MEMORANDUM

SUBJECT: Hazardous Waste Generated in Laboratories

FROM: Elizabeth Cotsworth, Director
Office of Solid Waste

TO: RCRA Senior Policy Advisors, EPA Regions I-X

The purpose of this memo is to reiterate and clarify the Environmental
Protection Agency's (EPA) policies under the Resource Conservation and
Recovery Act (RCRA) hazardous waste management program regarding: 1) who
may make a hazardous waste identification, and 2) the regulatory status
of on-site treatment of hazardous waste. This memo is aimed primarily
toward academic institutions that generate hazardous waste in
laboratories.

Background

Academic institutions across the country vary in size and complexity.
Many are large quantity generators (LQGs) of hazardous waste, generating
Æ1000 kg/month; or >1 kg of acute hazardous waste/month. LQGs must
comply with the regulations in 40 CFR 262.34(a) for the accumulation of
waste on-site. Hazardous wastes produced by LQGs may be accumulated
on-site without interim status or a permit for 90 days or less. Many
other academic institutions are small quantity generators (SQGs),
generating >100 kg/month but <1000 kg/month of hazardous waste. SQGs
must comply with 40 CFR 262.34(d) for accumulation of waste on-site.
Hazardous wastes produced by SQGs may be accumulated on-site without
interim status or a permit for 180 days or less.

Many of the hazardous wastes managed at academic institutions are
produced and initially accumulated in research laboratories. The
satellite accumulation provisions of 40 CFR 262.34(c) allow for reduced
requirements for hazardous waste accumulated in containers at or near
any point of generation. Both LQGs and SQGs may take advantage of the
reduced requirements while hazardous waste is in satellite accumulation
areas, such as laboratories, provided the waste is managed in accordance
with the provisions of 40 CFR
262.34(c) (e.g., properly labeled).

Who may determine whether a waste is hazardous?

40 CFR Section 262.11 states, "A person who generates a solid
waste...must determine if that waste is a hazardous waste..." A
"person" is defined as "an individual, trust, firm, joint stock company,
Federal Agency, corporation (including a government corporation),
partnership, association, State, municipality, commission, political
subdivision of a State, or any interstate body" (40 CFR Part 262.10). A
"person" is not limited to a specific individual. Therefore, any
individual who is part of the "person" (as defined) may make a hazardous
waste determination. The hazardous waste determination is not limited
to the individual who actually produces a solid waste. For example,
Environmental, Health & Safety
(EH&S) personnel may make a hazardous waste determination for a waste
produced by an individual researcher, as long as the EH&S personnel and
the researcher are part of the same "person" (e.g., academic
institution).

Of course, EPA's objective is to ensure accurate hazardous waste
identification. Proper waste identification is important in order to
allow the generator to comply with applicable requirements such as those
for labeling and marking pursuant to 40 CFR 262.34. In short, it is the
"person's" responsibility to ensure that the individuals within the
organization who are making the hazardous waste determination obtain all
the necessary information from whichever individuals within the
organization have that information. In practice, a hazardous waste
determination in a laboratory setting would ideally be a collaborative
effort between the individual researcher who produces the waste and EH&S
personnel who may make the hazardous waste determination. That is, EH&S
personnel making a hazardous waste determination should receive
sufficiently accurate and detailed information about each waste from the
individual researcher to ensure accurate waste identification.

We realize that having addressed the question of who may make a
hazardous waste determination may also raise the question of where a
hazardous waste determination is made. The issue is whether a hazardous
waste determination must be made in the laboratory (typically a
satellite accumulation area) or at a central accumulation area. EPA is
not addressing this question in this memo, but intends to address this
question in a future guidance or rulemaking.

What is the regulatory status of on-site treatment of hazardous waste?

EPA has consistently interpreted its regulations to allow generators to
treat hazardous waste in their accumulation tanks and containers,
without obtaining a permit or having interim status. This is true for
both LQGs and SQGs. Of course, all generators are allowed to treat only
the hazardous waste that is generated on-site. A permit would be
required to store and/or treat hazardous waste that is consolidated from
off-site locations. Examples of treatment that may be conducted in
accumulation tanks and containers include precipitating heavy metals
from solutions, and oxidation/reduction reactions.

