Part 1: Federal vs. State Hazardous Waste Classifications

Last updated on October 13, 2021

In the United States, enforcing laws and regulations involves a balancing act between the federal government and individual state governments. When it comes to hazardous waste management, states can impose standards stricter than the federal governments. As a result, certain materials not regulated as solid or hazardous waste under the federal Resource Conservation and Recovery Act (RCRA) may be regulated materials/wastes under a specific state’s program.

Under RCRA, Congress and the US EPA encourage each state to implement and oversee its own hazardous waste program. With the exception of Alaska and Iowa, each US state (and several territories) maintains its own RCRA program that it operates, incorporating, at a minimum, the federal rules.

For the US EPA to authorize a state’s RCRA program to operate instead of federal standards, the state program must be:

• Consistent with the federal RCRA standards
• Comprehensively at least as stringent as the RCRA

An individual state’s hazardous waste program may be more stringent than the federal regulations. However, a state’s program cannot be less stringent than the federal regulations. Without getting into the minutia, different federal regulations deal with the authorization and implementation of individual state programs, e.g.:

• US Code: Title 42 6926: Authorized State Hazardous Waste Programs
• Code of Federal Regulations: Title 40: Protection of Environment §271.1

In the end, some states have a broader scope of hazardous waste rules that generators within a said state must follow.

Common State Differences in Hazardous Waste Classification

While the federal regulations generally provide a strong foundation for state RCRA programs, a state’s hazardous waste definition commonly varies in these (and other) ways:

• Additional listed wastes:
  • Industry-specific listed waste codes are typical in states where a unique industry is prevalent
  • Polychlorinated Biphenyl (PCB) wastes
  • Unique military wastes in states with military installations handling sensitive materials
• Expanded characteristic wastes:
  • Additional characteristics such as a “lethality” or “severe” toxicity as part of the definition of hazardous waste
  • Added criteria to an existing characteristic code definition
• For example, states may broaden the federal definition of corrosivity stated in 40 CFR 222 to include more than aqueous (high water) liquids and add physically solid or non-aqueous materials. They may also do any of the following:
• Add constituents to the table of contaminants under the toxicity characteristic
• Change maximum concentration levels
• Create a table of non-RCRA/state-regulated contaminants (e.g., for persistent and bioaccumulative toxic substances)
• The mixture rule:
  • Under the federal rules, mixing solid waste with a listed hazardous waste causes the entire mixture to be regulated as that listed hazardous waste.
  • However, federal regulations have exceptions that exclude this mixture as a hazardous waste if the hazardous waste was only listed for ignitability, corrosivity, or reactivity and the resultant mixture no longer exhibits a characteristic.
  • A state may not allow for this exception.

Universal Wastes

There are five types of hazardous wastes that are regulated less stringently as universal wastes:

• Batteries
• Pesticides
• Mercury-containing equipment (e.g., thermometers, thermostats, and other items containing elemental mercury)
• Lamps (e.g., fluorescent bulbs)
• Aerosols

Many states have added to their lists of universal wastes to include things like paint, e-waste, CRTs, and antifreeze. In some cases, there are additional requirements for state-only universal waste (e.g., paint in Texas and CRTs in California).

Know Your State Rules for Hazardous Waste Management

Hazardous waste generators nationwide must comply with all applicable hazardous waste regulations — both federal and state-specific ones. Because the state program may include additional, more stringent, or different requirements, generators must be aware of the requirements in their state and how they differ from the US EPA rules.

In Part 2 of this series, we will review some of the more stringent rules in specific states. If you have questions about managing your hazardous waste, contact us for a free consultation.