Daniel K. DeWitt
Michael L. Robinson
I. Introduction §4.1
II. How are Hazardous Wastes Regulated?
III. What are Hazardous Wastes?
IV. Requirements Applicable to Generators of Hazardous Waste
V. Licensed Treatment, Storage and Disposal Facilities, and Interim Status Facilities
VI. Corrective Action
Federal and Michigan laws dealing with hazardous wastes are broad in
scope, regulating everything from the generation, storage, treatment,
transportation, and disposal of hazardous wastes to the cleanup of
contamination at sites where these activities have been conducted.
Hazardous wastes include such diverse materials as waste solvents and
acids, scrap metals, used oil, fuels, paints and coatings, building
debris, pharmaceuticals, wastewaters, contaminated soil and groundwater,
and many other industrial and commercial wastes.
By far the greatest number of businesses and other entities regulated
are "generators" of hazardous waste, i.e., businesses that "generate"
or create the waste, which, in turn, triggers the regulatory process.
"Transporters," "disposal facilities," and other regulated entities are
far fewer in number and tend to be highly specialized. This chapter
therefore focuses on hazardous waste issues as they apply to generators.
Further, most legal practitioners who deal with hazardous waste law do
so on a regular basis. Because the legal practice is so complex and
specialized, much of the discussion in this chapter is summary in
nature. This chapter, however, should provide practitioners with enough
information to spot the important issues.
A. The Federal Resource Conservation and Recovery Act (RCRA) §4.2
The foundation and model for hazardous waste law is the federal Resource Conservation and Recovery Act of 1976 (RCRA), 42 USC 6901 et seq. (which is part of the Solid Waste Disposal Act), together with the RCRA regulations, which begin at 40 CFR 260.
With few exceptions, however, RCRA and the RCRA regulations do not
actually apply in most states, including Michigan. Instead, under RCRA,
most states, including Michigan, have been authorized by EPA to
implement their own hazardous waste laws and regulations "in lieu of"
federal law. These "authorized" state programs must be at least as
comprehensive and as stringent as federal law. 42 USC 6926(e).
Most state programs closely resemble RCRA or even adopt the RCRA
regulations by reference. In turn, RCRA regulations, case law and EPA
administrative guidance are often used to help interpret state
regulatory requirements. Thus, in this chapter, while the Michigan
regulation is cited as the starting point, EPA regulatory preambles,
letters, and other guidance are used to help interpret those
regulations. Typically, but not always, DNRE follows such federal
B. Michigan's Hazardous Waste Law (Part 111 of NREPA) §4.3
Michigan's hazardous waste law and regulations, closely track the federal program. They are found at MCL 324.11101 et seq.; R 299.9101 et seq.
Because the law is found in Part 111 of NREPA, the law is often
referred to as "Part 111." EPA gave Michigan initial authorization to
administer the hazardous waste program effective October 30, 1986. 51
Fed Reg 36,804 (codified at 40 CFR 272.1151).
The initial authorization has been updated several times since then as
state laws and regulations are amended to stay consistent with federal
A. Overview §4.4
Part 111 is intended to provide cradle-to-grave management of
hazardous wastes by regulating hazardous wastes from their generation
through their final treatment or disposal. Part 111 regulates by status
and waste-handling activity. Accordingly, there are regulations covering
hazardous waste (1) generators, (2) transporters, and (3) owners or
operators of treatment, storage and disposal facilities (TSDFs).
The first part of the regulations, however, deal with the complex
issue of identifying what are, and are not, regulated "wastes" and
"hazardous wastes." See R 299.9201–299.9231. In order to determine whether a material is regulated as a hazardous waste, follow this progression:
- Is the material a "waste"?
- Is the material a "hazardous" waste?
- Does an exemption apply to exclude the material from regulation?
To be a "hazardous waste" the material must first be a "waste."
Although not defined in Part 111, "waste" is defined at length in the
rules. See R 299.9202.
A "waste" is basically any "discarded material," including materials
that are abandoned, burned, incinerated or recycled, or materials that
are accumulated before being abandoned, burned, incinerated or recycled.
See R 299.9202(1).
These materials are further subdivided into "spent materials,"
"sludges," "by-products" "scrap metal" and "commercial chemical
products," all of which have distinct regulatory meanings. See R 299.9202(2); R 299.9101–9109. Several exemptions are included in the description of "waste," as described in § 4.7 and following.
On its face, the definition of "hazardous waste" in Part 111 is not very helpful:
"Hazardous waste" means waste or a combination of waste and other
discarded material including solid, liquid, semisolid, or contained
gaseous material that because of its quantity, quality, concentration,
or physical, chemical, or infectious characteristics may cause or
significantly contribute to an increase in mortality or an increase in
serious irreversible illness or serious incapacitating but reversible
illness, or may pose a substantial present or potential hazard to human
health or the environment if improperly treated, stored, transported,
disposed of, or otherwise managed. Hazardous waste does not include
material that is solid or dissolved material in domestic sewage
discharge, solid or dissolved material in an irrigation return flow
discharge, industrial discharge that is a point source subject to
permits under section 402 of title IV of the federal water pollution
control act, chapter 758, 86 Stat. 880, 33 U.S.C. 1342,
or is a source, special nuclear, or by-product material as defined by
the atomic energy act of 1954, chapter 1073, 68 Stat. 919.
MCL 324.11103(3). This very broad definition does little to tell us exactly which
materials are hazardous enough to warrant regulation as hazardous
wastes. Indeed, determining exactly which substances are regulated as
hazardous wastes under RCRA and Part 111 is anything but
straightforward. The statutory definition, however, provides a few
important limiting concepts.
First, hazardous wastes consist only of those things that are
"discarded." For example, products that are sold for money are not
"discarded," and therefore are not "wastes," but instead are used for
their intended purpose. Therefore, a new automobile rolling off the
assembly line obviously is not regulated as a hazardous waste. Less
obvious, though, are materials that are sold for recycling. DNRE
sometimes deems these materials "wastes," other times not. Recycling is
discussed in § 4.9.
Second, a waste must be "solid, liquid, semisolid, or contained
gaseous material" to be regulated as a hazardous waste. Therefore,
uncontained gases, such as air emissions from a smokestack, are not
regulated as "hazardous wastes," although they may be regulated as
hazardous air emissions. See § 4.30.
Air emissions generally are regulated under the Clean Air Act and Part
55 of NREPA, not Part 111. See Chapter 1. Many gases contained in a
cylinder, though, are regulated as wastes if discarded.
Third, in order to avoid duplicative regulation, the definition
expressly exempts a few specific materials from regulation, including
certain materials already regulated under water pollution control (see
Chapter 2) and atomic energy laws.
Within these general confines, there are two basic types of hazardous
waste: "characteristic" hazardous wastes and "listed" hazardous wastes,
discussed in § 4.5 and § 4.6.
B. Characteristic Wastes §4.5
A waste is a Part 111 hazardous waste if it displays one of four
hazardous characteristics: ignitability, corrosivity, reactivity, and
toxicity. R 299.9212.
The tests for ignitability and corrosivity are specific. Ignitable
wastes, which are relatively common, are liquid materials with a
flashpoint below 140 degrees F, such as certain waste fuels and
solvents. R 299.9212(1).
Solids and gases may also be "ignitable," but are less common.
Corrosive wastes are defined by their pH — materials with a pH equal to
or above 12.5, or equal to or below 2 — and include many acids and
bases. R 299.9212(2).
Corrosive wastes include only liquids, never solids. Many industrial
cleaners fall into the corrosive category. The reactivity characteristic
is not as specific, but generally describes materials that are very
unstable and are capable of detonating under certain circumstances. R 299.9212(3).
Materials that react violently or that generate toxic gases when mixed
with water are a relatively common example of reactive wastes. There are
no specific laboratory tests for determining "reactivity" — instead,
this waste is identified through general knowledge of the material.
The last category of characteristic wastes are "toxic" wastes. Toxic
wastes contain or leach levels of toxic constituents above the amounts
specified in Table 201a, R 299.9217,
provided below. For solids, and liquids containing material levels of
solids, a lab will subject the material to the "toxicity characteristic
leaching procedure," also known as "TCLP" or "T-clip," and compare the
resulting leachate to the constituent levels in Table 201a. For liquid
wastes that contain less than 0.5% filterable solids, the constituent
levels in the liquid itself (after filtering) are compared to Table
201a. For example, if waste-contaminated soil is subjected to the TCLP
and the resulting leachate contains lead at a level greater than 5.0
milligrams per liter, the waste soil is characteristically hazardous
EPA Hazardous Waste Number
Chemical Abstract Services Number
Extract Concentration milligrams per liter
2,4-D (2,4-Dichloro-phenoxyacetic Acid)
Endrin (1,2,3,4,10,10-hexachloro-1,7-Epoxy-1,4,4a,5,6,7,8,8a octahydro-1,4-endo, endo-5,8-dimenthano naphthalene)
Heptachlor (and its Epoxide)
Lindane (1,2,3,4,5,6-hexa-chlorocyclo-hexane, gamma isomer)
Methyl ethyl ketone
Toxaphene (C10H10C18, Technical chlorinated camphene, 67-69 percent chlorine)
2,4,5 TP Silvex (2,4,5-Tri-chlorophenoxypropionic acid)
A good starting point to determine whether a material has one of the
four hazardous characteristics discussed above is the material's
Material Safety Data Sheet (MSDS). An MSDS, however, is written for the
unused material, and so consideration must be given as to how the
material changes through use.
C. Listed Wastes §4.6
Listed wastes are wastes that have been named or described by EPA and DNRE on lists of wastes included in the regulations. See R 299.9213.
