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Are you in EPA Compliance for Hazardous Waste Management?

March 20, 2021

Here is what to consider when wanting to know if you are in EPA compliance for Hazardous Waste Management.

If your enterprise isn’t an in-your-face hazardous waste generator, then you probably don’t sit up nights wondering whether you’re in EPA compliance. You’re thinking, “Like—what hazardous waste?” 

But if you’ve found your way to this blog, it’s probably because it’s crossed your mind that some byproduct of your operation—whether you’re throwing it away or recycling it—might meet the definition of hazardous waste per the EPA.

That said, consider that what the EPA considers hazardous waste isn’t necessarily obvious to the casual observer. Too much of anything can require hazardous waste management—no matter how wholesome its image—if it winds up where it shouldn’t. Milk comes to mind.

Could milk possibly require hazardous waste management?

Definitely. Farmers have been known to dump excess milk into their fields when the laws of economics trigger the unintended consequences of agricultural subsidies. And what could be wrong with that? Like, it’s milk…for gosh sake…not Havoline 10W-30.

Well here’s a surprising factoid: An oil slick made of milkfat will block oxygen and sunlight just as effectively as one made of petroleum, ecologically devastating nearby waterways. And bear in mind that EPA agents don’t suffer surprises congenially. They’re funny that way.

Poor hazardous waste management is a danger to your finances and external brand

Okay, so you’re not a farmer, and you’re not keeping a herd of Holsteins grazing behind your widget factory. But there are other, less bucolic ways to innocently run afoul of environmental regulations. Submitted for your consideration:

Roughly five years ago, Whole Foods was fined by the EPA for how its individual stores disposed of customer returns and out-of-date products that were no longer shelf-worthy. Since there was no criminal intent, the issue was congenially settled for a mere $3.5 million. 

The offending products were seemingly innocuous out-of-date goods dumped into the trash: nail polish remover, hand sanitizer, liquor, vitamins, and other things the EPA classifies as hazardous waste once they’re no longer useable for their intended purpose.

The settlement tossed the ecologically self-conscious Whole Foods into the same shopping cart with Wal-Mart, which perpetrated a similar brand fiasco upon itself some years prior, coughing up $81 million to make nice with the EPA. 

That’s a lot of cash, customer goodwill, and brand equity tossed into the trash bin—quite literally.

The lesson: In this age of hyperawareness about environmental issues and the political climate surrounding them, mismanagement of your hazardous waste can badly wound your brand image—as well as your cash position.

So what exactly constitutes hazardous waste?

Waste is any solid, liquid, or contained gas that is burned, incinerated, recycled, or simply disposed of, with some exceptions for recycled materials. It can be a manufacturing byproduct, or simply a commercial product that you use in your business and are disposing of, such as cleaning fluid or battery acid. Even materials that can be reused in some way (such as burning solvents for fuel) might be considered waste.

The EPA separates waste into three different categories:

  1. Listed wastes. There are more than 500 substances deemed harmful to human health and/or the environment if not managed properly. They are published in the Code of Federal Regulations (40 CFR Part 261) across four separate lists. Ergo, “listed waste.” 
  2. Acutely hazardous wastes. Some listed wastes are so toxic as to be fatal even in low doses. Hence, they’re called “acutely hazardous.”  
  3. Characteristic wastes. If waste isn’t “listed” [per (1) or (2)], it might nonetheless be considered hazardous for one or more of its characteristics. Therefore, “characteristic waste.” Some characteristics you might want to watch out for:
  • Ignitability—it catches fire under certain conditions.  E.g., certain paints, degreasers, or solvents 
  • Corrosiveness—it is a significant acid or base. E.g., rust removers, certain cleaning fluids, or battery acid
  • Reactivity—tending to explode or release toxic fumes if heated, mixed with water, or pressurized.  E.g., certain cyanides or sulfide-bearing wastes 
  • Toxicity—being harmful or fatal if ingested or absorbed, or leaching toxic chemicals into the soil or groundwater when disposed of on land.  E.g., wastes containing cadmium, lead, or mercury. [If you don’t know whether your waste is toxic, or if you suspect your processes generate toxic waste, you should have it tested using the Toxicity Characteristic Leaching Procedure (TCLP)].  


How to identify and characterize your hazardous waste

If your hazardous waste isn’t a “listed” one, things can get complicated. For this reason, it’s important to get expert advice.

By law, products that contain hazardous materials each come with a Material Safety Data Sheet (MSDS), which identifies the hazardous substances therein. But remember that you’re “characterizing” what you intend to ship offsite, not the virgin material described in the MSDS.   

For example, a 20 percent concentration of virgin hydrochloric acid might become less than a 5-percent concentration once you’ve used it for one-or-another process. In a sense, that’s good for your hazardous waste management. But one-or-another process might also have generated other contaminants that are in and of themselves a hazardous waste. So how do you know?

Again, expert advice is what you need, and you can get some here.

So what’s the upshot?

In matters of hazardous waste, the probing proboscis of the EPA is likely that of your state—not the federal government. This is because the federal law establishing the agency (RCRA) requires it to delegate primary responsibility for implementing federal hazardous waste regulations to the individual states.

Thus, individual states can differ from federal guidelines about what constitutes hazardous waste and how it should be handled. More importantly, in many states, hazardous waste management regulations are more stringent than those of the federal government.

Also, different states might have different regulations about “lethality” or “severe toxicity” characteristics when determining if something is a hazardous waste; or they might add to the characteristics already in place per the EPA.

In sum, while it’s necessary to know what the EPA requires for successful hazardous waste management, it’s not sufficient. States can impose regulations that are more restrictive and severe than their EPA counterparts, and they often do. 

Running afoul of such local requirements can be expensive, litigious, and time-consuming. 

Expert advice is crucial. You can get some here. And thank you for reading our blog!

Disposal of hazardous waste doesn’t have to be painful.