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 nonhazardous 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