Listed wastes are assigned four-character waste codes that identify the
waste for labeling, recordkeeping, and other purposes. For example,
"still bottoms from the distillation of benzyl chloride" are designated
as "K015." Spent methylene chloride is "F002." R 299.9222 and R 299.9220.
Listed waste codes start with one of four letters: F, K, P or U.
F-listed wastes describe wastes from non-specific sources, i.e., almost
any industry can generate them. Spent solvents from cleaning operations
are the most common F-listed wastes (F001–F005). K-listed wastes result
from specific production processes, for example, bottom sediment from
wood preserving operations (K001) or ammonia still lime sludge from
coking operations (K060). P and U-listed wastes refer to pure, undiluted
and unused commercial chemical products. For example, a drum of unused
acetone being disposed because it is slightly off-specification or
because it is simply no longer needed is designated U002. R 299.9225.
To be a P or U-listed waste, the chemical listed must be pure,
undiluted, or be the sole active ingredient in the material (chemical
mixtures are never P or U-listed wastes).
1. Exemptions from the Definition of "Waste" §4.7
Michigan regulations expressly list a number of materials that are not "wastes" and therefore are not regulated under Part 111. R 299.9204(1). This list should always be consulted as a starting point. Some of the more common exemptions include:
- Domestic sewage and any mixture of domestic sewage and other wastes
that passes through a sewer system to a publicly owned treatment works
- Industrial wastewater point source discharges regulated under the
federal Clean Water Act (except for discharges into injection wells).
- "Excluded scrap metal" that is being recycled. Such exempt scrap
metal typically includes turnings, cuttings, borings and punchings from
metal fabricating processes, as well as any other metal that has been
separated out by metal type for commercial recycling.
Other common exemptions from the meaning of "waste" are discussed in § 4.8 through § 4.12.
A legitimate "product" or "coproduct" of a production process is not a
"waste" subject to regulation. Determining what is the intended
"product" of a production process is typically simple — it is the
intended result of the production process that is either sold or used as
a raw material or intermediate material in other processes. Determining
whether something is a legitimate secondary or "coproduct" of a
production process, however, is less straightforward.
Neither EPA nor DNRE define "coproduct." Rather, "by-product" is defined as something other than a coproduct. 40 CFR 261.1(c)(3); R 299.9101(bb).
In its preamble to the rule revising the definition of solid waste, EPA
described a coproduct as "a material produced for use by the general
public and suitable for end use essentially as-is." Hazardous Waste
Management System; Definition of Solid Waste, 50 Fed Reg 614
(January 4, 1985). Further, such materials are "produced intentionally"
and "are ordinarily used as commodities in trade by the general
public." Id. In a 1993 letter, EPA pointed out that whether a
fuel component is a coproduct versus a by-product depends on several
whether the material constitutes a separate production stream,
whether it is fit for end use essentially as is or must undergo
substantial additional processing prior to use, whether it is residual
in nature or a highly processed material intentionally produced for sale
to the public, whether a legitimate market exists for the material,
Letter from EPA to Susan S. Ferguson (November 3, 1993). Overall,
several factors may be relevant when determining whether a material is a
legitimate "coproduct," including whether such materials (a) are
handled and managed similarly to other products, (b) are ordinarily used
as commodities in trade by the general public, (c) are fit for end use
essentially as is, (d) are produced intentionally and are a separate
production stream, (e) contain toxic impurities not typically found in
virgin product, (f) meet product specifications and quality control
procedures before being sold, and (g) when reused, whether such
materials replace the same (albeit virgin) material.
As set forth in Michigan's regulations: "Materials that are reclaimed
from wastes and that are used beneficially are not wastes and hence are
not hazardous wastes . . . unless the reclaimed material is burned for
energy recovery or used in a manner constituting disposal." R 299.9203(3); see also 40 CFR 261.3(c)(2).
In addition, "[t]he recycling process itself is exempt from regulation,
except as provided in subdivision (d) of this subrule." R 299.9206(1); see also 40 CFR 261.6(c)(1).
For example, waste solvents that are immediately distilled and
beneficially reused are not considered wastes upon exiting the
"Materials" that are "used or reused as ingredients in an industrial
process to make a product, provided the materials are not being
reclaimed" or are "used or reused as effective substitutes for
commercial products" are exempt, the reason being that these materials
are more product-like than waste-like. R 299.9202(3). As in § 4.9, the exemption does not apply to use as fuel or use constituting disposal. R 299.9202(4); see also 40 CFR 261.2(e).
The language of the exemption itself, as well as some EPA guidance
documents, limits this exemption to situations in which the material is
"not being reclaimed." US Envtl Prot Agency RCRA/Superfund Hotline
Monthly Summary (May 1992). Although somewhat unclear, other EPA
guidance states that materials may be reclaimed, but, in such a case,
the exemption does not attach until after the reclamation process is complete. Letter from EPA to T.L. Nebrich, Jr. (March 30, 1994).
Due to conflicting interpretations regarding whether reclamation is
allowed, this exemption should be used with caution when materials need
to be reclaimed before they are reused, or an agency interpretation
obtained before relying on the exemption.
There are three exemptions commonly referred to as "closed loop": the
first does not involve reclamation, the second does, and the third is a
variance that DNRE can grant on a case-by-case basis. The closed loop exemption without reclamation states:
(1) Materials are not solid wastes when they can be shown to be
recycled by being: . . . (iii) Returned to the original process from
which they are generated, without first being reclaimed or land
disposed. The material must be returned as a substitute for feedstock
materials . . . .
40 CFR 261.2(e)(1)(iii).
This relatively straightforward exemption covers materials that are
reused over and over again without any treatment or reclamation, for
example, recirculating coolant.
Perhaps the most important "reclamation" exemption is the "closed
loop with reclamation" exemption. This exemption allows spent or
secondary materials to be cleaned up and returned to the production
process without being regulated as wastes. Specifically:
The following materials are not wastes . . . (h) Secondary materials
that are reclaimed and returned to the original production process or
processes in which they were generated and where they are reused in the
production process, if all of the following provisions apply: (i) Only
tank storage is involved, and the entire process through completion of
reclamation is closed by being entirely connected with pipes or other
comparable enclosed means of conveyance. (ii) The reclamation does not
involve controlled flame combustion, such as occurs in boilers,
industrial furnaces, or incinerators. (iii) The secondary materials are
not accumulated in such tanks for more than 12 months without being
reclaimed. (iv) The reclaimed material is not used to produce a fuel and
is not used to produce products that are used in a manner that
R 299.9204(1); see also 40 CFR 261.4(a)(8).
EPA has justified this exemption based on the reasoning that "these
types of operations are best viewed as part of the production process,
not as a distinct waste management operation." Hazardous Waste
Management System; Standards for Hazardous Waste Storage and Tank
Treatment Systems, 51 Fed Reg 25422,
25,441 (July 14, 1986) (Tank Rule). The exemption has also helped
promote the in-house recycling and reuse of numerous production fluids,
including solvents, rinse waters, oils, carriers and other chemical
solutions, in a relatively safe (closed) fashion, to the benefit of the
Two issues often combine, however, to negate the applicability of the
exemption. The first is whether the system is truly "closed." The
second is whether the materials are returned to the original production
On the first issue, EPA has provided mixed guidance, sometimes in the
same document. On one hand, the regulations clearly require only that
the system be closed or piped "through completion of reclamation." On
the other hand, EPA appears to require at times that the entire loop be
closed from the point of generation to the point of return to the
production process (which in fact describes most closed loop systems). For example, in the 1986 preamble promulgating the exemption, EPA noted:
The decisive factors here, in the Agency's view, [include] the closed
nature of the process (hard connections from point of generation to point of return to the original process), [and the] integral relationship of the reclamation steps to production processes . . . .
Tank Rule, 51 Fed Reg at 25,443 (emphasis added). Although made in a
somewhat general context, this statement supports the proposition that
the entire "loop" must be closed from beginning to end. A few years
later, EPA quoted this same statement to support its conclusion that
secondary materials trucked to a recycling site could not qualify for
the closed loop exemption. Memorandum from EPA to David Ullrich
(September 12, 1989). Note, however, that EPA was dealing with a
situation where the "gap" in the loop (i.e., the truck) came before
reclamation, not after. Nonetheless, EPA did not focus on the
distinction. In US Envtl Prot Agency, RCRA Orientation Manual III-11 (2003), however, EPA describes the closed-loop exemption as excluding "spent materials that are reclaimed and returned to the original process in an enclosed system of pipes and tanks" provided that "the entire process, through reclamation, is closed to the air (i.e., enclosed)" (emphasis added). These two requirements appear to be at odds.
On the second issue, closely related to whether the process is
"closed" is whether the material is "returned to the original production
process." Generally, the "original production process" refers to the
production process that generated the waste, but there is some room to
interpret the requirement broadly. Cf Letter from US Envtl Prot Agency to Mr. Verrill Norwood, Jr. (October 29, 1985). In the 1986 rule promulgating the exemption, EPA noted:
To be considered as being 'returned to the original process,' the
reclaimed material need not be returned to the same unit operation from
which it was generated, but only to the same part of the process. In
addition, if the same material is reused in a number of production
operations at an integrated plant, and the secondary material is
reclaimed in a common reclamation operation, the reclaimed material can
be returned to any process which originally used the material . . . .
By production process, the Agency intends to include those activities
that tie directly into the manufacturing operation or those activities
that are the primary operation at an establishment . . . .
Tank Rule, 51 Fed Reg at 25,442. In a guidance letter, EPA noted that
"production process" entailed "those activities that tie directly into
the manufacturing operation or those activities that are primary to the
operation of an establishment. It does not include ancillary or
secondary activities that are carried out as part of the total
activities." Memorandum from US Envtl Prot Agency to Mr. Robert L. Duprey (November 28, 1986).
