Hazardous Materials Transportation: How a Carrier Can Turn into a Hazardous-Waste Generator (By Accident)

This is not your first time transporting hazardous materials. Safeco, your trucking company, is familiar with and follows every DOT regulation governing the transportation of hazardous material. It knows just what to do if a shipment of hazardous material is damaged, or begins to leak. 49 CFR 177.854 gives the answer. Essentially, if the hazardous material container is damaged and begins to leak in transit, the carrier can:

• Repair the package “in accordance with the best and safest practice known and available” and take it to the nearest available location for safe disposal. The repaired package must be safe for transportation; adequate to prevent contamination of other shipped materials on the truck; and clearly marked with the address of the consignee.
• Overpack the leaking container in a salvage drum that complies with 49 CFR 173.3(c), along with the spilled material, and transport it back to the shipper, or on to the original destination.
• If the leaking container cannot be made safe for transport, “it shall be stored pending proper disposition in the safest and most expeditious manner possible.”

What if you choose storage pending disposition, and you decide to overpack leaking hazmat containers, but store them first until you have a truckload for efficient disposal? If you satisfy DOT regulation 177.854, have you done all you need to do?

Not necessarily. Depending on how long you store hazardous materials damaged in transit, and in what quantity, you may fall under an entirely different statutory regime governing hazardous materials: the Resource Conservation and Recovery Act (“RCRA”). RCRA covers landfills, solid waste, underground storage tanks, to name a few, and most importantly for the trucking industry – hazardous waste.

Immediately when that leaking hazardous material hits the floor (or the soil or the groundwater) and can no longer be used, it is often transformed, in legal terms, into hazardous waste. And what about the sawdust or kitty litter used to soak up the liquid hazardous material? That material may become hazardous waste as well. And the nonhazardous cleaning fluids or water that mixes with the spilled hazardous materials? More hazardous waste.

CAUTION: the DOT definition of “hazardous material” does not precisely correspond with the RCRA definition of “hazardous waste”; several hundred pages of federal regulations are devoted to describing exactly what constitutes RCRA hazardous waste. This is not a situation where guesswork is adequate.

Depending upon how many pounds of hazardous waste are created by spills or leaking containers, a trucking company that handles hazardous materials can quite easily become subject to escalating levels of legal requirements under RCRA.

In addition to your DOT duties, RCRA imposes numerous requirements on any party that generates hazardous waste (yes, accidentally spilling hazardous materials makes you a “Generator”).

Depending on the monthly weight of hazardous waste generated, you could be deemed a conditionally exempt quantity generator (less than 220 lbs), a small quantity generator (220 – 2200 lbs), or a large quantity generator (over 2200 lbs), the latter of which you do not want to be. It could only be worse if you store the waste at your site for more than 90 days. You’re then a treatment, storage or disposal facility – exactly the same in the EPA’s eyes as that place with barbed wire fence that causes a county-wide evacuation when it catches fire.

But, you say, it only happened once. Surely these requirements don’t apply to a one-time situation. Yes, they do. You become an “episodic generator” during any month where you exceed the weight threshold, and are subject to the legal requirements for that weight class.

Obviously, there are a great many requirements imposed on the storage, handling and transportation of hazardous waste, and this article can only provide a generalized outline of those requirements. One basic point to keep in mind: when you suffer an accidental spill of hazardous materials, it’s time to read up on RCRA.