Is Every RCRA Waste a DOT Hazardous Material?

Terms like “hazardous waste,” “hazardous material,” “hazardous substance,” and “hazardous pollutant” look very similar and are very easy to mix up. Often, a single material is identified using one or all of these terms—under different Federal programs—at some point in its lifecycle.

A DOT-regulated “hazardous material” that spills on the floor and becomes unusable might be regulated as a hazardous waste under EPA’s RCRA program, for example. A hazardous material or waste released to the environment in a quantity above a certain threshold might be regulated as a “hazardous substance” for EPCRA reporting purposes.

In this way, the same “stuff” can take on three different descriptors, depending on which regulations you are working to comply with.

Sometimes, a material can even be two things at once. That’s the situation we’re going to discuss here.

Hazardous Wastes vs. Hazardous Materials

When you generate hazardous waste on your site, eventually the time comes to ship the waste off for disposal, treatment, or recycling. You may need to ship it off site to recover valuable constituents, to meet RCRA 90- or 180-day storage time limits, or just to free up space on your site. 

While US EPA regulates hazardous wastes on your site under RCRA, there are no RCRA regulations for wastes that are out on the road (for the most part). US DOT is the agency that regulates transportation of freight, including the transport of hazardous waste. While EPA and DOT work together to harmonize their regulatory programs as much as possible, the agencies have different priorities and goals, which leads to distinctive differences. To determine which hazardous wastes are also regulated as hazardous materials in transport, we will need to bounce back and forth a bit between the two sets of regulations.

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How US DOT Defines Hazardous Materials and Hazardous Wastes

DOT’s definition of a hazardous material at 49 CFR 171.8 explicitly mentions “hazardous wastes” as one type of material subject to the DOT’s Hazardous Materials Regulations (HMR). Let’s take a look.

Hazardous material means a substance or material that the Secretary of transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and has designated as hazardous under section 5103 of Federal hazardous materials transportation law (49 U.S.C. 5103). The term includes hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 CFR 172.101), and materials that meet the defining criteria for hazard classes and divisions in Part 173 of this subchapter.

Does that mean all hazardous wastes are also hazardous materials? No, it doesn’t. To see why, we need to look at another definition from 49 CFR 171.8, that of “hazardous waste.”

"Hazardous waste, for the purposes of this chapter (i.e. the Hazmat Regulations), means any material that is subject to the Hazardous Waste Manifest Requirements of the US EPA specified in 49 CFR part 262."

Here we see that US DOT only considers your “stuff” to be hazardous waste and therefore a hazardous material if it must be shipped on a Manifest under the Federal RCRA waste requirements at 40 CFR 262. 

This means two very important things:

1. Anything excluded from the Manifest requirements is not considered a hazardous waste by US DOT when shipped. Examples include universal waste [40 CFR 261.9], used oil [40 CFR 261.6(a)(4)], and those wastes managed under the very small quantity generator (VSQG) exemption [40 CFR 262.14].
2. Items that are on a manifest for reasons other than the RCRA hazardous waste regulations at 40 CFR 262 are also not considered hazardous waste by US DOT. This includes PCB wastes (which require a manifest under TSCA but not RCRA) and wastes added to State RCRA programs that re not regulated under the Federal regulations (such as solid corrosive wastes in many states).

So, imagine a Venn diagram with two interlocking circles—hazardous wastes and hazardous materials. There is overlap, but there are also many, many materials that only belong to one category and not the other. This is more than an academic argument; the consequences of misunderstanding are real for hazardous waste generators. Failure to properly identify your waste as a hazardous material before transport can easily lead to violations in the way the shipment is packaged, labeled, marked, and documented.

It’s important for at least one other key reason, too: employee training.

Hazmat Training vs. RCRA Training

Just as EPA and DOT have different goals, different regulations, and different enforcement priorities, they also have different rules for training employees who work with these materials and/or wastes.

Under RCRA, hazardous waste personnel must be trained to properly manage the waste generated on site in full compliance with applicable US EPA regulations. For personnel at large quantity generator sites, training is required annually. [40 CFR 262.17]

US DOT also requires training, albeit a different kind. “Hazmat employees” who perform pre-transportation functions like packaging, marking, labeling, and paperwork must be trained to perform these functions properly. Employees may not perform any hazmat job until they are trained and must complete recurrent DOT hazmat training once every three years. [49 CFR 172.702]

Employees who both handle waste on site and perform pre-transportation functions must complete training on both the US DOT hazmat regulations and the US EPA RCRA hazardous waste rules.

To be confident your employees have the right training to safely perform their jobs, you must know what kind of “stuff” you are dealing with. If your wastes are regulated as hazmat for transport purposes, make sure your employees have both RCRA training and the hazardous materials training they need. The vocabulary and the requirements of 49 CFR and RCRA may be similar, but employees who manage waste on site and employees who prepare off-site shipments need distinct training to do their jobs safely.

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