"a sample portion of material
or waste that is nearly identical in content and consistency as
possible to that in the larger body of material or waste being
Taking representative samples of the whole waste is especially
important because Regulation 347 defines, as non-hazardous waste,
several types of waste that would individually fail a leachate
test, including certain types of spill cleanup materials and 2.5 cm
of residue in the bottom of an "empty" hazardous waste
container. (Up to 25 kg, in a 1000 litre tote).
But the Ministry of the Environment argued in court this month
that they can cherry pick "whatever interests them" out
of a truck or pile of waste, even if it does not represent the
truck or the pile as a whole. (This is called "biased
sampling".) And if what they choose to sample fails a
TCLP, they say the waste is "hazardous". And they are
asking for penalties against senior company managers,
This "hotspot" approach creates huge risks for waste
generators, as well as waste management companies. The penalties
for handling "hazardous waste" as non-hazardous can
include jail, and very large fines, for both companies and
individuals. Yet how can any company or individual know, in
advance, which parts of their waste might "interest" the
Ministry, or what an analysis of that part might show? Many
non-hazardous wastes are heterogeneous, and will contain some
amount of hazardous materials. What kind of sampling can anyone
rely on, if representative sampling is not good enough? And how can
this sampling approach be reconciled with the exemptions for empty
containers, spill cleanup materials, etc.?
The more that regulators jack up penalties for hazardous wastes,
the more important it is that there be fair, objective and reliable
ways to know what counts as "hazardous". Abandoning
representative sampling, in favour of cherry picking "whatever
interests them", would be a very dangerous step in the wrong
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