While the material need not be reused in exactly the same way as its
original use, EPA has made clear that ancillary uses will not qualify
for the exemption:
The material that is returned after having been reclaimed can be
reused as a feedstock, as a purifying agent to remove contaminants from
feedstock, and can also be used for other purposes, including as a
reaction medium to dissolve or suspend chemicals, or as a reactant to
facilitate chemical reactions.
Tank Rule, 51 Fed Reg at 25,442. But in response to a comment that
EPA's definition would exclude solvents used for dry cleaning or
equipment cleaning purposes, EPA stated:
EPA believes that solvents returned for use as cleaning agents in dry
cleaning operations will be considered to be reused in the production
process (as described earlier) since they are used as the basic raw
material in the process (in this case, cleaning). On the other hand,
materials used to clean equipment (for example, solvents returned and
reused as degreasers) are not normally considered to be reused in a
production process. The solvents do not contribute directly to the
production process, but rather perform an ancillary function of
Id. Finally, it appears that 100% of the reclaimed material
must be reused for the exemption to apply. In 1997, EPA considered
whether a system that recovered spent ethyl acetate and xylene qualified
for the closed-loop exemption. Due to production constraints, only 80%
of the xylene recovered was reused on site — the remaining 20% was sold
for use off-site. EPA reasoned that because less than "100% of the
product that is recovered is returned to the original process," the exemption did not apply. Letter from US Envtl Prot Agency to Mr. Mitchell L. Press (June 3, 1997). Accordingly, a business that wishes to rely on this exemption should ensure that all of the material recovered is reused.
2. Exemptions from the Definition of "Hazardous Waste": High Volume Low Toxicity Wastes §4.13
contains a long list of materials that, while "wastes," are not
"hazardous wastes" and therefore are not regulated by Part 111. This
list should be consulted when determining whether a particular material
Perhaps the most important materials on this list are various
high-volume, relatively low toxicity wastes associated with (i) mining
and mineral processing, (ii) cement manufacturing, (iii) fossil fuel
combustion, and (iv) oil and gas exploration. The first three categories
are sometimes referred to as the "Bevill" exempt wastes and the fourth as the "Bentson" exempt wastes, in reference to Congressmen who helped pass the exemptions.
Specifically, Rule 299.9204 exempts the following materials:
(2) The following wastes are not hazardous wastes for the purposes of Part 111 of the act and these rules:
. . .
(c) Mining overburden that is returned to the mine site.
(d) Fly ash waste, bottom ash waste, slag waste, and flue gas
emission control waste that is generated primarily from the combustion
of coal or other fossil fuels . . . .
(e) Drilling fluids, produced waters, and other wastes that are
associated with the exploration, development, or production of crude
oil, natural gas, or geothermal energy.
. . .
(h) Waste from the extraction, beneficiation, and processing of ores
and minerals, including coal, phosphate rock, and overburden from the
mining of uranium ore . . . .
(j) Cement kiln dust waste . . .
Generally, only the primary wastes generated by these activities are
covered by the exemptions. Under current EPA guidance, EPA holds that
waste from "ancillary" operations are not covered by the Bevill
exemption because such wastes are not "uniquely associated" with exempt
activities; for example, the wastes are not "'from' mining or mineral
processing." Land Disposal Restrictions Phase IV, 63 Fed Reg 28555, 28,578 (May 26, 1998). According to EPA:
One must consider the extent to which the waste originates or derives
from processes that serve to remove mineral values from the ground,
concentrate or otherwise enhance their characteristics or remove
impurities, and the extent to which the mineral recovery process imparts
its chemical characteristics to the waste.
Id. at 22,578–79. DNRE has adopted this "uniquely associated" approach. See, e.g., Letter from EPA to Jim Sygo (DEQ) (May 11, 1994). In this 1994 letter to the former DEQ (now DNRE), EPA expounded in regard to mining wastes:
The key consideration for establishing that a waste is uniquely
associated is determining whether or not the waste originates primarily
from, or, at the least, is significantly influenced by contact with
ores, minerals, or beneficiated ores and minerals.
. . .
Even wastes that may come into contact with parts of the mineral feed
stream, e.g., cleaning wastes, are not uniquely associated, because
their fundamental character does not arise from such contact.
Id. This logic would seem to apply to gas, oil, or
geothermal drilling and exploration-exempt wastes as well. Laboratory
and shop wastes are not Bevill exempt, even if generated at a mine or
exploration site, because such wastes are associated with any number of
industrial activities, not just mining, and therefore are deemed to be
"ancillary" by EPA. 63 Fed Reg at 28,592–93
(maintenance shop wastes and laboratory wastes are not exempt). See US
Envtl Prot Agency RCRA/Superfund Hotline Monthly Summary (November 1999)
(laboratory wastes are not exempt); Memorandum from EPA to Carol Rustin
(March 19, 1999) (laboratory wastes are not exempt).
3. Manufacturing Process Unit and Related Exemptions §4.14
EPA and DNRE have exempted from most hazardous waste requirements
wastes generated in product or raw material storage tanks and pipelines,
manufacturing process units (MPUs) and
non-waste-treatment-manufacturing units (NTMUs). Generally, this
exemption applies until the material "exits the unit":
A hazardous waste which is generated in a product or raw material
storage tank, a product or raw material transport vehicle or vessel, a
product or raw material pipeline, or a manufacturing process unit or an
associated non-waste-treatment-manufacturing unit, is not subject to
regulation under parts 262 through 265 . . . . until it exits the unit
in which it was generated, unless the unit is a surface impoundment, or
unless the hazardous waste remains in the unit more than 90 days after
the unit ceases to be operated for manufacturing, or for storage or
transportation of product or raw materials.
40 CFR 261.4(c). This exemption makes sense, because it would be impossible to comply with hazardous waste "storage" requirements (see § 4.21), for example, for wastes that are still moving about in process equipment.
According to EPA, MPUs are typically "tank-like" devices associated
with production processes that are designed to hold valuable raw
materials and therefore are "capable of holding, and are typically
operated to hold, the hazardous wastes which are generated in them,
until the wastes are purposefully removed." Hazardous Waste Management
System; General and Identification and Listing of Hazardous Waste, 45
Fed Reg 72,025 (October 30, 1980). Thus, according to EPA, hazardous
wastes in such devices present less risk of a release:
these hazardous wastes are contained against release into the
environment (except, of course, when abnormal circumstances such as a
fire or explosion occur) and the risks they pose to human health or the
environment are very low and are only incidental to the risks posed by
the valuable product or raw material with which they are associated.
Id. Therefore, there is less need for regulation of MPUs. Id. Examples of MPUs provided by EPA include distillation columns, flotation units, and discharge trays. Id. Comparably, NTMUs are systems that manage or treat non-wastes — cooling towers are one example provided by EPA. Id. EPA has determined that hazardous wastes are not regulated until they are removed from MPUs and NTMUs. Letter from U.S. Envt'l Prot. Agency to Mr. Jack H. Goldman (March 8, 1995).
A key defining characteristic of MPUs and NTMUs is that the units are
connected to, and manage or treat, production process streams, not
waste streams. EPA makes this apparent and important distinction in the
hazardous waste Subpart BB final rule preamble:
Under 40 CFR 261.4(c),
hazardous wastes that are generated in process-related equipment such
as product or raw material storage tanks or pipelines are exempt from
RCRA regulation. This exemption applies until the waste is physically
removed from the unit in which it was generated . . . . This exemption
is not affected by this rule [i.e., Subpart BB]. Therefore, units such
as product (not hazardous waste) distillation columns generating
hazardous waste still bottoms containing organics are not subject to the
standard while the wastes are in the product distillation column.
However, distillation columns that receive hazardous wastes and that are
used in hazardous waste treatment (i.e., hazardous waste management
units) are subject to this standard . . . .
Hazardous Waste Treatment, Storage and Disposal Facilities—Organic
Air Emission Standards for Process Vents and Equipment Leaks, 55 Fed Reg
at 25,454, 25,467 (June 21, 1990). The process unit exemption also
exempts from regulation a "product or raw material pipeline," although
there is little helpful guidance shedding light on the scope of this
exemption. EPA added the phrase to the MPU exemption after numerous
parties pointed out that major pipeline systems are used throughout the
United States to transport crude oil, chemicals and other valuable raw
materials and products. Hazardous Waste Management System;
Identification and Listing of Hazardous Waste, 45 Fed Reg 80,286
(December 4, 1980). According to EPA, "[p]ipelines, like product storage
tanks, are designed and operated in a manner to hold the material and
to prevent releases to the environment," and therefore adding the
exemption made sense. Id.
4. Use Constituting Disposal §4.15
A number of the reuse exemptions discussed in § 4.9 and § 4.10
do not apply to materials that are "used in a manner constituting
disposal, or used to produce products that are applied to the land." 40 CFR 261.2(e)(2); R 299.9202(4).
EPA guidance documents, federal register regulatory preambles, and
state and federal case law provide little helpful guidance concerning
the meaning of "use constituting disposal" or "applied to the land." As
background, the restriction stems from concerns that many reuse
practices involving land disposal are "virtually the equivalent of
unsupervised land disposal, a situation RCRA is designed to prevent."
Hazardous Waste Management System: General, 48 Fed Reg 14,472, 14,484
(April 4, 1983). The restriction grew from a few high-profile and very
damaging waste disposal cases, particularly the use of distillation
bottoms containing dioxin as a dust suppressant in Times Beach,
Missouri. Land Disposal Restrictions for First Third Scheduled Waste, 53
Fed Reg 31,138 (August 17, 1988).
