Tips for Managing Commercial Chemical Products
To avoid US EPA civil penalties under the Resource Conservation and Recovery Act (RCRA), facility owners and operators must know when to manage their CCPs as solid/hazardous waste.
What Does "Abandoned" Mean?
A commercial chemical product (CCP) becomes solid waste when it is abandoned. This means you are discarding, burning, or incinerating it. Treating a CCP (not including recycling) or storing it prior to discarding, burning, or incinerating it also constitutes abandonment. The moment the product is abandoned is the point of generation. At this time, you must determine whether or not the CCP meets the definition of hazardous waste at 40 CFR 261.3. If it is hazardous waste, you must manage it appropriately from this moment forward (e.g., under the "satellite" 90-/180-/270-day rules at 40 CFR 262.34).
Does "Expired" Mean the CCP Is a Solid Waste?
Chemical manufacturers determine expiration dates. This is their way of saying "best if used by." An expiration date signifies that if you use the product prior to this date, the manufacturer guarantees the product will do the job for which it was produced with maximum efficacy. EPA does not compel a generator to discard (i.e., dispose of) a CCP when it reaches its expiration date. Be careful, however, of how you word your own corporate standard operating procedures (SOPs). If your SOP "states" that a CCP will be disposed of when it reaches its expiration date, then you are declaring it becomes a solid waste on that date (and potentially a hazardous waste) even if it's still sitting on a shelf or in your inventory storage area.
Managing a CCP So It Is Not a Solid Waste
Storing and managing a CCP as a valuable commodity and part of your working inventory are good indicators that it has not been abandoned and is still considered a product. Take care not to give your inspector the erroneous perception that a CCP has little or no value. If the containers are crushed, corroded, dusty, leaking, incompatible, open, or overpacked in a salvage container, the inspector may suspect the CCP has been abandoned and is, in fact, a solid waste.
CCPs are not wastes when legitimately reclaimed (i.e., processed in some way to recover a usable component) or while they are stored prior to recycling. When CCPs are accumulated speculatively (i.e., without initially knowing if there is a feasible means of recycling them), they are not solid waste according to 40 CFR 261.2(c)(4). However, EPA said,
The following checklist was designed for inspectors to use in differentiating between materials that are products and materials that are solid wastes. EPA concedes that there is no "bright line" delineating exactly when a CCP might enter RCRA's jurisdiction; every facility is unique and inspectors need to take into consideration site-specific factors. But knowing what inspectors are looking for can help you manage your commercial chemical products properly.
"If … a recycling market does not develop and one is not expected within a reasonable time period, or if insufficient amounts of these materials are being recycled, we would consider these commercial chemical products as being stored for discard, and thus subject to regulatory control. We are not setting any time period for determining when these commercial chemical products would become wastes. However, we do expect persons storing these materials to have appropriate documentation or information to support their claim that these materials have recycling potential and that the materials are accumulating for eventual recycling."
(48 FR 14489-14490, April 4, 1983)
- Are the containers used to store the material in good condition (vs. crushed, bulging, corroded, dusty, leaking, incompatible with the contents, open, or overpacked)?
- Are the containers of concern stored in a manner that suggests the material has value? (For example, is the material protected from precipitation, locked up when the facility is not operating, or stored in a fenced/secure area?)
- Does the management of the containers appear to preserve the material's integrity and serve to prevent the material from becoming unstable, unusable, or contaminated?
- Do the containers have labels that identify the contents as product?
- Do the container labels have information, such as lot number, manufacture date, or expiration date, to help determine the age/viability of the material, particularly if a recommended expiration date has been exceeded?
- If a container is not labeled, can the facility support a claim that the contents are a product (e.g., provide analytical testing results to verify that the material meets specifications for use or explain that it recently had to transfer contents to a new container due to damage to the original container and can provide record of purchase)?
- Does the condition of the material suggest it is a valuable product? (For example, no crystals have formed inside or outside the container, the material is not discolored, there is no phase separation evident.)
- Does the facility manage the material as a valuable commodity by limiting access to the material and having security procedures in place to prevent unauthorized removal of the material?
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