Little-known hazardous waste exceptions can significantly reduce regulatory burdens
Originally posted 11/4/2016
By Richard Sieg, Regulatory Counsel, Inmar, Inc.
Fretting about regulatory compliance? There are some little-known, readily available exemptions and exceptions that can work in tandem to reduce compliance burdens and significantly boost your sustainability initiatives. (For the sake of simplicity, for the remainder of this article, the term “exemptions” is used to refer to both exemptions and exceptions)
Background
It is easy to forget that in the Resource Conservation and Recovery Act (RCRA) Congress embraced recycling and reuse of materials as part of the solution to the nation’s waste problem. The objectives of RCRA include protection of health and the environment and conservation of valuable material and energy resources. EPA’s “Reduce, Reuse, Recycle” initiative is an extension of these objectives. Sustainability has become a cornerstone of the retail industry, and in this discussion, you may find opportunities to raise your sustainability program to a higher level while improving your compliance program.
Hazardous waste regulatory requirements significantly impact retailers. There is a three-tiered hazardous waste regulatory framework:
- Large quantity generators (LQGs), assume the most rigorous and cumbersome compliance requirements.
- Small quantity generators (SQGs) assume less burdensome requirements.
- Conditionally-exempt small quantity generators (CESQGs) have the least requirements.
With this in mind, if a generator finds ways to reduce the amount of hazardous waste generated at a retail store, it may be able to significantly reduce that store’s regulatory burden. This article will discuss ways to take advantage of such opportunities allowed in the regulation.
In its hazardous waste regulations, EPA provides exemptions to the definition of solid and hazardous wastes and use of these exemptions is one way to reduce the amount of hazardous waste generated at your stores. Through the use of alternative dispositions to ensure consumer products are donated, liquidated, reused and/or recycled, a retailer may reduce the volume of hazardous waste generated at its stores and possibly lessen its compliance burdens.
Some of these exemptions are not well known, yet can help retailers avoid the significant regulatory burdens associated with hazardous waste requirements. These exemptions exist to encourage sustainable solutions to the end of life of products. Recycling prevents waste, conserves valuable materials, and may help to conserve energy resources. To be clear, this is not a regulatory loophole; legitimate recycling is the right thing to do and comes with some lessening of the burdens of complying with the hazardous waste regulations.
Commercial Chemical Product (CCP) Exemption
One of the lesser-known exemptions is the commercial chemical product (CCP) exemption. It is important to remember that states are allowed to have more stringent programs and, therefore, some states may have limited or eliminated an exemption available under the federal rules. It always is critical to know the rules for the jurisdictions within which the products are being managed. In other words, always know the regulatory requirements for the states you are in.
Products managed under the CCP exemption are exempt from the definition of solid waste and, therefore, are not hazardous wastes under the federal regulations. To qualify for this exemption, a generator must ensure a product is recycled through a reclamation process. For the CCP exemption, the definition of CCP applies to consumer products generally. RCRA Online 14012. Of course, housekeeping matters and the products should be managed as you would manage any product of value (e.g. not broken or leaking).
The potential significance for retail locations may be substantial as consumer products managed under the exemption are products, not wastes, and do not count against a location’s generator status. In other words, through use of this exemption, a store may reduce the amount of hazardous waste generated to become regulated under significantly less rigorous requirements as an SQG or even an CESQG.
What is Legitimate Recycling?
Satisfies These Criteria
- Hazardous material: useful contribution to recycling process, product or intermediate
- Recycling process creates useful product/intermediate
- Housekeeping matters: manage it like you manage your products
- Product comparable to other legitimate products/intermediates
EPA’s website on Legitimate Hazardous Waste Versus Sham Recycling has more information on guidelines for “legitimate recycling.”
The reclamation of nicotine is a perfect example. In 2015, EPA published guidance discussing, in part, a process that reclaims nicotine from consumer products such as e-cigarettes and smoking cessation products. (RCRA Online 14850, 14851). EPA confirmed a nicotine reclamation process legitimately recycles nicotine-containing products and therefore under the CCP exemption they are not considered solid waste. Products sent through this process, therefore, are not a waste at the retailer, during transportation or even prior to processing at the recycling facility.
One significant impact to retailers is EPA’s declaration that nicotine products, even those in low concentrations, such as gums, lozenges and patches, are p-listed hazardous wastes. As a result, a retail location generating only 2.2 pounds of these products as waste in one month is regulated as a large-quantity generator. Few products have similar or greater hazardous waste compliance impacts on retailers as do these products.
EPA has emphasized that speculative accumulation of consumer products for some potential recycling opportunity can lead to compliance issue. EPA has made clear that when CCPs are “stored for a long period of time without any foreseeable means of recovering the product, or if no foreseeable market existed for the recovered product, an overseeing regulatory agency might well conclude that they were abandoned [and therefore a solid and/or hazardous waste].” RO 14762.
If nicotine is the main driver for a retail store’s classification as a large quantity generator, this type of recycling can help reduce costs and risks of liability and contribute to sustainability. Also, a collateral benefit may accrue — raising your sustainability program to another level. While nicotine is one example, similar recycling opportunities exist for other consumer products as well.
Reuse Exemption
The reuse exemption is also relevant to the management of consumer products. Under federal law, a consumer product being used as an ingredient for another product is exempt from the definition of solid waste. One example currently available is the use of fingernail polish to make hobby paint. Fingernail polish can be sent for use as an ingredient for hobby paint and therefore never becomes a waste. Once again, housekeeping matters, and the products should be managed as you would manage any product of value (e.g. not broken or leaking).
Reclamation Innovation
Innovative companies are continually finding more ways to reclaim consumer products and even find reuse opportunities for some. For example, conditioners and soaps can be used as ingredients for industrial soaps and colognes and other fragrances can be used as an ingredient to make industrial fragrances. The bottom line is that innovations in the end-of-life stewardship of many consumer products are available as valuable alternatives to the waste stream, and retailers can improve their risk potential and sustainability profile by pursuing these options. Meanwhile, as an industry we should encourage innovation in the marketplace. Sustainable end-of-life solutions for consumer products fall within retail sector sustainability initiatives, including waste reduction.
Do not forget that state hazardous waste regulations can be more stringent than the federal program, so it’s important to compare the two sets of regulations to ensure compliance across the board. Recycling companies and reverse distributors are knowledgeable about these issues and are a great resource to help you navigate the state regulations.
Helpful Links:
40 CFR § 261.2 Definition of Solid Waste
U.S. EPA Definition of Solid Waste and Hazardous Waste Recycling Training Module
U.S. EPA Legitimate Hazardous Waste Recycling Versus Sham Recycling
U.S. EPA Final Rule: 2015 Definition of Solid Waste (DSW) (provides access to compliance tools for documenting “legitimate recycling”)
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