Although EPA will often refer to the practice as placing wastes "directly on the ground," Id.
(emphasis added), it is clear that indirect placement may also be
restricted. Examples of the types of practices prohibited include
incorporating wastes into dust suppressants, fertilizers, asphalt,
concrete, fill materials, road base materials, top grade road materials,
landscaping timbers, fence posts, railroad ties, and well solvent. At
least some juxtaposition with the ground appears to be required. For
example, use of materials as "roofing granules" is not use constituting
disposal, even though such materials are obviously exposed to the
weather. Letter from US Envtl Prot Agency to Mr. William Guerry (December 1, 1992).
In any case, practitioners should be wary and should exercise caution
whenever a situation presents itself in which reclaimed waste materials
will be used in such a way that exposure to the environment is possible.
5. Potential New Rule Defining Solid Waste §4.16
Many of the exemptions and issues discussed in § 4.7 through § 4.15
may eventually become moot. In October 2008, EPA published a final rule
revising the definition of solid waste to exclude materials from
regulation that are generated and legitimately reclaimed under the
control of the generator, or that are generated and transferred to
another company for reclamation under specific conditions. Revisions to
the Definition of Solid Waste, 73 Fed Reg 64668
(October 30, 2008). At the time this chapter was written, however, the
new rule had not yet been adopted by DNRE (and, accordingly, is not
effective in Michigan), and was subject to several court challenges at
the federal level. If the rule survives the judicial challenges, it is
expected that DNRE will adopt the new rule, which will significantly
simplify and encourage waste recycling in Michigan.
6. Mixture, Derived-From and Contained-In Rules §4.17
Complicating the identification of "hazardous wastes" is that fact
that hazardous wastes are not limited to the particular hazardous wastes
themselves, but can also include mixtures of hazardous waste with other
materials or the residues from the handling of hazardous waste.
For example, per the "mixture rule," when solid wastes are mixed with
hazardous wastes, the resulting mixture is often a hazardous waste. The
purpose of the mixture rule is to discourage waste dilution as a form
of waste treatment. When a listed hazardous waste is mixed with a solid
waste, the resulting mixture is a listed hazardous waste, except in very
When a characteristic hazardous waste is mixed with a solid waste,
however, the resulting mixture is hazardous only if it exhibits a
characteristic. Rule 299.9203(1).
A unique area of complication arises in regard to some of the Bevill exempt wastes discussed in § 4.13. The Bevill exemption has its own unique mixture rule:
(2) The following wastes are not hazardous wastes for the purposes of part 111 of the act and these rules:
. . .
(i) Mixtures of a waste that is excluded from regulation pursuant to the provisions of subdivision (h) of this subrule and any other waste that exhibits a hazardous waste characteristic pursuant to the provisions of R 299.9212 and that is not listed pursuant to the provisions of R 299.9213 or R 299.9214,
such that the resultant mixture does not exhibit any hazardous waste
characteristic that would have been exhibited by the non-excluded waste
alone if the mixture had not occurred.
R 299.9204(2)(i). This rule is difficult to decipher, but the following examples are illustrative:
Characteristically hazardous waste due to chromium content.
Bevill exempt waste (otherwise characteristically hazardous for lead).
If mixture is characteristically toxic for chromium, the mixture is
hazardous. If only characteristically toxic for lead, the mixture is
Characteristically hazardous waste due to chromium content.
Bevill exempt waste (otherwise characteristically hazardous for chromium).
If the mixture is characteristically toxic for chromium, then the mixture is hazardous.
Characteristically hazardous waste due to chromium content.
Bevill exempt waste (otherwise characteristically hazardous for lead and chromium).
If mixture is characteristically toxic for chromium, the mixture is
hazardous. If only characteristically toxic for lead, the mixture is
Listed hazardous waste.
Bevill exempt waste (otherwise characteristically hazardous for lead).
This mixture will almost always be hazardous waste.
As the table illustrates, mixing even small amounts of non-exempt
hazardous wastes with similar Bevill-exempt wastes risks nullifying the
An important consideration in applying the mixture rule is that it applies only when hazardous waste is mixed with solid waste.
It does not apply when hazardous waste is mixed with other non-waste
media, such as soil or groundwater. In such a case, the "contained in"
rule applies. The "contained-in" policy is an interpretation, first
articulated in the 1980s, of the rule that "a hazardous waste will
remain a hazardous waste . . . ." See e.g., R 299.9203(3). Although never promulgated as law, the contained-in policy was upheld at the federal level in Chem Waste Mgt v. Environmental Protection Agency, 276 US App DC 207;
869 F2d 1526 (1989). The Sixth Circuit (which includes Michigan) has
not yet ruled on the policy's validity. According to EPA and DNRE's
interpretation of the rule, soil that contains characteristic hazardous
waste due to a spill is hazardous waste only if it exhibits a
characteristic of hazardous waste. Soil that contains a listed hazardous
waste, however, is itself a listed hazardous waste unless the generator
can show that all contaminants are below Michigan's former "Type B"
cleanup criteria, which generally denote soils that are safe for any use.
EPA recognizes that knowing the source of contamination is often
necessary to determine whether the media contains listed hazardous
waste. Realizing this determination is often difficult or impossible to
make, in 1998 EPA clarified the standard for determining when
contamination is caused by listed waste, and established a presumption
in favor of non-listed status:
Where a facility owner/operator makes a good faith effort to
determine if a material is a listed hazardous waste but cannot make such
a determination because documentation regarding a source of
contamination, contaminant, or waste is unavailable or inconclusive, EPA
has stated that one may assume the source, contaminant or waste is not
listed hazardous waste and, therefore, provided the material in question
does not exhibit a characteristic of hazardous waste, RCRA requirements
do not apply.
Memorandum from US Envtl Prot Agency on Management of Remediation
Waste under RCRA to RCRA Senior Policy Managers (October 1998).
Therefore, if the evidence is inconclusive, the waste may be presumed to
be non-listed. DNRE uses this standard.
Finally, any waste, including treatment sludge or residue, generated
or "derived from" the treatment, storage, or disposal of a hazardous
waste, is, as a general rule, itself a hazardous waste. R 299.9203(3).
For example, a still bottom or sludge that results from the recycling
of a hazardous waste solvent will generally carry the same waste code as
that solvent. Waste derived from a characteristic waste, however, is a
hazardous waste only if it exhibits a characteristic. Waste derived from
the treatment, storage or disposal of listed waste, however, is almost
always listed, unless the original listing is based solely on the
ignitable, corrosive, or reactive nature of the waste (this applies most
typically to F003 waste).
A corollary rule favorably applies to exempt wastes. Generally, any
waste, including sludge or residue, generated or derived from the
treatment, storage, or disposal of an exempt waste, is itself
an exempt waste. Therefore, a sludge generated through treatment of
Bevill-exempt waste is itself exempt, even if the sludge qualifies as
characteristically hazardous (so long as the characteristic came from
the exempt waste). See, e.g., US Envtl Prot Agency RCRA/Superfund
Hotline Monthly Summary (February 1986) (quench water derived from
contact with exempt coal ash is itself exempt); US Envtl Prot Agency
RCRA/Superfund Hotline Monthly Summary (February 1985) (caustic sludge
derived from the treatment of Bevill-exempt mine drainage is itself
E. Universal Wastes §4.18
Universal wastes are common hazardous wastes that a generator can
choose to manage in a less complex manner. Universal wastes include
antifreeze, electric lamps (including fluorescent, sodium vapor, mercury
vapor, neon and incandescent lamps), batteries, certain pesticides and
pharmaceuticals, and certain devices containing mercury (including
thermostats, switches, thermometers, manometers, barometers, and various
medical devices). There are several advantages to managing wastes as
universal wastes. When wastes are managed as universal wastes, the waste
volume is not counted when determining hazardous waste generator
status, hazardous waste manifests and land disposal restriction forms
are not required for shipping universal wastes, labeling requirements
are simpler, and materials can be stored for up to one year, which is
significantly longer than the general 90 day period allowed for
hazardous wastes. Overall, companies with universal wastes must meet the
following requirements: ensure that there are no spills or releases of
the material (e.g., provide a sufficient container for the material,
keep it closed and store it in a safe place), label the container
"Universal Waste" (and add a description of the type of waste), use an
approved waste handler to ship the material off-site, and keep records
showing that the material has not been stored for more than one year
(often by listing a start accumulation date on the container label). For
more specific requirements, see R 299.9228.
F. Used Oil §4.19
For hazardous waste purposes, "used oil" includes all synthetic oils and all oils refined from crude oil
that, as a result of use, are contaminated by physical or chemical
impurities. Like universal wastes, used oil that is properly managed is
not counted as a "hazardous waste." Used oil must be recycled — if it is
not, then it must be managed as waste and, if appropriate, as hazardous
waste if it is characteristically hazardous or meets a hazardous waste
listing description (e.g., because it has been mixed, even
inadvertently, with listed waste).
To discourage businesses from disposing of used solvents in their
used oil, EPA and DNRE consider mixtures of used oil and halogenated
solvents (e.g., trichloroethylene) a hazardous waste. Therefore,
generators of used oil are required to determine whether their used oil
has been inadvertently mixed with such solvents. Any used oil that
contains greater than 1,000 parts per million (ppm) total halogens is
presumed to be hazardous waste unless proven otherwise. Many used oil
recyclers, as part of their service, run total halogen tests on any used
oil that they pick up. The entity generating the used oil should keep a
copy of such tests to prove that its used oil does not exceed the 1,000
Otherwise, to meet used oil requirements under Part 111, a generator must:
- Recycle all used oil through a legitimate recycling company.
