Hazardous Waste Rules — How much do they really differ by state?

Originally posted 12/13/2016

The variability of hazardous waste regulations by state is legendary, causing extra work and stress for retailers who operate in multiple states. Or is this overstated, merely a perception driven by a few outliers? Using the Center for Retail Compliance (CRC) Hazardous Waste Variations by State matrix, we set out to see just how much hazardous waste regulations actually vary by state (plus the District of Columbia).

The CRC matrix summarizes four elements of hazardous waste regulations: hazardous waste characteristics (e.g., how to tell if a waste exhibits hazardous properties), thresholds for generator categories, requirements for Conditionally Exempt Small Quantity Generators (CESQG), and universal waste. While state regulations vary in other important ways, these four elements have a significant impact on how generators must manage hazardous waste.

Hazardous waste laws are implemented at the state level (with the exception of Alaska and Iowa). State requirements must be at least, but can be more, stringent than the federal rules. So do states go hog wild and use this authority to make major changes or do they generally follow the federal lead?

The reality is that in these four elements, state regulations are more like the federal rules than they differ.

There are exceptions, five states differ from the federal rules in all four elements and another five in three of the four elements.

Location matters. None of the six New England states are the same as the federal in all four elements, all differ in the CESQG element and most with respect to universal waste. By contrast, the Mid-Atlantic states tend to toe the federal line. All six are the same as federal in hazardous waste characteristics and thresholds for generator categories, one is the same in all four elements and three only vary in one of the four elements. In the South, the majority of states are the same or only differ in one of the four elements. The Southwest is the most uniform, all differ from the federal requirements in only one of the four elements. The graph below shows the percent of variation by region.

CESQG requirements is the element of the four with the most variability. Thirty-one states either have some variation in CESQG requirements or don’t recognize the federal category at all. In most of the states, the variations are minor and the rules essentially the same as federal.

However, in nine states, CESQGs are subject to extensive requirements, typically the same that small quantity generators must follow. Interestingly, all states that start with the letter “M” vary in CESQG requirements, except for Mississippi, while none of the states that start with “N” vary in this area, except for New Hampshire.

For the majority of states, requirements for hazardous waste characteristics and thresholds for generator categories are identical with federal rules. However, eight states have different hazardous waste characteristics. Several build on the federal rules by adding a new characteristic, for example, Michigan added “extreme toxicity,” Minnesota “lethality” and both Washington and Rhode Island “extremely hazardous waste.” Additional tests for identifying hazardous waste are another variation, several states added non-liquid corrosivity tests and California added toxicity tests, including a test for aquatic toxicity.

The final area is Universal Waste. Here again, the majority of the states, 33, recognize the same categories as the federal rules. The 18 states that differ generally recognize the federal categories but include additional items as universal waste. The most popular additional items are used electronics (8 states), aerosol cans (4 states), and antifreeze (3 states). Other types of universal waste include compressed gas cylinders, oil-based finishes, and paint and paint related waste.

So what did we learn? Generally, state requirements are more like federal requirements than they differ. However, to keep facilities on their toes, in some states the differences are significant.

To avoid having to keep track of different requirements, retailers could operate only in states with identical rules as the federal or avoid certain regions altogether. While attractive to regulatory compliance staff, this is an unlikely solution for a business, leaving multi-state retailers having to deal with state variances. This is where the CRC tools can help. In addition to the matrix, Hazardous Waste Variations by State, the CRC also has a Key Variations in Hazardous Waste Generator Reporting matrix and the CRC State Resource pages have links to state regulatory resources. A good compliance program will help identify and manage regulatory differences. The CRC provides guidance on Environmental Management Systems (EMS) for retail that includes downloadable tools in Excel that can be used for gap analysis or program implementation.

(This article and these resources are for informational purpose only and should not be construed as legal, financial or other professional advice.)