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Hazardous Waste Generators — There Is A Difference

Posted on - 08/29/2007
by JHP

You are starting your own business, Tinters, Inc. Your new business will specialize in tinting various metals, plastics and ceramics for other industries. Your process involves the application of various tints to achieve custom color combinations. You have secured several contracts for your services. With these contracts as collateral, you approach your friendly neighborhood banker for financing. After reviewing your business plan and collateral, your banker requests information on how you are handling your hazardous wastes. You ask your banker how this could affect your loan. Your banker politely answers that because of problems with the way companies have handled hazardous wastes in the past, the bank has had several companies default on their loans due to EPA enforcement activities for improper handling or disposal of hazardous wastes. You agree that before you open your doors for business, you will have a qualified attorney and environmental consultant analyze the wastes being generated by your business, and you will implement an appropriate hazardous waste management program.

Your environmental consultant and attorney inform you that under the EPA regulations, the first question that you must answer is whether you are handling any "solid waste" as defined by the Resource Conservation and Recovery Act (RCRA). Under RCRA, "Solid waste" is:

. . . any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include [1] solid or dissolved material in domestic sewage, or [2] solid or dissolved materials in irrigation return flows or [3] industrial discharges which are point sources subject to permits under section 1342 of title 33, or [4] source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) (42 U.S.C. 2011 et seq.).

42 U.S.C. § 6903(27).

Your business generates material that will be discarded; therefore, your business is generating a solid waste under the law. Since your business generates solid wastes, your business must now determine if any of the solid waste being generated is a hazardous waste. RCRA defines a "hazardous waste" as:

[A] solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may-- 
(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or 
(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.

42 U.S.C. § 6903(5). Using this definition, EPA has promulgated detailed regulations listing the chemicals and waste characteristics that are to be treated as hazardous waste. The chemicals that must be treated as hazardous waste are found at 40 C.F.R. § 261.30-33, and the "characteristics" that result in waste being classified as hazardous are found at 40 C.F.R. §§ 261.3 and 261.20-24. These characteristics are: ignitability, corrosivity, reactivity, and toxicity.

You check the list of specific chemicals to determine if you are generating a hazardous waste, and much to your disappointment, you find that a chemical in one of your tinting solutions is a listed hazardous waste. Now that you have determined that you will be generating a hazardous waste, the next question that you must answer is what program do you need for handling the hazardous waste that you generate?

The very first program requirement that you must fulfill after determining that your business is a generator of hazardous wastes is to obtain an EPA hazardous waste identification number. 40 C.F.R. § 262.12. This number tracks the waste from its generation to its disposal, in other words, from "cradle to grave." 40 C.F.R. § 262.12(c). EPA assigns identification numbers after a proposed generator submits EPA Form 8700-12. This is the same form used to notify EPA that one is engaging in hazardous waste management. 42 U.S.C. § 6930(a).

EPA developed regulations that provide cradle to grave control of hazardous wastes "to protect human health and the environment," as mandated by Congress. 42 U.S.C. § 6922(a). These cradle to grave regulations include record keeping on the quantity and disposition of hazardous wastes, 42 U.S.C. § 6922(a)(1); labeling and container standards for the storage, transport, or disposal of hazardous wastes, 42 U.S.C. § 6922(a)(2)-(a)(3); furnishing of waste characterization information to transporters and treatment, storage and disposal facilities (TSDFs), 42 U.S.C. § 6922(a)(4); manifesting requirements (the paperwork required to be kept whenever a hazardous waste is shipped, 42 U.S.C. § 6922(a)(5); and biennial submission of data on waste quantities, dispositions, and waste minimization efforts, 42 U.S.C. § 6922(a)(6). In addition, since 1984, 42 U.S.C. § 6922(b) requires each generator to certify, on each shipment of hazardous waste, (1) that the generator has a program in place to minimize waste generation as much as economically practicable and (2) that the proposed method of treatment, storage, or disposal of the waste "minimizes the present and future threat to human health and the environment." (See Legal Alert, "Waste Minimization Plans -- A Regulatory Requirement" in the November 1996 issue of Metal Finishing Magazine.).