- Store all used oil in containers and tanks that are in good
condition, without any leaks, structural damage, or deterioration. All
such containers and tanks must be
- closed (e.g., bung tightly in place) when not being filled or emptied,
- clearly marked "Used Oil" at all times, and
- stored in a way that is protected from weather, fire, physical damage, and vandals.
- Use a liquid industrial waste manifest for all shipments of used oil off-site.
Note also that any scrap metal that contains free-flowing used oil
should be managed as "used oil." Therefore, it is best to drain off oil
from scrap metal so that the oil can be managed separately (and the
scrap metal recycled).
A. Waste Counting §4.20
Once a company or other entity determines that it generates or
creates either a characteristic or a listed hazardous waste, the entity
must "count" the waste to determine how much waste the entity generates
in any given calendar month. This calculation will determine the size
category of the generator and the corollary requirements applicable to
the generator, with generally more requirements applying as more wastes
Hazardous wastes are counted at their "point of generation." As a
general rule, if a waste has not yet been "generated," it is not
regulated and need not be counted. In one document, EPA notes that the
point of generation "is usually defined as the point at which a
generator first determines that a material is no longer useful (or the
point at which the generator decides to discard the material)." In the
same document, though, EPA admits "[d]ue to the complicated nature of
some hazardous waste generating systems, it can be difficult to
determine the precise point at which a hazardous waste is generated." US Envtl Prot Agency, Land Disposal Restrictions: Summary Of Requirements 8-1 (August 2001).
Examples provided by EPA include when process equipment is cleaned
(generating a wastewater), when waste is removed from pollution control
equipment, and when paint or solvent is discharged from a paint spray
gun into a collection funnel. Letter from US Envtl Prot Agency to Mr. John Albert Slaughter, Jr. (December 30, 1986); Letter from US Envtl Prot Agency to Mr. James A. Lively (October 19, 1995);
Memorandum from US Envtl Prot Agency to RCRA Senior Policy Advisors,
Regions I–X. Further, EPA generally places the point of generation
somewhere before the waste commingles with other materials, which could
change the characteristics of the waste. See Memorandum from EPA to Stephanie Wallace (July 31, 1991).
As noted in § 4.15,
due to spills and other unintentional releases, soil and groundwater
can be hazardous waste. Because such media in their natural state are
obviously not "waste" (even if contaminated) and therefore cannot be
"hazardous waste," a special "point of generation" rule applies. Such
natural media are "generated" only when they are "actively managed" —
typically, by being excavated or pumped from the ground. Therefore, the
"point of generation" is the excavation or pumping activity. On the
other hand, managing such contamination "in place," for example, by
installing an air sparging system to treat contaminated groundwater,
does not qualify as "active management" or the generation or treatment
of hazardous waste.
B. Generator Size Categories §4.21
All facilities generating hazardous waste are divided into three size
categories for regulatory purposes: conditionally exempt small quantity
generators (CESQGs), small quantity generators (SQGs), and large
quantity generators (LQGs).
Generates less than 100 kg (220 lbs) of hazardous waste per month
Generates more than 100 kg (220 lbs) but less than 1000 kg (2,200 lbs) of hazardous waste per month
Generates over 1000 kg (2,200 lbs) of hazardous waste per month
For perspective, twenty-six gallons of water (about half a drum)
weighs about 100 kilograms; 1000 kilograms is equivalent to about five
drums of water. Generators make a common mistake by counting the amount
of waste shipped off-site in a month instead of the amount of waste
generated per month.
Because the amount of waste generated from one month to the next will
vary, generators may find themselves regulated as a different category
each month. In such a case, a generator may want to comply with the
highest applicable category for every month, instead of trying to switch
from one set of requirements to the next. Alternatively, the generator
should investigate ways to average out or reduce waste generation in
every month so that it can always qualify for the lower applicable
1. Large Quantity Generators §4.22
Large quantity generators are subject to the most requirements.
Once a generator has properly identified the hazardous waste
generated on site and has determined that LQG requirements apply, the
first task is to ensure that all hazardous wastes are properly stored.
An LQG may store hazardous waste on site for only 90 days. Storage is
typically done in containers (i.e., a portable storage device, such as a
drum) or tanks (a fixed-in-place storage device). All containers or
tanks must be protected, as appropriate, from weather, fire, physical
damage and vandals. Therefore, it is generally not acceptable to leave
hazardous waste drums outside in unfenced and open areas. Sufficient
aisle space must be provided between containers and tanks to allow
access to inspect the storage area as well as respond to emergency
For containers, the following requirements apply:
- All containers of hazardous waste must be marked "Hazardous Waste"
and be clearly labeled with the date that accumulation began and the
waste's hazardous waste number (e.g., D001, F003, etc.).
- The generator must provide secondary containment (curbing, sloping
floors, etc.) to contain potential spills, with a volume equal to the
greater of 10% of the hazardous waste volume stored in the area, or 100%
of the largest container in that area.
- All containers must be kept closed except when necessary to add or remove waste.
- All containers must be in good condition and not leaking. LQGs must
verify that containers are not leaking, bulging, rusting, damaged or
- All containers must be compatible with the wastes stored in them.
Therefore, for example, LQGs should verify that strong caustics and
acids are not stored in metal drums (without liners).
- Containers must be inspected weekly, with written documentation of such inspections.
- All containers holding ignitable (D001) or reactive (D003) wastes
must be located at least 50 feet from the facility's property line.
See generally R 299.9306; 40 CFR 262.34(a)(1) and 40 CFR 265.170 et seq.
The requirements for tanks mirror those for containers, except for these differences:
- All tanks of hazardous waste must be marked "Hazardous Waste."
- The generator must provide secondary containment for all hazardous
waste tanks holding liquids, consisting of either a liner, vault, or
- for a liner, verify that the liner will hold 100% of the tank's capacity and that the liner does not show any cracks or gaps,
- for a vault, verify that the vault will hold 100% of the tank's
capacity and that the vault is impermeable with water stops at any
- for double tanks, verify that the tank has a leak detection system capable of detecting a leak within 24 hours.
- All threaded connections (i.e., not welded, plastic heat fused,
etc.) associated with tank ancillary equipment must also have secondary
containment (e.g., a trench, jacketing, double walled pipes, etc.).
- The generator must have a written tank assessment conducted and
certified by an independent and certified engineer stating that the
tanks have sufficient structural integrity and are acceptable for the
type of waste being stored/treated.
- All hazardous waste tanks must have overfill protection equipment,
such as level sensing devices or automatic feed shut-off valves.
- Any leaks into secondary containment devices must be drained or
cleaned up within 24 hours, or as soon as possible (apparently, that
includes more than 24 hours later)
- All tanks and overfill protection equipment must be inspected daily, evidenced by written documentation.
See generally R 299.9306; 40 CFR 262.34(a)(1) and 40 CFR 265.190 et seq.
It is often impracticable for small amounts of hazardous waste to be
delivered immediately into a tank or container meeting the requirements
described in § 4.25 and § 4.26.
For instance, an employee at a paint booth may generate a few ounces of
spent solvent several times a day. It makes little sense to have the
employee make several trips throughout the day to a hazardous waste
container area. Recognizing this, EPA and DNRE both provide for the
"satellite accumulation" of hazardous wastes in containers at or near
the point of generation. Satellite accumulation allows a generator to
accumulate small amounts of waste, up to fifty-five gallons total, at
the place of generation without having to meet all storage requirements.
Such a container must be marked "hazardous waste," be in good
condition, and must be kept closed except when waste is being added. It
is also a good idea to mark the container "satellite accumulation" so
that a government inspector will instantly understand the purpose of the
container. Once any satellite accumulation container accumulates
fifty-five gallons of hazardous waste, the container must then be marked
with the date that the fifty-five gallon amount was first met, and must
be removed to a waste storage area with secondary containment within
three days of that date (at which point, all other waste storage
requirements apply). R 299.9306(2); 40 CFR 262.34(c).
Large quantity generators must ensure that all employees that handle
or are responsible for hazardous wastes are properly trained. New
employees must be trained within six months of hire and all employees
must receive annual refresher training. Such training must cover the
proper management of the waste as well as effective responses to
hazardous waste emergencies. The generator must keep a record showing
the job title and description for each employee by name, a written
description of the type and amount of both introductory and refresher
training that will be given to each employee, and verification that each
such employee has actually received the required training (e.g.,
provide a sign-in sheet). Training records must be kept for each
employee for three years after the employee last worked at the facility.
See generally R 299.9306(1)(d); 40 CFR 265.16.
Aside from general training, the LQG facility must be prepared for a
hazardous waste spill or other emergency. In this regard, an "emergency
coordinator" must be on premises or on-call at all times. More than one
employee may share this position to ensure that someone is always
available, although a "primary" coordinator should be designated. It is
the emergency coordinator's responsibility to direct activities in the
case of an emergency. Employees must have quick access to the emergency
coordinator's contact information, which must be posted near a telephone
accessible to employees, along with a description of the location of
fire extinguishers and spill control materials, the location of fire
alarms (if present), and the telephone number for the local fire
To assist the emergency coordinator, LQGs must have on hand at all
times an up-to-date written "contingency plan" that describes actions to
be taken in an emergency. The contingency plan must describe
arrangements made with local police and fire departments, hospitals, and
other relevant state or local coordinators; list the emergency
coordinator's name, address and telephone number; describe the location
of emergency equipment on site;
and set forth an evacuation plan (if evacuation could be necessary,
depending on the types of wastes handled on site). The plan must be
submitted to any emergency organization that could be called upon to
assist, most typically the local fire department. If wastes on site pose
a significant fire hazard, it is a good idea to invite the fire
department for regular visits so that fire department staff stay
familiar with the site and can develop appropriate response strategies.
whenever an incident requiring the implementation of the facility's
contingency plan occurs, the facility must record the details of the
incident in its records and notify DNRE within 15 days. If there has
been a release, fire, or explosion that could threaten human health or
the environment outside the facility, the facility must immediately
notify local, state and national emergency coordinators. See generally R 299.9306(1)(d); 40 CFR 265 Subpart D.
c. I.D. Numbers, Manifesting and Shipping, and Recordkeeping §4.28
LQGs must have a site-specific identification number for use on
manifest forms and other records. An I.D. number is obtained by filing
form EQP5150 with DNRE. This form is available on the DNRE's website.
