MEMORANDUM

To:	Charlotte Mooney, Chief

     	Recycling and Generator Branch

From:	Jim O’Leary 

Teena Wooten

	

Subject: Summary of Waste Determination Meetings with VT and NH State
Officials on September 27-28, 2010

	The following represents a summary of the discussions we had in
meetings with Vermont (VT) and New Hampshire (NH) state officials on
September 27-28, 2010, respectively, on why generators often have a
difficult time making a hazardous waste determination. Region 1 staff
also attended both meetings.  Appendix A provides a list of attendees.

	We started both meetings stressing that we wanted the discussions to be
free-flowing and not focus on the list of questions we had previously
sent them. We believed this would not only foster greater dialogue, but
also address any concerns we might have in complying with Information
Collection Request (ICR) requirements. 

	In both meetings, we asked participants to “set the stage” for us
by describing how their hazardous waste determination regulations
differed from the federal program and tell us how many generators they
had. Both states start the waste determination process by asking if a
waste has been generated. In other words, they do not start with whether
a “solid waste” has been generated. If a waste has been generated,
their rules then focus on whether the waste is excluded from either
being a solid waste or hazardous waste. If not excluded from being a
solid waste, or exempt from being a hazardous waste, then their
regulatory frameworks address whether the waste is a listed hazardous
waste, or a characteristically hazardous waste. VT doesn’t have or use
Table 1 in 261.2. However, VT incorporates many of the federal SW/HW
exclusions in our state regulation but lump them under the categories of
“conditional exemptions” and “recycling exemptions.”  Both VT
and NH includes corrosive solids as a characteristic waste.  In
retrospect, their hazardous waste determination frameworks have merit.

	Both states require written documentation for making both hazardous
waste and non-hazardous waste determinations. For NH the documentation
must be an evaluation showing how they arrived at the determination.
This determination must be kept in their files. NH and VT require all
generators no matter what size to notify.  They both also have container
requirements for their CESQGs.

	The table below summarizes the approximate number of generators both VT
and NH have by category. Both states have few large quantity generators.


	           NH	                VT

CESQGs	                   2,054	                      2500

SQGs	                      217	                         255

LQGs	                      112	                           50

Total	                   2,383	                      2,805



VT’s generator requirements for CESQGs (CEGs in VT) include a
requirement to prevent releases and ensure delivery to a variety of
specified disposal options (e.g., a TSDF, permitted solid waste
management facilities other than landfills, “another site in Vermont
that is owned and operated by the owner/operator of the CEG site and
that meets either the SQG or LQG standards, permitted HHW/CEG collection
events coordinated by VT’s solid waste management districts), making
them more stringent than the federal program.  VT is organized into 16
solid waste management districts and each district holds two household
hazardous waste collection events each year.

Why Do Generators Have a Tough Time Making a Hazardous Waste
Determination?

	There was a great deal of overlap in VT and NH’s response to this
question. Both agreed that awareness and knowledge, or conversely, lack
of awareness and knowledge, were the two most important factors
influencing hazardous waste determinations. For awareness, a significant
number of violations occur because generators fail to look at all the
waste they generate. They focus on waste generated from their
manufacturing operations, but not on wastes generated by operations that
support manufacturing operations (e.g., facility maintenance). Two prime
examples were aerosol cans and solvent wipes. One VT staffer thought
more than 50 percent of all waste determination violations occurred from
these peripheral operations. NH also mentioned that these peripheral
wastes were a big problem in their state.  

	Another reason why generators may have a difficult time making proper
hazardous waste determinations is the complexity of some manufacturing
operations and the corresponding federal regulations. This was true for
certain types of manufacturing involving small businesses, such as
electroplating (from NH inspections) where generators failed to make the
proper determination.

VT felt that large manufacturing firms had the resources and expertise
to make proper waste determinations while small businesses face
challenges from a lack of resources and expertise. 

	Both states spoke about their generators often relying on transporters
to make determinations. With many generators being small businesses with
little expertise in this area, reliance can be both good and bad. Good
in that a determination is being made; bad because the determination may
be wrong, particularly if the transporter is from out-of-state and not
aware of the generator’s state regulations.

        VT mentioned that generators with locations in several states
pose problems because the compliance officer in one state may not be
aware of the rules for wastes going to another state and thus not
account for state specific hazardous waste when making determinations. 

	Both states mentioned that state resources available for inspections
are at critically low levels with little beyond the required minimum
inspections for LQGs (and TSDs in VT) occurring; that is, 20 percent
each year or once every five years.  Limited resources impact the
states’ ability to inspect SQGs, thus, they were often under the
state’s radars.

	NH officials mentioned that while the waste determination regulations
are acceptable, generators have a difficult time interpreting the
exemptions, listings and characteristics, as defined in 40 CFR Part 261.
They also mentioned that while generators correctly identify their
hazardous waste, the percentage of inspections with at least 1 hazardous
waste determination violation has ranged from 25 to 75 percent since
2004. These wrong determinations have led to 32 disposal violations in
the same time period.

	NH officials also mentioned that generators often fail to understand
the scope of the hazardous waste listings, in particular F006, F019, and
F001-F005 mixtures. They also fail to recognize contamination of solid
waste with hazardous waste constituents (whether listed or
characteristic).

Factors Influencing Generator Behavior  

	One question we asked VT and NH had to do with identifying from their
experience and observations those factors that influence compliance or
non-compliance with hazardous waste determinations. We threw out for
comment those factors we had identified and asked for comment.    

The “culture of the firm.” Probably the biggest response and
strongest factor. All participants agreed that firms with strong
leadership, procedures in place, and a commitment to “do things
right” will have a higher likelihood of success in making the right
hazardous waste determinations.

