**MEMORANDUM**

To: Charlotte Mooney , Chief Recycling and Generator Branch From: Jim O’L eary Teena Wooten **Subject: Summary of Waste Determination**  **Meetings with VT**  **and NH**  **State Officials on September 27**  **- 28, 2010**  The following represents a summary o f the discussions we had in meetings with Vermont (VT) and N ew H ampshire (NH) state officials on September 27
- 28, 2010, respectivel y, on wh y generators often have a difficult time making a hazardous waste determination. Region 1 staff also attended both me etings
. 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 dial ogue, but also address any concerns we might have in complying with In formation Collection Request (ICR) requirements. In both meetings, we asked participants to “set the stage” for us b y describing how their hazardous waste determination regulations di ffered 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 was te 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 wh ether 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 “cond itional 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 determination s . 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 b y category. Both states have few large quantity generators. **NH VT**  CESQGs 2,054 2500SQGs 217 2 5 5

LQGs 112 5 0 Total 2,383 2,805 V T’s generator requi rements for CESQGs (CEGs in VT) include a requirement to prevent releases and ensure delivery to a variet y 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 b y the owner/operator of the CEG site and that meets either the SQG or LQG standards, permitted HHW/CEG collection events coordinated b y VT’s solid waste management districts) , making them more stringent than the federal program . VT is organ ized into 16 solid waste management districts and each district holds two household hazardous waste collection event s 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 conversel y, lack of awareness and knowledge, were the two most important factors influencing hazardous waste determinations. For awareness, a significant number of violations occur be cause generators fail to look at all the waste they generate. They focus on waste generated from their manufacturing operations, but not on wastes generated b y operations that support manufacturing operations (e.g., facility maintenance) . Two prime example s 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 mention ed that these peripheral wastes were a big problem in their state. Anothe r reason wh y generator s may have a difficult time making proper hazardous waste determinations is the c omplexity of some manufacturing operations and the corresponding federal regulations
. This was true for certain ty pes of manufacturing involving small bu sinesses, 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 s mall businesses face challen ges from a lack of resources and expertise
. Both states spoke about their generators often rel ying on transport ers 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 , particularl y 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 critical ly low levels with little beyond the required minimum inspections for LQGs (and TSDs in VT) occurring; that is , 20 percent each ye ar or once every five ye ars. Limited resources impact the states’ ability

to in spect 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 correctl y 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. The y 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 .” Probabl y the biggest response and strongest factor. All participant s 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 was te determinations. Specific resources devoted to environmental compliance
. L arge firms usually have dedicated environmental compliance officers trained to address compliance with environmental rules. Conversel y, smaller firms with workers who wear multipl e 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 Impl ementation**  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 (alway s answered by staff) , on - si te 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 include s 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
- report ed 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 evalu ating waste s generated. Not there yet. Inspectors need more hands
- on experience in evaluating p rocesses.

- T he ability

to provide more technical support , particularl y “face time” to generators.

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

- P lain English regulations.

- Field citations (e quivalent to federal UST program ) . Inspectors issue citation with penalty when violations found
. Generators can pay penalt y move into compliance, and enforcement action ends. (Idea raised b y S tuart 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 . R equir e the presence of Appendix VII constituents in the waste for it to be a listed hazardous waste . D evelop hazardous waste listing review documents to explain to generators the scope and application of individual lis tings . D evelop 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 . Us ing 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 differe nt 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 , g enerators are occasionall y told about notification responsibilities through coordination with oth er NHDES outreach programs ( for example , Auto body NESHAP outreach). NHDES also works with their D epartment of Resources and Economic Development who contact new businesses about regulatory compliance requirements.

- Region 1 comment: Require TSDFs to b etter 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 Gr ay , EPA Region 1 Teena Wooten
- EPA HQ Jim O’L eary
– EPA HQ NH Meeting on September 28, 2010 Pamela Ho yt - 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’L eary
– EPA HQ Tracy Dy ke Redmond, IEC