I.D. numbers are location specific, not generator specific, and
therefore the same number is often used to identify one property even
through a succession of different property owners or operators. Form
EQP5150 is also used to notify DNRE regarding a change in ownership or a
change in the generator's size category.
The LQG must use a waste transporter that is licensed to haul
hazardous waste, and, if some portion of the waste is liquid, liquid
industrial waste. A generator should inquire about the type and amount
of insurance that the hauler carries, and should ask whether wastes are
stored for long periods of time before being delivered to the ultimate
disposal facility. Overall, the generator should seek a level of comfort
that the transporter is and will take precautions to insure that a
spill or other accident will not occur.
When shipping hazardous wastes off-site, a LQG must use a paper
manifest to track the shipment to the ultimate TSDF. Upon receipt by the
TSDF, the manifest is signed by that facility and a copy is returned to
the generator, which helps the generator verify that the shipment was
actually delivered as intended. A copy of the manifest must be sent to
DNRE within ten days after shipment. If the generator does not receive a
TSDF-signed manifest within 45 days of shipment, the generator must
send an exception report to DNRE. All manifest copies (including the
signed version from the destination facility) and exception reports must
be kept for three years after shipment. See generally R 299.9304.
Shipments must be prepared in such a way as to meet Department of
Transportation requirements including having DOT-approved shipment
placards available for use by the transporter (although in practice, the
placards are usually provided by the transporter). R 299.9305.
LQGs are required to file "Biennial Reports" with the DNRE before
March 1 of each even numbered year. These reports provide basic
information regarding the types and amounts of hazardous waste
generated. Copies of Biennial Reports must be kept for three years.
Most hazardous wastes are now restricted from land disposal unless they meet treatment standards in the LDR regulations. R 299.9311.
Generally, the LDR regulations, which can be exceedingly complicated to
apply in practice (and, therefore, a full discussion is beyond the
scope of this Chapter), govern any hazardous wastes that will be land
disposed in any way.
A generator of hazardous waste must determine whether the waste must be
treated before it can be land disposed. This is done by determining if
the hazardous waste meets the treatment standards found at 40 CFR 268.40 and 40 CFR 268.48.
Such a determination can be made in two ways: (1) through analytical
testing or (2) by using knowledge of the waste. With the initial
shipment of regulated hazardous waste to a TSDF, the generator must send
a one-time notice stating that the waste does or does not meet LDR
treatment standards. A copy of the notice must be kept in the
generator's files and no further notice is needed until such time that
the waste or the TSDF change. Note that special LDR requirements apply
to hazardous waste soil and debris. See R 299.9311; 40 CFR 268.7, 268.45, 268.49.
Although Part 111 is not an air quality law per se, air emissions
from hazardous waste storage and handling equipment may be regulated
through Part 111. These regulations are known as the Subpart AA, BB and
CC regulations, which refer to the federal regulatory subparts adopted
by reference by Michigan law. The regulations are found at 40 CFR 264 Subpart A and 40 CFR 265.1030 (Subpart AA), and 40 CFR 265.1050 (Subpart BB), and 40 CFR 265.1080 (Subpart CC) and are adopted by reference by Rule 299.11003(2). Overall, the intent of the regulations is to avoid inadvertent leaks of volatile hazardous wastes to the air.
Subpart AA applies to hazardous waste handling equipment with process
vents. Specifically, generators (a) with tanks or containers (b) that
have process vents associated with distillation, fractionation,
thin-film evaporation, solvent extraction, or air or steam stripping
operations, and (c) that manage hazardous wastes with organic
concentrations of at least 10 parts per million (by weight) are required
to meet Subpart AA air emission standards. For generators, however,
Subpart AA does not apply to recycling units exempt pursuant to 40 CFR 261.6(c)(1),
which exempts many recycling processes, or to equipment that is in
compliance with certain Clean Air Act standards. Therefore, the
practical application of Subpart AA to generators is limited, and the
Subpart applies mainly to licensed TSDFs.
Subpart BB sets forth leak detection and air emissions standards for
pumps, valves, pressure relief devices, sampling connection systems,
open-ended valves or lines, flanges, and other connectors associated
with generator tanks or containers. To be covered by the regulations,
the regulated devices must contain or contact hazardous wastes with
organic concentrations above 10% by weight for at least 300 hours per
calendar year. Subpart BB does not apply to recycling units exempt under
40 CFR 261.6(c)(1),
or to equipment that is in compliance with CAA fugitive emissions
controls found in 40 CFR 60 (NSPS), 61 (NESHAPs), or 63. Among other
requirements, equipment subject to Subpart BB must be marked as such, be
inspected on a regular basis, and a first attempt at fixing any leaks
must be made within five days of detection. See 40 CFR 264 and 40 CFR 265.1050 for additional detail.
The air emission requirements most applicable to generators are found
in Subpart CC. Subpart CC applies to generator hazardous waste tanks or
containers if the generator is unable to demonstrate that the hazardous
waste stored in the unit contains average volatile organic
concentrations less than 500 ppm. Subpart CC, however, does not apply to
any of the following: (a) satellite accumulation containers, (b)
containers smaller than 26 gallons, (c) units exempt from Part 111
licensing requirements (e.g., wastewater treatment units), (d) recycling
units exempt under 40 CFR 261.6(c)(1),
and (e) tanks and containers operating with controls in compliance with
Clean Air Act standards. Because determining volatile organic
concentrations can be difficult,
it is often easier to comply with Subpart CC by using the necessary
tank and container controls, which are usually not burdensome and
generally consist of ensuring that all containers and tanks have tight
fitting lids that do not allow emissions to escape. See 40 CFR 264 and 265.1080 for additional detail and requirements.
2. Small Quantity Generators §4.31
Small quantity generators (SQGs) of hazardous waste must meet many of
the requirements applicable to large quantity generators, although such
requirements are often simplified and written requirements reduced.
Perhaps the greatest difference from LQGs is that SQGs may store waste
on site for 180 days
compared to the 90 days allowed LQGs. Although LQGs are not limited in
the amount of hazardous waste stored on site, SQGs are limited to 6000
kg at any one time. Other differences include:
- While tanks and containers of waste still need to be inspected, SQGs
do not need to keep written documentation of the inspections.
- Secondary containment for wastes is not required so long as the total amount of waste is less than 1000 kg.
- While a SQG must have a contingency plan, it need not be written or documented.
- Training may be informal and no written record is necessary.
- No biennial report is required for SQGs.
- Hazardous air emission standards (Subparts AA, BB and CC) do not apply to SQGs.
See generally R 299.9303–9307.
3. Conditionally Exempt Small Quantity Generators §4.32
In comparison to SQGs and LQGs, generators of less than 100 kg (220
lbs) of hazardous waste in any one month are classified as
"conditionally exempt small quantity generators" (CESQGs) and are
subject to relatively few regulatory requirements. Specifically, CESQGs
are required to:
- Identify all wastes to determine if they are hazardous.
- Ensure that less than 100 kg (220 lbs) of hazardous waste is generated in any one month.
- Ensure that no more than 1000 kg (2200 lbs) of hazardous waste is accumulated on site at any one time.
- Store wastes in a manner that is protected from weather, fire,
physical damage or vandals, and in such a way as to prevent the escape
or release of waste to the environment.
- Verify that all hazardous waste goes to a licensed hazardous waste
treatment, storage or disposal facility, a state licensed municipal land
fill, or a facility that legitimately uses, reuses or recycles the
- Maintain records showing that the facility is in fact a CESQG.
CESQGs do not have to use manifests to ship their wastes unless those
wastes qualify as "liquid industrial wastes." Nor do CESQGs need to
have a hazardous waste contingency plan. The regulations applicable to
CESQGs are found at R 299.9205.
A. Overview §4.33
An entity that wishes to store hazardous wastes for a period of time
longer than that allowed generators, or that wishes to treat or dispose
of hazardous waste on-site, must be licensed. Such facilities are known
as "treatment, storage and disposal facilities" or "TSDFs," and
typically include large manufacturing complexes, landfills and
incinerators. Generally speaking, the requirements applicable to
generators apply to TSDFs, but TSDFs are required to meet additional
requirements. TSDFs are relatively rare compared to generators, and the
legal practice related to TSDF licensing is highly specialized.
Therefore, this Chapter does not describe TSDF requirements, except for
corrective action requirements (section VI below), which can apply to
generators and property owners as well as licensed TSDFs. The licensing
and regulatory requirements applicable to TSDFs are found in Parts 5, 6
and 7 of the rules, beginning at R 299.9501.
TSDF licenses are currently issued by DNRE, but EPA occasionally must
also issue licenses to Michigan facilities to cover portions of the RCRA
program that EPA has not yet authorized DNRE to manage. Therefore, it
is not uncommon for a facility to have two TSDF licenses, one from EPA
and one from DNRE. There are two categories of licenses in Michigan:
construction permits and operating licenses, the intent being that an
entity should apply first for a construction permit authorizing the
construction of the TSDF, then, after completion of construction,
governance switches to an operating license.