Size of the firm. Direct correlation with making proper waste
determinations.

Specific resources devoted to environmental compliance. Large firms
usually have dedicated environmental compliance officers trained to
address compliance with environmental rules. Conversely, smaller firms
with workers who wear multiple hats have a tougher time because their
priority is producing products.

Age of the firm.  Direct correlation with making proper waste
determinations since workers have gained the necessary experience to
foster better compliance. However, counterbalancing this is worker
turnover and the need to retrain workers.

Industrial sector. Some sectors appear more complex than others, but
size of firm within a sector also influences compliance.

Financial health of the organization.  The more resources available, the
higher the likelihood that some of those resources will be devoted to
environmental compliance.

Trade association assistance. Some more than others, but a direct
correlation when involved. NH identified their Automobile Dealers
Association as having a positive impact.

Community attention. Yes, but feedback was minimal.

Other factors. NH officials identified the complexity of the hazardous
waste listings and the mixture rule as having adverse affects on making
proper waste determinations.

Program Implementation

	We spent a considerable amount of time discussing their outreach and
technical assistance activities. VT had a strong small business outreach
effort, with workshops, brochures (with examples provided), hotline
(always answered by staff), on-site technical assistance and a website.
One VT official brought up how important it is to provide both a visual
approach and written documentation to foster compliance.   

	Obviously NH was proud of its state laws and rules requiring generator
training for Full Quantity Generators (FQGs), which includes federal
LQGs and SQGs. Having attended their one day workshop, we can understand
their sentiment. Trainers spent a considerable amount of time describing
their waste determination regulations. We might add that NH is the only
state to require annual generator training and a generator/hazardous
waste coordinator certification program. NH officials felt their
training and certification program was effective and that generators
attending subsequently self-reported waste determination violations.
Note: VT officials were jealous of NH’s program. (As an aside, both VT
and NH brought up in our discussions the difficulty in being able to
measure the effectiveness of their training.) NH had similar outreach
activities as VT, but also produced fact sheets and regulatory
interpretation letters.   

What they would do if royalty or had ability to influence change

VT Officials

Training for inspectors in how to get a thorough understanding of what a
facility does and evaluating wastes generated. Not there yet. Inspectors
need more hands-on experience in evaluating processes. 

The ability to provide more technical support, particularly “face
time” to generators. 

Carrot-and-stick. Targeted training with follow-up to measure
effectiveness.

Plain English regulations.

Field citations (equivalent to federal UST program). Inspectors issue
citation with penalty when violations found. Generators can pay penalty
move into compliance, and enforcement action ends. (Idea raised by
Stuart Gray of Region 1.)   

Cheat sheet, or RCRA checklist, to help generators.

Self-certification program. 

NH Officials

- Much more specific.  Recommended changing the F006 listing description
to identify what processes were included in the listing, not just those
that were excluded.  Require the presence of Appendix VII constituents
in the waste for it to be a listed hazardous waste.  Develop hazardous
waste listing review documents to explain to generators the scope and
application of individual listings.  Develop an alternative hazardous
waste identification method for listed hazardous waste based on toxic
constituent concentration. 

  

- Increase inspections to include SQGs, CESQGs and non-notifiers.

- Require a written description of generator hazardous waste
determinations.

- Require transporter and consultant training and certification.

- Develop a more user-friendly web-site for generators to help make
determinations.

- Have universities provide training/curriculum in waste determinations.

Other comments

- Need a better process for generators to make HW determinations.

- The suppliers of hazardous materials have a role to play in helping
their customers decide whether the wastes from their materials might be
an HW. Using MSDs just doesn’t cut it.

- Turnover of generator and inspector staff play a big role in losing
institutional knowledge. Need to prepare for these impacts.

- ASTSWMO has a peer matching program that provides an opportunity to
share information for inspectors from different states. Need to expand
and play up.

- RCRA is complicated. Generators need help that is sufficient and
sustainable. NH law and rules require generators to attend annual
training to earn certification (through passing of an initial test and
continued annual training to recertify). Training provides a forum for
discussion. Generators must recertify every year. Upside of this is
NH’s generators are well informed by the state of the requirements to
maintain compliance to better protect the public’s health and the
environment.  Downside of this effort is less revenue to the state's
site cleanup fund from penalty actions.

- In NH, SQGs (federal CESQGs) must self-certify they are in compliance
with the hazardous waste regulations once every 3 years.  

- NH mentioned that New Jersey has a “Welcome Wagon” program to
inform businesses of their regulatory responsibilities.  NH doesn’t
have a similar program.

- In NH, generators are occasionally told about notification
responsibilities through coordination with other NHDES outreach programs
(for example, Auto body NESHAP outreach). NHDES also works with their
Department of Resources and Economic Development who contact new
businesses about regulatory compliance requirements. 

 

- Region 1 comment: Require TSDFs to better focus on proper waste
determinations (?) Comment from Steven.  

Appendix A

List of Attendees

VT Meeting on September 27, 2010

John Daly

Judy Mirro

Steve Simoes

Lynn Metcalf

Marc Roy

Karen Knaebel

Linda Joyal

Sharon Leitch, EPA Region 1

Stuart Gray, EPA Region 1

Teena Wooten- EPA HQ

Jim O’Leary – EPA HQ

NH Meeting on September 28, 2010

Pamela Hoyt-Denison

John Duclos

Linda Birmingham

Tammy Calligandes

Tod Leedberg

Christie Peshka

Tim Prospert

Susan Francesco

Wendy Bonner

Bob Bishop

Stephen Yee, EPA Region 1

Stuart Gray, EPA Region 1

Sue Nachmann, EPA Region 1

Teena Wooten – EPA HQ

Jim O’Leary – EPA HQ

Tracy Dyke Redmond, IEC

