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Federal vs. State Hazardous Waste Classification

Posted on 11/25/2014 by Won Bae

In the US, enforcing laws and regulations involves a balancing act between the Federal government and individual State governments. When it comes to hazardous waste management, states have the authority to impose standards stricter than the Federal government's. As a result, certain materials that are not regulated as solid or hazardous waste under the Federal Resource Conservation and Recovery Act (RCRA) may be regulated under your state's RCRA program.

The Definition of Solid Waste

The Federal definition of solid waste includes materials that are abandoned (e.g., disposed of, burned/incinerated, or treated or stored prior to disposal, burning, or incinerating); military munitions; and materials recycled in certain ways. [40 CFR 261.2] While not all states define solid waste the same way, they all use the Federal definition as a foundation.
 
Check Your Exclusions Carefully

The Federal regulations provide relief from the definition of solid waste at 40 CFR 261.4(a) and from the definition of hazardous waste at 40 CFR 261.4(b). There are exceptions from the definition of solid waste for certain recycling activities (e.g., regenerating sulfuric acid) and for specific materials (e.g., hazardous secondary materials used to make zinc fertilizer). There are also exceptions for solid wastes from the definition of hazardous waste (e.g., recycled chlorofluorocarbons and hot-drained used oil filters).

While states have the option to adopt these Federal exclusions, many do not incorporate by reference or include all of the exclusions. In addition:
  • For some of the exclusions they do allow, states may require additional conditions be met to qualify for their use; and
  • If a solid waste is not a hazardous waste or excluded from the definition of hazardous waste subsequent to generation, the state may have additional classification and/or management requirements for that solid waste outside of the hazardous waste system (e.g., Texas Class 1 industrial wastes, mandatory recycling for consumer goods, or demolition waste).
The Definition of Hazardous Waste

After determining that a material is a solid waste, the generator must determine if it is a hazardous waste. Federal regulations include three major criteria for identifying hazardous waste:
  1. Listed wastes. These are wastes the EPA has determined to be hazardous for at least one of several reasons. [40 CFR 261.11] Hazardous wastes are described on the 40 CFR 261.31 "F List," which consists of wastes from common manufacturing (e.g., solvents); the 40 CFR 261.32 "K List," which consists of wastes from specific manufacturing and industrial processes (e.g., wastewater treatment unit sludges and emission control dust from producing steel in electric furnaces); and the 40 CFR 261.33 "P and U Lists," which describe unused discarded commercial chemical products. [40 CFR 261, Subpart D]
  2. Characteristic wastes. The four Federal characteristics are ignitability, corrosivity, reactivity, and toxicity. [40 CFR 261, Subpart C]
  3. Wastes created through the mixture rule. [40 CFR 261.3]
Common State Differences

While the Federal regulations generally provide a strong foundation for State RCRA programs, a state's hazardous waste definition commonly varies in these (and other) ways:
  • Additionally listed wastes:
    • Industry-specific additional listed waste codes that are typical in states where a unique industry is prevalent;
    • PCB wastes; and
    • Unique military wastes in states with military installations handling sensitive materials.
  • Changes to the characteristics:
    • Additional characteristics such as a "lethality" or "severe" toxicity as part of the definition of hazardous waste; and
    • Added criteria to an existing characteristic.
For example, states may add physically solid or non-aqueous materials that are mixed with water and produce pH levels stated at 40 CFR 261.22 to the definition of corrosivity. They may also add constituents to the table of contaminants under the toxicity characteristic; change maximum concentration levels; or create a table of non-RCRA/State-regulated contaminants (e.g., for persistent and bioaccumulative toxic substances).
  • The mixture rule:
    • Under the Federal rules, mixing solid waste with a listed hazardous waste causes the entire mixture to be regulated as that listed hazardous waste. However, Federal regulations have exceptions that exclude this mixture as a hazardous waste if the hazardous waste was only listed for ignitability, corrosivity, or reactivity and the resultant mixture no longer exhibits a characteristic. A state may not allow for this exception.
Special Wastes

Universal Wastes. There are four types of hazardous wastes that are regulated less stringently as universal wastes: batteries, pesticides, mercury-containing equipment (e.g., thermometers or thermostats and other items containing elemental mercury), and lamps (e.g., fluorescent bulbs).

A few states have not adopted mercury-containing equipment and only allow thermostats to be regulated as a universal waste. On a positive note, many states have added to their lists of universal wastes to include things like e-waste, CRTs, and antifreeze. In some cases, there are extra requirements for state-only universal waste (e.g., paint in Texas and CRTs in California).

Used Oil. The Federal regulations allow generators to follow the more liberal used oil management rules at 40 CFR 279 to manage used oil that exhibits a characteristic at the point of generation. However, a state may require used oil to be managed as hazardous waste even if it is going to be recycled (e.g., California). In addition, states may have more stringent management requirements for anything classified as used oil.

Know Your State Rules

Hazardous waste generators nationwide must maintain compliance with all applicable hazardous waste regulations—both Federal and state-specific ones. Because the State program may include additional, more stringent, or different requirements, it is critical that EHS professionals are aware of the requirements in their state and how they differ from the US EPA rules.

Some states' RCRA programs are especially unique. To help generators in California, New York, and Texas maintain compliance with their states' unique hazardous waste rules, Lion Technology presents the Hazardous Waste in California Workshop, the Managing Hazardous Waste in New York Workshop, and the Industrial & Hazardous Waste in Texas Workshop.


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