B. Interim Status Facilities §4.34
The so-called "interim status" facility is a facility that requires a
TSDF license, but does not have one. Interim status facilities were
much more prevalent when RCRA was first enacted, because many
then-currently-operating facilities needed licenses, but it took several
years for EPA and DNRE to issue them. Interim status requirements
basically adopt and mimic licensed facility requirements, and are found
at R 299.9601(2).
Some facilities can be "accidental" interim status facilities, i.e.,
they are conducting operations that require a license, but have not
applied for one.
A. Overview §4.35
Although RCRA and Part 111 focus on the proper management of
hazardous waste, both laws contain requirements to investigate and
cleanup contamination associated with waste management operations. These
requirements are known as "corrective action."
B. Applicability and General Requirements §4.36
Typically, corrective action applies to facilities that have or have
had a RCRA or Part 111 TSDF license at some point in their history. EPA
and DNRE usually take the position that once a facility formally applies
for a TSDF license, the facility is subject to corrective action unless
the application is formally withdrawn and such withdrawal is approved
by the issuing agency. Interim status and "accidental" interim status
facilities are also subject to corrective action. The agencies also
usually take the position that once a property is subject to corrective
action, it is always subject to corrective action, regardless of a
change in ownership or the cessation of waste management practices.
Therefore, potential buyers of property must be especially cautious when
considering the purchase of property that could have had, or that
simply applied for, a TSDF license in the past, or that could have been
covered by the interim status regulations.
Although corrective action at large facilities often entails
multi-million dollar investigations and cleanups, the actual law and
regulations guiding the corrective action process are surprisingly
slight. Federal RCRA corrective action legal requirements are largely
found in two statutory sections and two relatively short regulatory
sections. For licensed TSDFs, RCRA provides:
Standards promulgated under this section shall require, and a permit
issued after November 8, 1984, by the Administrator or a State shall
require, corrective action for all releases of hazardous waste or
constituents from any solid waste management unit . . . .
42 USC 6924(u). Additional statutory corrective action authority provides:
Notwithstanding any other provision of this chapter, upon receipt of
evidence that the past or present handling, storage, treatment,
transportation or disposal of any solid waste or hazardous waste may
present an imminent and substantial endangerment to health or the
environment, the Administrator may bring suit . . . to order such person
to take such other action as may be necessary . . . .
42 USC 6973(a). The RCRA regulatory sections are found at 40 CFR 264.100 and 40 CFR 264.101.
Numerous guidance documents on EPA's website add detail to the legal
framework. The primary guidance document for corrective action is an
advance notice of proposed rulemaking published by EPA in 1996. See
Corrective Action Releases from Solid Waste Management Units at
Hazardous Waste Management Facilities, 61 Fed Reg 19432,
19,442 (proposed May 1, 1996). Although this document never led to an
actual rulemaking setting forth a comprehensive corrective action
program as intended, the long notice sets forth broad guidelines that
are still used by EPA today.
Earlier in 1996, EPA delegated corrective action authority to DNRE
for all facilities with TSDF licenses. Michigan Final Authorization of
Revisions to State Hazardous Waste Management Program, 61 Fed Reg 4742
(February 8, 1996). Accordingly, most "corrective action" activities in
Michigan currently fall under DNRE authority, and so Michigan
facilities should focus on Michigan law and regulation.
Michigan defines "corrective action" as "an action determined by the
department to be necessary to protect the public health, safety, or
welfare, or the environment . . . ." MCL 324.11102(3). For licensed TSDFs, Michigan's corrective action authority is found in section MCL 324.11115a(1) and (2) of Part 111:
(1) Beginning on June 4, 1992, the owner or operator, or both, of a
facility specified in this subsection is subject to corrective action
requirements specified in this part and the rules promulgated under this
part for all releases of a contaminant from any waste management unit
at the facility, regardless of when the contaminant may have been placed
in or released from the waste management unit. This requirement applies
to a facility for which the owner or operator, or both, is applying for
or has been issued a license under this part.
If DNRE determines "on the basis of any information" that there has
been a release of a "contaminant" from "any waste management unit at the
facility," DNRE may require corrective action, including "that
corrective action be taken beyond the facility boundary if the release
of a contaminant has or may have migrated or otherwise has or may have
been emitted beyond the facility boundary." MCL 324.11115a(2). Similar language for interim status facilities is found in sections MCL 324.11115a(3) and (4).
Two important terms in this requirement are "contaminant" and "waste management unit." A "contaminant" is defined as:
- a hazardous waste as defined in R 299.9203 of the Michigan administrative code; [and]
- any hazardous waste or hazardous waste constituent listed in
appendix VIII of part 261 or appendix IX of part 264 of title 40 of the
code of federal regulations.
The term "waste management unit" (WMU) is meant to be synonymous with
"solid waste management unit" (SWMU) under federal law. See R 299.9504(20). EPA defines a SWMU as:
Any discernable unit at which solid wastes have been placed at any
time, irrespective of whether the unit was intended for the management
of solid or hazardous waste. Such units include any area at a facility
at which solid wastes have been routinely and systematically released.
Corrective Action Releases from Solid Waste Management Units at Hazardous Waste Management Facilities, 61 Fed Reg 19432
, 19,442 (proposed May 1, 1996). Note that management of "hazardous
waste" is not required; solid waste will do. This application of
corrective action requirements to essentially non-hazardous waste
sources has been approved by the courts. Owen Electric Steel Co of South Carolina, Inc v. Browner, 37 F3d 146, 148 (4th Cir 1994); American Iron & Steel Institute v. Environmental Protection Agency, 280 US App DC 373;
886 F2d 390 (1989) (holding that although Bevill-Bentson wastes are
exempt from hazardous waste regulatory requirements, such wastes are
subject to corrective action).
Like the federal corrective action program, Michigan's Part 111
corrective action regulations are somewhat sparse, and are contained
largely in one rule. See R 299.9629. Therefore, it is not surprising that DNRE uses Part 201 cleanup processes to implement its Part 111 program (see § 4.37).
Among other things, Rule 629 requires that an owner or operator
"conduct corrective action as necessary to protect the public health,
safety, welfare, and the environment pursuant to a corrective action
program approved by the director." R 299.9629(1). For contamination beyond the facility boundary:
Owners or operators shall implement corrective action beyond the
facility boundary if the releases . . . have or may have migrated, or
otherwise have or may have been emitted, beyond the facility boundary,
unless the owner or operator demonstrates, to the satisfaction of the
director, that, despite the owner's or operator's best efforts, the
owner or operator is unable to obtain the necessary permissions to
undertake such actions. The owner or operator shall not be relieved of
all responsibility to clean up a release that has migrated or been
emitted beyond the facility boundary where access is denied. On-site
measures to address such releases shall be determined on a case-by-case
C. The interplay between Part 111 and Part 201 of NREPA §4.37
Part 201 of NREPA is Michigan's primary cleanup law. See Chapter 5.
If applicable, however, Michigan's Part 111 corrective action
requirements generally take precedence. Michigan's Part 201 exempts from
Part 201 liability owners and operators subject to Part 111 corrective
[T]he following persons are not liable under this part :
The owner or operator of a hazardous waste treatment, storage, or
disposal facility regulated pursuant to part 111 from which there is a
release or threat of release solely from the treatment, storage, or
disposal facility, or a waste management unit at the facility and the
release or threat of release is subject to corrective action under part
In turn, Part 111 states that "[c]orrective actions conducted under
this part satisfy a person's remedial action obligations under part 201 .
. . ." MCL 324.11115b.
Note, however, that the baseline environmental assessment process,
"innocent purchaser," or other defenses to liability under Part 201 (and
similar defenses under the federal Comprehensive Environmental
Response, Compensation, and Liability Act, 42 USC 9601 et seq.) do not provide protection from Part 111 liability.
The practical difference between Part 111 corrective action and Part
201 remediation is becoming less and less. The Part 111 corrective
action rules have always referenced and required compliance with Part
201 standards. See, e.g., R 299.9629(3)(a)(ii)
and (iii). Outside the regulations, in 1998, EPA Region V sent a letter
to DNRE recognizing "the State's intention to use the new Part 201
cleanup standards in the administration of the State's hazardous waste
management program, including the closure and corrective action portions
. . . ." Letter from US Envtl Prot Agency to Mr. Jim Sygo, DNRE (June
5, 1998). This policy was confirmed and broadened in November 2000, when
EPA Region V and DNRE (then known as the MDEQ) entered into a
Memorandum of Understanding (MOU) sanctioning the DNRE's use of Part 201
cleanup processes and criteria at corrective action sites:
Region V . . . has determined that the MDEQ's use of Part 201
clean-up standards and related processes . . . are an acceptable way of
achieving the objectives of the authorized Part 111 [corrective action]
The MOU defines these "corrective action objectives" as requiring (a)
facility-wide assessments that address all releases on and off-site of
hazardous wastes or constituents into the environment from all solid
waste management units and areas of concern, (b) remedies that are
protective of public health and the environment, and (cd) meaningful
opportunities for public involvement. The MOU specifically contemplates
the use of Part 201 land-use based cleanups, restrictive covenants and
DNRE has been working toward full use of Part 201 processes and
criteria (and terminology) for corrective action purposes, and TSDF
licenses currently issued by the DNRE generally use Part 201 cleanup
terminology in place of RCRA terminology.
D. The Corrective Action Process §4.38
EPA and DNRE take the position that they can undertake or require
investigative activities at SWMUs and WMUs to determine whether there
has been an impact necessitating corrective action. See Nat'l Standard Co v. Adamkus, 881 F2d 352, 354 (7th Cir 1989) (upholding EPA's inspection and sampling power at SWMUs under 42 USC 6927(a), with reference to the corrective action power at 42 USC 6924(u)). For example, according to current EPA regulations, a TSDF license must cover the following issues for all SWMUs:
- The owner or operator of any facility containing one or more solid
waste management units must submit all available information pertaining
to any release of hazardous wastes or hazardous constituents from such
unit or units.
