RCRA Exclusions: Waste In Process

Posted on September 10,2018 by Ross Kellogg

shutterstock_310575989.jpgThe RCRA hazardous waste management program provides a “cradle-to-grave” management system that applies to all hazardous waste generators. But when the government creates rules broad enough to apply to everyone, those rules don’t necessarily work well in every real-world situation.

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That’s why for most RCRA hazardous waste rules, you will find exceptions to EPA’s requirements called exclusions. RCRA exclusions can apply to specific wastes like universal waste (e.g., batteries) or used oil; or specific activities such as waste produced in work areas (i.e., satellite wastes).

Today, let’s focus on wastes that are still "in the process," for example, in a production unit, a product storage tank, or pipeline. The exclusion for these wastes, often known as the “wastes in-process” exclusion, is found at 40 CFR 261.4(c) and reads like this:

A hazardous waste which is generated in a product or raw material storage tank, a product or raw material trasnport vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an associated non-waste-treatment-manufacturing unit, is not subject to regulation under parts 262 through 265, 268, 270, 271 and 124 of this chapter or to the notification requirements of section 3010 of RCRA until it exits the unit in which it was generated, unless the unit is a surface impoundment, or unless the hazardous waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing, or for storage or transportation of product or raw materials.

Three Steps to Identify Hazardous Waste

One of the first things a generator needs to know is which items on site must be managed as hazardous waste. The RCRA regulations provide extensive rules to follow to properly make determinations about what is or is not hazardous waste at 40 CFR 262.11. 

When I present hazardous waste training, I break these rules down into three logical steps:
  1. Is it a waste?
  2. Is it excluded at 40 CFR 261.4 (a) or (b)?
  3. Is it a hazardous waste?
Our “in-process” exclusion is found in 261.4(c), and therefore not excluded from the definition of "solid waste" or "hazardous waste" like the materials listed in paragraphs (a) and (b) of that section (see Step 2 above).  

So, wastes in a process unit are still hazardous wastes. But while you must correctly identify them, these wastes are excluded from management and counting as hazardous wastes as long as they remain inside the unit in which they were generated.

Additionally, not all processes are run continuously. A process can be shut down for up to 90 days before you need to remove, and properly manage, any hazardous wastes that are still in the process, tanks, raw material pipeline, etc. So while you do not need to immediately start managing hazardous waste in equipment, you should be aware of how long the equipment has been out of service. This helps ensure you are not accidentally “storing” unseen waste for longer than allowed under RCRA.

Opportunity to Treat Without a Permit

We’ve determined that waste in a manufacturing process tank is not a “hazardous waste” until we remove it from the process, per 261.4(c). This presents some opportunities.

Point_of_Generation_hazardous_waste-(1).jpgFor example, if we add something to the tank to reduce the volume of the waste or to neutralize the hazard—we’re not treating hazardous waste, technically speaking. Again, our “stuff” is not hazardous waste until we remove it from the tank.

Further reading: Elementary Neutralization: Treatment Without a Permit

Conclusion: The Real Point of Generation

The definition of waste at 40 CFR 261.2 specifically calls out that wastes that are stored prior to disposal are already wastes. But practically speaking, it would be impossible to manage wastes that are still part of a process, like sediment in a raw material storage tank or other parts of a process under the hazardous waste rules. This exclusion exempts these wastes from management, as long as they are in the tank or process.

This exclusion basically helps identify what the real point of generation is for wastes that are in a process. When cleaning out a tank, or performing other maintenance activities, that is the point at which you must do waste ID and begin managing these materials as hazardous waste.

At this point, you may still take advantage of other exclusions, such as managing these wastes under the satellite rules. 

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