When is an IBC tote RCRA empty?

What the rule says

The rule is 40 CFR 261.7. It answers one question: when does a container stop being regulated as hazardous waste? Under 261.7(a)(1), hazardous waste residue left in an empty container is not subject to hazardous waste regulation, and the container itself is not regulated as hazardous waste.

Everything turns on the word empty. For a container larger than 119 gallons, which covers every 275 and 330 gallon tote, 261.7(b)(1) says it is empty when the contents have been pumped or poured out by the methods commonly used for that product, and then one of two things is true. Either no more than 2.5 centimeters (one inch) of residue is left on the bottom, or no more than 0.3 percent of the total capacity by weight is left.

A container that held an acute hazardous waste follows 261.7(b)(3) instead. It is empty only after triple rinsing with a solvent that can remove the product, after an equivalent cleaning, or after its inner liner is removed.

Worked out for 275 and 330 gallon totes

The 0.3% test is easy to say and awkward to do on a dock, because it is a weight. The table turns it into gallons and pounds. A gallon of water weighs about 8.345 pounds, so the pound figure moves with the specific gravity of whatever the tote held. The SDS gives that number.

The one-inch test is a depth you can read with a rule. On a 48 by 40 inch floor, one inch is up to 8.3 gallons, which is far more than 0.3% of capacity. The bottle floor is a little smaller than the pallet, so treat that as an upper bound. The rule gives the two tests as alternatives, so a tote that meets either is empty. This site's Empty Check reads the inch, because that is the figure a person on the dock can measure.

What empty does not tell you

Empty under 261.7 is a statement about waste regulation. It says nothing about whether the tote is clean, whether a buyer will take it, or whether it may hold water or food next. A tote can be RCRA empty and still carry a film of glycol, biocide or reagent that makes it a recycle-only tote.

That is why the next step is the last contents. Last contents and the SDS explains how the old label and the safety data sheet decide between reuse, reconditioning and recycling.

The generator decides

Under RCRA the generator is the site whose activity produced the waste. The generator, not the recycler, decides and documents whether a tote is waste. We can show you the test and the arithmetic. We cannot sign the determination for you, and we never declare a specific tote non-hazardous.

Each state adds its own layer. The three rulebooks sets DOEE in the District, MDE in Maryland and Virginia DEQ side by side. Check with your hauler and with the agency before a tote ships.

What to do on the dock

1. Find out what the tote last held. Read the label or pull the SDS.
2. Pump or drain it by the usual method until nothing more comes out.
3. Measure the heel through the fill cap. Measuring the heel shows how.
4. Enter the figures in the Empty Check and read the ticket.
5. If the tote passes, keep the caps closed and the old label on, and send the request. If it does not, drain further or call a licensed hazardous-waste hauler.

Small containers and the 3% test, for contrast

The 0.3% figure applies only to containers over 119 gallons. A container of 119 gallons or less is empty under 40 CFR 261.7(b)(1) when no more than 3% of its capacity by weight remains. On a 55 gallon drum, 3% is about 13.8 pounds at water weight. On a 275 gallon tote, 0.3% is about 6.9 pounds, so a tote is held to a stricter limit by weight than a drum is.

Both tests start from the same step: the contents have been removed by the methods commonly used for that product, such as pouring, pumping or aspirating. A tote that has simply been tipped for a minute has not been emptied that way. The generator, the site that used the product, decides and records whether the test is met.

Residue that is more than the limit makes the tote hazardous waste if the last contents were hazardous. Measuring the heel shows how to find out with a clean rod.

Who decides, and what to keep on file

Nothing in the rule asks a recycler to certify that a tote is empty. The generator makes that judgment where the tote is emptied, because only the generator knows how the product was removed and what the product was. A short note kept with the tote helps anyone who handles it later: the date, the person who measured, the depth in inches, and the method used to remove the contents.

Three outcomes are possible. The tote meets the test and is an empty container. It fails the test and stays hazardous waste if the product was hazardous. Or it held a product that is not hazardous at all, in which case the question of RCRA emptiness does not arise and the only question is how clean a buyer needs it.

State agencies in the District, Maryland and Virginia may add requirements of their own on top of the federal floor, so check with your hauler before treating any tote as empty on paper.

Common mistakes with the empty rule

Treating a drained tote as empty without measuring is the most common. Measuring the heel with the tote tilted is next, because tilting pools the liquid and overstates the depth. Counting the weight of the tote itself rather than the weight of the residue is a third, and so is assuming that an acute product follows the same rule as any other. None of these is difficult to avoid once the test is written down on a card beside the tote.