Your environmental consultant recommends that you ship your hazardous waste off-site for disposal. Therefore, you must comply with the manifest system requirements found at 40 C.F.R. § 262.20-.23. Most importantly, you must designate an authorized facility on the manifest to accept the waste for treatment, storage, or disposal. 40 C.F.R. § 262.20(b). Generally, only a facility that has a RCRA TSDF permit may accept hazardous wastes generated off-site. 40 C.F.R. § 260.10. You must sign the manifest, retain a copy, and give the manifest to the transporter. 40 C.F.R. § 262.23. Each transporter or intermediate storage facility along the way signs the manifest, thereby creating a paper trail of your hazardous waste's cradle to grave history. You must also properly package, label, and mark the waste according to Department of Transportation requirements. 40 C.F.R. § 262.30-.33. The Department of Transportation's regulations regarding the shipment of hazardous wastes are found at 49 C.F.R. parts 172, 173, 178, and 179.

Your environmental consultant also informs you that generally, provided your hazardous wastes are stored in containers or tanks that meet RCRA standards, you may accumulate and store your hazardous wastes on site for up to 90 days before transporting. 40 C.F.R. § 262.34(a). As with practically every environmental law, you must comply with certain reporting and record keeping requirements. 40 C.F.R. § 260.40-.43.

As you dig deeper into the regulations, you learn that EPA has imposed relaxed requirements on facilities that generate and accumulate only small quantities of hazardous wastes. Under the current regulations, any hazardous waste generator who generates more than one hundred, but less than one thousand kilograms per month of hazardous waste is designated a "small quantity generator." 40 C.F.R. §260.10. After reading the requirements for small quantity generators, you realize that virtually all the part 262 standards applicable to generators of large quantities of hazardous wastes are applicable to small quantity generators. See 51 Fed. Reg. 10146 (Mar. 24, 1986). Only certain reporting and record keeping requirements for small quantity generators have been relaxed. 40 C.F.R. § 262.44. The only other benefit to being a small quantity generator is being allowed to accumulate hazardous wastes for up to 180, rather than 90 days. 40 C.F.R. § 262.34(d).

After evaluating your production program, implementing certain recycling programs, and agreeing on a cost effective hazardous waste minimization program, you and your environmental consultant agree that your new business will generate less than one hundred kilograms of hazardous waste each month. As a generator of less than one hundred kilograms of hazardous waste per month, your facility will be designated a "conditionally exempt small quantity generator." Conditionally exempt small quantity generators managing less than one hundred kilograms per month of hazardous waste are exempt from RCRA's cradle to grave regulations 40 C.F.R. § 261.5(b). However, just because your business is a conditionally exempt small quantity generator does not mean that you can throw your waste down the drain or out the back door. The conditionally exempt small quantity generator must still make the initial determination whether the waste is hazardous (40 C.F.R. § 261.5(g)(1)) and must ensure that disposal will be either properly handled on site or sent to an off-site facility authorized under state law to accept the waste. 40 C.F.R. § 261.5(g)(2).

Your environmental consultant and attorney warn you that a conditionally exempt small-quantity generator may unknowingly become subject to the more stringent regulations for small-quantity generators if it does not monitor its waste inventory carefully. When the conditionally exempt small-quantity generator accumulates over 1,000 kilograms of hazardous waste on site, or if it accumulates hazardous waste on site for more than 180 days, it automatically, by operation of law, loses its conditionally exempt small quantity generator status. As a practical matter, your environmental consultant advises you to monitor your waste production and inventory very closely if you want to remain a conditionally exempt small quantity generator.

You present your hazardous waste plan to your banker who is impressed that you will be able to achieve the conditionally exempt small quantity generator status. Your loan is approved, and by following the advice of your environmental consultant and attorney, your hazardous waste program is one less thing that you have to worry about.

This article does not cover every detail of an effective hazardous waste program. Where a company can achieve generating less than one hundred kilograms of hazardous waste per month, the company need not worry about many of the hazardous waste laws. I recommend that all of my clients minimize the generation of hazardous waste. A few of the more fortunate ones have been able to achieve conditionally exempt small quantity generator status. Generally, being a conditionally exempt small quantity generator will increase your profitability by minimizing your hazardous waste disposal costs through waste minimization, and by eliminating most of the man hours needed for regulatory compliance.

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