1. HAZARDOUS WASTE DETERMINATION UNDER RCRA LISTING HAZARDOUS WASTE Narendra Chaudhari Office of Resource Conservation and Recovery U.S. Environmental Protection Agency June 1, 2016

2. PART I What is the definition of hazardous waste under the Resource Conservation and Recovery Act (RCRA)? How does EPA’s regulations identify hazardous waste under RCRA? 2

3. DEFINITION OF HAZARDOUS WASTE UNDER RCRA A solid waste, or combination of solid waste, 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 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. 3

4. REGULATIONS FOR MAKING A HAZARDOUS WASTE DETERMINATION UNDER RCRA In order for a material to be a “hazardous waste” it first must be a solid waste. A “solid waste” is any discarded material that is not specifically excluded by regulations. Generators are required to make a hazardous waste determination when waste is first generated (hazardous or non-hazardous). 4

5. REGULATIONS FOR IDENTIFYING SOLID WASTES AS HAZARDOUS WASTES UNDER RCRA EPA’s regulations establish two ways of identifying solid wastes as hazardous under RCRA. A waste may be considered hazardous if: It exhibits a certain hazardous waste characteristic. It is included on a specific list of wastes EPA has determined are hazardous. 5

6. REGULATIONS FOR IDENTIFYING SOLID WASTES AS HAZARDOUS WASTES UNDER RCRA (continued) Hazardous Waste Characteristics - EPA’s regulations in 40 CFR 261.21 through 261.24 describe four specific measurable properties of wastes (i.e., ignitability, corrosivity, reactivity, or toxicity) which indicate the wastes are hazardous. 6

7. REGULATIONS FOR IDENTIFYING SOLID WASTES AS HAZARDOUS WASTES UNDER RCRA (continued) Hazardous Waste Listings – Our regulations in 40 CFR 261.31 through 261.33 contain four different lists of hazardous wastes that describe wastes from various industrial processes, wastes from specific sectors of industry, or wastes in the form of specific chemical formulations that EPA has determined to be hazardous. These four lists are: – The F List (hazardous wastes from non-specific sources) - contain hazardous wastes generated by various industries or types of facilities, such as “wastewater treatment sludges from electroplating operations” (hazardous waste code F006). These wastes are listed under 40 CFR 261.31. 7

8. REGULATIONS FOR IDENTIFYING SOLID WASTES AS HAZARDOUS WASTES UNDER RCRA (continued) – The K List (hazardous waste from specific sources)- contain hazardous waste generated by specific industries, such as “spent potliners from primary aluminum production” (hazardous waste code K088). These wastes are listed under 40 CFR 261.32. – The P List and the U List – both of these lists contain commercial chemical products that become hazardous wastes when they are discarded or intended to be discarded. The difference is that the chemicals on the P List are identified as acute hazardous wastes and those on the U list are identified as toxic hazardous wastes. Some chemicals on both lists may also be designated to have other properties. These wastes are listed under 40 CFR 261.33. 8

9. PART II What are EPA’s regulatory criteria for determining whether or not to list a solid waste as a hazardous waste under RCRA? What are the steps in EPA’s hazardous waste listing determination process? 9

10. CRITERIA FOR LISTING HAZARDOUS WASTE EPA’s regulations in 40 CFR 261.11 state we shall list only if: a)A waste exhibits a characteristic (i.e., ignitability, corrosivity, reactivity, or toxicity) b)A waste has been found to be fatal to humans in low doses or it meets either LD50 or LC50 criteria as acutely hazardous, or c)“... the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed:” [(261.11(a)(3)] 10

11. CRITERIA FOR LISTING HAZARDOUS WASTE (continued) We generally use the criterion in Section 261.11 (a)(3), as described in (c) above, for hazardous waste listing determinations. Section 261.11(a)(3) specifies that EPA consider 11 factors when making a hazardous waste listing determination. 11

12. CRITERIA FOR LISTING HAZARDOUS WASTE (continued) – Seven of the eleven factors deal primarily with waste characteristics (constituent toxicity, concentration, waste quantity, migration potential, persistence, degradation product potential, and bioaccumulation potential). – Four of the eleven factors are individual factors (plausible management, damage cases, coverage by other regulatory programs, and other factors as may be appropriate). We consider a combination of the above factors to make a listing determination. 12

13. OVERVIEW OF HAZARDOUS WASTE LISTING DETERMINATION PROCESS Data Collection Industry Study Industry Questionnaire Site Visits and Sampling and Analysis 13

14. OVERVIEW OF HAZARDOUS WASTE LISTING DETERMINATION PROCESS (continued) Risk Assessment Multi-Pathway Modeling (using data collected in the previous step) Selection of Waste Management Practices to Model Evaluation of Modeling Results (compare modeling results to risk evaluation criteria) Peer Review of Risk Assessment 14

