapter, means any material that is subject to the Hazardous Waste Manifest Requirements of the U.S. Environmental Protection Agency specified in 40 CFR part 262.

Because they are not covered by 40 CFR 262, State-only hazardous wastes do not count as hazardous wastes as far as US DOT is concerned, even if State rules require the use of a hazardous waste manifest. That doesn’t necessarily mean that these wastes are not regulated in transportation. To determine how to deal with these State wastes, you must first go through the DOT’s hazardous materials classification process.

Classifying State Hazardous Waste Under 49 CFR Rules  

Many hazardous wastes are already regulated as DOT hazardous material because of their physical or chemical attributes. Flammable solvents, for example, are Class 3 flammable liquids (49 CFR 173.120) whether they’re freshly produced or used and contaminated with D001 hazardous wastes. Any waste that meets DOT’s Hazard Class definitions for Class 1–8 is regulated as hazardous materials and subject to all applicable requirements of the HMR.

Of course, things aren’t always so straightforward. When it’s time to ship hazardous waste off-site, facilities may face one of the following three alternative scenarios:

Scenario I: Federal Hazardous Waste
If a Federal hazardous waste does not meet any of the US DOT definitions for hazmat Class 1–8, generators must ship the waste as a Class 9 Miscellaneous Hazard. Examples of Class 9 hazmat wastes include hazardous wastewaters, sludges, or soils contaminated with lead (D008), which may be shipped as Class 9 hazardous waste liquid n.o.s. regardless of its other properties. [49 CFR 172.101(c) (9)]
Scenario II: State-only Hazardous Waste
The process is similar for State-specific waste. You must start by checking whether your State waste meets the definition of a DOT Hazard Class 1–8. If it does, the waste will be hazmat, even if it doesn’t meet the definition of a DOT “hazardous waste” above.

You would use all the hazmat regulations, but not supplement it with the DOT’s waste requirements. For an example, let’s return to “solid corrosives,” such as off-spec sodium hydroxide, solid. This State waste would first be classified as a Class 8 corrosive, per 49 CFR 173.136. But, when you ship it, you would not add the word “waste” to the Proper Shipping Name.

Scenario III: State-only Hazardous waste
If your state regulates a waste that meets neither the Class 1–8 definitions nor any non-waste Class 9 criteria, it is not assigned a DOT hazard class and would not be regulated by the DOT. It can still go on a manifest, but you would not check the HM column (for hazardous materials) and would not use a full DOT basic description. You would, however, find out how your state wants you to identify your waste on the manifest, and follow all applicable state rules.

Learn Your State’s Unique Hazardous Rules

State rules are often more complex and more stringent than the Federal RCRA requirements. Lion offers state hazardous waste for professionals who must comply with unique state regulations.

California Hazardous Waste Management (Workshop or Online Course)
New! California Hazardous Waste Management Refresher (Online Course)
New York Hazardous Waste Management (Workshop or Online Course)
Texas Hazardous & Industrial Waste Management (Workshop or Online Course)
Washington Dangerous Waste Management (Online Course

Plus, all attendees of Lion’s RCRA Hazardous Waste Management Workshop receive a Lion Membership which includes access to up-to-date state hazardous waste resources, so you always know the latest rules in all 50 states.

Tags: hazardous, RCRA, state rules, waste

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