Question # 393

393. A covered facility sends a 55-gallon drum containing less than one inch of a listed toxic chemical off-site for disposal. For purposes of the RCRA hazardous waste regulations, the container is considered an empty container as defined in 40 CFR Section 261.7 (i.e., RCRA-empty). Must the facility report the listed toxic chemical contained in the RCRA-empty container as an off-site transfer for purposes of disposal on the Form R even though it is not considered to contain hazardous waste under RCRA?
Yes. The definition of an empty container pursuant to 40 CFR Section 261.7 does not apply to EPCRA section 313. Even though the residue remaining in a container rendered RCRA-empty is no longer considered a hazardous waste under federal RCRA regulations, it is still considered a toxic chemical under EPCRA section 313. The status of a listed toxic chemical as a nonhazardous waste under RCRA has no impact on the applicability of EPCRA regulations on that chemical. Under EPCRA Section 329, the term release is defined as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any toxic chemical.” In Part II, Section 8.1 of the Form R, EPA requires facilities to report all releases of listed toxic chemicals, except those quantities released to the environment as a result of remedial actions, catastrophic events, or one-time events not associated with production processes. Disposal of a RCRA-empty container which contains any amount of a listed toxic chemical is generally reportable in Section 8.1 when transferred from or disposed at an EPCRA section 313 covered facility. If, however, the facility has total reportable amounts of a non-PBT chemical not exceeding 500 pounds, it may be eligible for the higher alternate reporting threshold in 40 CFR Section 327.27.