There are three reasons for this interpretation. First, we discussed
the relationship between storage, treatment and disposal in the preamble
of the January 12, 1981, Federal Register (46 FR 2806-2808). In that
preamble, we noted that treatment can occur at a permitted disposal or
storage facility without affecting that facility's regulatory status.
We believe that treatment
activities should similarly not change the regulatory status of
generators. Since the regulations do not impose additional standards
for treatment when it occurs at a storage facility that requires a
permit, there is no basis for regulating treatment more strictly at a
storage facility which does not require a permit, such as a generator's
accumulation area.

Second, the provisions of 40 CFR 262.34(a) for LQGs and 40 CFR
262.34(d) for SQGs require generators to comply with most of the
technical standards for containers (Part 265 Subpart I) and tanks (Part
265 Subpart J) with which an interim status storage facility would have
to comply. Of the provisions for treatment, storage and disposal
facilities only the financial responsibility, closure/post-closure and
corrective action regulations would not apply to gen erators that treat
hazardous waste.

Third, treatment often renders waste less hazardous, or more amenable
for further treatment, recycling, shipment off site, etc. A requirement
for generators to obtain a permit for any on-site treatment would very
likely discourage such practices.

Finally, with regard to who may treat a hazardous waste, a generator is
defined as "any person, by site, whose act or process produces hazardous
waste..." (40 CFR. 2601.10). Therefore, again, any individual who is
part of the "person," as defined, including EH&S personnel, is allowed
to conduct treatment, provided that the individual complies with the
training requirements of 40 CFR
262.34(a)(4) for LQGs , or 40 CFR 262.34(d)(5) for SQGs. Additionally,
nothing in 40 CFR 262.34 precludes generators from transferring waste
between tanks or containers to facilitate storage or treatment.

It should be noted, however, that some forms of treatment by generators
are not allowed without a permit. For example, incineration is
regulated by specific standards for incinerators (Part 264/265 Subpart
O), and burning waste in boilers and industrial furnaces is regulated
under the specific standards for those units (Part 266 Subpart H).

If the waste is being treated on-site and the treatment residue is
destined to be land disposed, the generator still has responsibilities
under the land disposal restrictions (LDR) program. The LDRs require
that hazardous waste must be treated by a specified method or to a
specified constituent concentration level before it (or its residue) may
be placed in the land. The generator must know the treatment standard
applicable to his/her waste and either treat to meet the treatment
standard or send it to a treater to do so. Generators who treat waste
on-site to remove a hazardous characteristic must prepare a waste
analysis plan if treatment occurs in units that do not require a RCRA
permit (see 40 CFR 262.34(a)(4) for LQGs, and 40 CFR 262.34(d)(4) for
SQGs). In addition, there are some generator paperwork requirements
associated with the LDRs (40 CFR 268.7(a)). More information about the
LDR program may be found in "Land Disposal Restrictions: Summary of
Requirements" at http://www.epa.gov/epaoswer/hazwaste/ldr/new.htm.

Some treatment units have been and continue to be specifically excluded
from permitting. For example, owners and operators of elementary
neutralization units are not required to obtain a RCRA permit (40 CFR
270.1(c)(2)(v)). Similarly, many forms of on-site recycling of
hazardous waste can be performed without a permit, since EPA generally
does not regulate the recycling process itself. However, any
accumulation of hazardous waste prior to placement in an exempt unit or
prior to recycling would be regulated under 40 CFR 262.34, as discussed
above.

On a related matter, for those LQGs that accumulate hazardous waste
for longer than 90 days, or SQGs that accumulate hazardous waste for
longer than 180 days, and therefore require a permit, the Agency
recently proposed a rule that would streamline the permitting
requirements for facilities that store and/or treat their hazardous
waste on-site in tanks and containers (October 12, 2001; 66 FR 52192).
The Agency anticipates finalizing the rule in early 2003.

Please note that this letter discusses only the federal hazardous waste
regulations. States that are authorized to implement the RCRA program
may have regulations that are different than the federal regulations
provided they are not less stringent than the federal program. If you
have any questions, please contact Kristin Fitzgerald at (703) 308-8286
or [email protected].