- The owner or operator must conduct and provide results of sampling
and analysis of groundwater, land surface, and subsurface strata,
surface water, or air, which may include the installation of wells,
where the Director ascertains it is necessary to complete a RCRA
Facility Assessment that will determine if a more complete investigation
40 CFR 270.14(d)(2) and (3).
If no releases of contaminants are discovered during the investigation
stage, then no additional corrective action is necessary.
The RCRA/Part 111 corrective action process in the past typically
followed the path set forth below. Now that DNRE is using Part 201
processes to implement corrective action, however, the processes and
terminology in the second column are generally used instead. Overall,
the process starts with investigation, moves to remedy design, and then
to implementation of the remedy.
|preliminary assessment/visual site inspection/facility assessment
|RCRA facility investigation
|corrective measures implementation
||remedial action plan
Each of these steps can require significant time and expense. Complex sites can take several years or decades.
Case law interpreting corrective action requirements under RCRA sets
forth some restrictions on the reach of corrective action requirements,
however minimal. This case law supports the proposition that
investigations must be tailored to site-specific conditions in order to
"avoid imposing unnecessary or inappropriate burdens upon the
permittee." See In the Matter of American Cyanamid Co (Kalamazoo, Mich),
3 EAD 657 (August 5, 1991). An owner or operator must also be shown to
be connected to the contamination in question before imposing corrective
action requirements. In In the Matter of Amoco Oil Co, 4 EAD 954
(November 23, 1993), EPA sought to require Amoco to investigate
sediments in water bodies in the vicinity of Amoco's facility, although,
according to Amoco, there was no support for such a requirement. The
court agreed with Amoco, noting that there was "no evidence in the
record" that these water bodies "may have been affected by a release"
and that the EPA had not "articulated a rationale for stating that these
water bodies must be studied." In In re Caribe General Electric Products, Inc, 8 EAD 696
(February 4, 2000), the court held that there must be a "sufficient
nexus" showing that contamination has migrated from the facility to the
area being investigated and that the contamination poses a threat to
E. Corrective Action Completion §4.39
In February 2003, recognizing that some sort of finality in regard to
the completion of corrective action obligations would "benefit the
owner or operator, the community, and the regulatory agency," EPA
published final guidance designed to assist RCRA-authorized states in
acknowledging completion of corrective action activities. Final Guidance
on Completion of Corrective Action Activities at RCRA Facilities, 68 Fed Reg 8757
(February 25, 2003). According to EPA, the catalyst for corrective
action requirements is "protection of human health and the environment,"
and therefore a determination that corrective action is complete is
basically a determination that appropriate protective standards have
been achieved. Id.
While nothing in Part 111 requires that corrective action continue
indefinitely, the regulations also do not provide a clear end-point to
corrective action obligations. Therefore, DNRE has generally adopted
EPA's completion guidance and has begun issuing "corrective action
complete" letters to property owners and operators.
EPA's guidance provides for two types of corrective action complete
determinations: "without controls" or "with controls." A determination
"without controls" means that "no additional remedial activity would be
required on the part of the regulatory agency or the owner or operator
to maintain protection of human health and the environment . . . . Thus,
the corrective action requirements can be eliminated," including
financial assurance mechanisms and restrictions on transfer. 68 Fed Reg
at 8762. A determination without controls is appropriate when there was
no need for corrective action in the first place (e.g., uncontaminated
property), or where the remedy was "implemented successfully." Id.
at 8761–62. "With controls" means that while corrective action
activities are no longer necessary, controls are needed to ensure that
the remedy remains protective, for example, through institutional or
engineering controls. Id. at 8758, 8762. Such a determination
is appropriate where (a) a full set of corrective measures has been
defined, (b) the facility has completed construction and installation,
(c) site-specific media cleanup objectives have been met, and (d) all
that remains is performance of required operation, maintenance, and
monitoring activities or compliance with, and maintenance of,
institutional controls. An "enforceable mechanism" (e.g., permit, order,
etc.) must be in place to ensure compliance with any necessary
controls. Id. at 8762.
Although the idea is to provide finality, DNRE generally adds
"reopeners" to any completion letter for newly discovered contamination
or similar matters.
A. Overview §4.40
The enforcement provisions of Part 111 start are found beginning at MCL 324.11144.
Perhaps the most unusual enforcement-related requirement is found in
subsection 11144(5), which requires that a "person who has knowledge
that hazardous waste is being treated, disposed of, or stored in
violation of this part shall notify the department." MCL 324.11144(5).
This, arguably, places an affirmative duty on anyone (even lawyers) to
report almost any violation, although, taken to its extreme, the
requirement borders on absurd. It is doubtful that the legislature
intended that every trivial violation be reported to the DNRE, for
example, reporting that a hazardous waste label on one drum was not
completely filled out (arguably a "storage" violation). Instead, the
legislature likely intended some sort of reasonable threshold of
significance before a report would be required — but maybe not.
Practitioners should be wary of this requirement and its interface with
the Code of Professional Responsibility.
B. Formal Enforcement §4.41
Formal enforcement under Part 111 is relatively rare. Typically, a
matter will arise during a DNRE inspection and will be resolved
relatively informally through subsequent correspondence between the DNRE
and the facility involved.
The formal enforcement tools available to the DNRE and the attorney
general are significant. The department has both the express ability to
request information and inspect a facility, including the right to
sample hazardous wastes. MCL 324.11146.
If an activity may present an "imminent and substantial hazard" or is
"endangering or causing damage," then the DNRE may issue an order
requiring necessary corrective measures, initiate an administrative
action to revoke the facility's license, or may request the attorney
general to commence a court action to obtain injunctive relief. MCL 324.11148.
The attorney general "or a person" may also commence a civil action for
any violation of Part 111, a Part 111 license, or the administrative
rules. The circuit court in such an action has the power to restrain the
violation or impose up to $25,000 in fines per violation per day, to be
deposited in the state general fund.
Note that the EPA takes the position that it can "over-file" or seek
enforcement against any entity when the state fails to act, invoking
EPA's underlying RCRA authority.
"Used in a manner constituting disposal" generally refers to applying
the material directly to the land or used to produce a product that will
be applied to the land, for example, as an ingredient in roadway
asphalt. See § 4.12.
This exception is important, otherwise, the recycling process could be
deemed the "treatment" of hazardous waste, which could require a
treatment license. Subdivision (d) applies the requirements of 40 CFR
265, Subparts AA (air emission standards for process vents) and BB (air
emission standards for equipment leaks) if the unit is located at a
facility that is an interim status facility or that is a licensed TSD. R 299.9206(1)(d). See § 4.30.
 Rule 299.9202(6)(b) states:
(6) The director may determine, on a case-by-case basis, that the following recycled materials are not wastes:
. . .
(b) Materials that are reclaimed and then reused within the original production process in which they are generated.
EPA clearly considers the typical "closed loop" system as being piped
from beginning to end. When EPA proposed the closed loop exclusion, for
example, EPA provided an example of solvent reclamation where the
solvent, after being distilled, is "returned by pipe to the original
unit process for reuse . . . ." Hazardous Waste Management System:
Identification and Listing of Hazardous Waste, 50 Fed Reg 51,264
(December 16, 1985). Other guidance documents provide examples of
systems closed from beginning to end. See, e.g., US Envtl Prot Agency
RCRA/Superfund Hotline Monthly Summary (December 1988).
Note that under EPA's analysis, not everything needs to be returned to
the production process for the closed-loop exemption to apply — only the
"product recovered" must be returned to the process. Therefore, the
fact that still bottoms and other materials are not recovered and
returned to the process does not defeat the exemption. Cf US Envtl Prot
Agency RCRA/Superfund Hotline Monthly Summary (December 1988). Although
in its 1997 letter EPA notes that not all "secondary materials" were
being returned to the production process, this was probably not intended
by EPA to be read too literally.
If the hazardous waste was listed solely because it exhibits the
characteristic of ignitability, corrosivity, or reactivity, then the
resulting mixture is hazardous only if it exhibits one of those
characteristics. The most common such listed wastes are F003 solvents.
Otherwise, this listing is a fairly rare occurrence.
"Waste from the extraction, beneficiation, and processing of ores and
minerals, including coal, phosphate rock, and overburden from the mining
of uranium ore . . . ." R 299.9204(2)(h).
The reason the old Type B criteria are used is because these were the
cleanup criteria in effect when EPA approved this portion of Michigan's
hazardous waste program. It would make more sense if this portion of the
program were updated to use Michigan's current cleanup criteria under
Part 201 of NREPA.
 "Used oil" does not include vegetable or animal based oils.
As appropriate for the wastes generated on-site, a facility may have to
have an internal alarm system, portable fire extinguishers, spill
control equipment, and water supply for hoses or automatic sprinklers.
If any component of the waste will be disposed on the land in any way,
then this element is satisfied. Therefore, if recycling the waste
creates a residue that is land disposed, then the LDRs apply.
 See definition at 40 CFR 265.1081 and procedures at 40 CFR 265.1084.
 The requirement is 270 days if waste is shipped 200 miles or more.
EPA also has the general authority to include in any TSDF license any
conditions or terms "necessary to protect human health or the
environment," which might also arguably include corrective action-type
requirements. 42 USC 6925(c)(3).
 This language is adopted by reference in Michigan's regulations concerning hazardous waste construction permits, R 299.9504(20),
but not operating permits (apparently because all pre-existing
facilities would have been subject to this requirement under the federal