15. OVERVIEW OF HAZARDOUS WASTE LISTING DETERMINATION PROCESS (continued) Regulatory Development Proposed Rule Public Comment Period Final Rule 15

16. PART III How have hazardous waste listing determinations evolved over the years? How does a hazardous waste listing get amended or removed from a hazardous waste list? 16

17. LISTING DECISIONS: PAST AND PRESENT Past Listing Decisions for Wastes -First listings for hazardous waste were promulgated in 1980. -EPA’s principal focus was on the identity of the waste’s constituents, concentrations of constituents, and the toxicity of constituents. - EPA was likely to list wastes containing significant concentrations of toxic constituents, unless the waste constituents were incapable of migrating in significant concentrations even if improperly managed, or that the waste constituents were not mobile or persistent should they migrate. 17

18. LISTING DECISIONS: PAST AND PRESENT (continued) -Between early 1980’s and early 1990’s, EPA continued to list wastes with significant concentration of toxic constituents using simple risk assessment methodologies. -Typically only considered risks arising from release of toxic constituents in the waste to groundwater and subsequent human exposure. -Little specific modeling was done to assess the release and transport of toxic constituents in the groundwater for waste in question, but often relied on analysis performed for other rules. -Risk was estimated based on a ratio of the concentration of a toxic constituent to the health-based benchmark (e.g., a maximum contaminant level or MCL). EPA would propose to list the waste if this ratio was greater than 1. 18

19. LISTING DECISIONS: PAST AND PRESENT (continued) Carbamates Listing (1995) -Start of more comprehensive evaluations for making listing determinations. -EPA surveyed all U.S. carbamate production facilities and analyzed current waste management practices. -Use of multi-pathway risk assessment to evaluate risk from various waste management practices. -Listing determinations for wastes based on risk from existing and plausible waste management practices. 19

20. LISTING DECISIONS: PAST AND PRESENT (continued) Carbamates Court Decision (Dithiocarbamate Task Force v. EPA; November 1, 1996) -The court vacated a number of listings for carbamate wastes. -The main concern raised by the court’s decision for EPA was on its selection of “plausible” mismanagement scenario in making listing determinations. ONE CASE: Court’s Decision to vacate K160 (solid thiocarbamate wastes) -A single manufacturer shipped its waste to a lined landfill. -EPA modeled risks from disposal of the waste in an unlined landfill, and argued that unlined landfills had been used in the past (and could be used in the future if waste was not listed). -The court rejected disposal of waste in an unlined landfill as “plausible” mismanagement scenario, because the manufacturer was sending the waste to a lined landfill. 20

21. LISTING DECISIONS: PAST AND PRESENT (continued) Recent Listing Decisions for Wastes -Paint production wastes (2002) and dyes and pigment wastes (2005). -In general, EPA has moved to relying more on evaluating risk from existing waste management practices, and less on projecting practices not in use. -The more recent listing decisions for wastes are also contingent on disposing of the wastes in a specified management practice (e.g., lined landfill). 21

22. Amending or Removing an Existing Hazardous Waste Listing Recent Decisions to Amend or Remove Listed Wastes - Amendment to F019 (wastewater treatment sludges from the chemical conversion coating of aluminum) listing (2008). - Removal of Saccharin and Its Salts from the U List (2010). 22

23. GENERAL HAZARDOUS WASTE LISTING RESOURCES ● Electronic Code of Federal Regulations (Title 40 – Protection of Environment—Parts 260-261) www.ecfr.gov ● EPA website (Defining Hazardous Waste Page – including box on Key Resources) https://www.epa.gov/hw/defining-hazardous-waste-listed-characteristic-and-mixed- radiological-wastes ● Website to find federal register notices and dockets containing background documents for F and K lists of wastes http://www.regulations.gov On this website, enter identification number “EPA-HQ-RCRA-2004-0016” to search background documents for the F list wastes and enter identification number “EPA-HQ- RCRA-2004-0017” to search background documents for the K list wastes. 23

24. GENERAL HAZARDOUS WASTE LISTING RESOURCES (continued) Some Important Early Federal Register Notices for the F, K, P, and U Listings The following are some early federal register notices that laid the foundation for the hazardous waste listing program. ● Final Rule and Interim Final Rule – First rule on identification and listings of hazardous wastes 45 FR 33084; May 19,1980 ● Interim Final Rule amending the May 19, 1980 rule (eighteen additional wastes are listed as hazardous) 45 FR 47832; July 16,1980 ● Final Rule and Interim Final Rule - Listings of eighty hazardous wastes from specific and nonspecific sources 45 FR 74884; November 12, 1980 ● Final Rule - Commercial chemical products, off-specification products, and intermediates 45 FR 78532; November 25, 1980 ● Final Rule and Temporary Suspension of Interim Final Rule - Listings for thirteen wastes from specific sources (K Wastes) 46 FR 4614; January 16, 1981 24