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March 31, 2015
What’s involved if you change your hazardous waste generator status?
By Elizabeth M Dickinson, JD, Senior Legal Editor - EHS

What happened?

Stuff happens. One day you’re a conditionally exempt small quantity generator (CESQG) of hazardous waste, and then the next day you realize you’re a small quantity generator (SQG) of hazardous waste. Only it’s not one day that’s the issue; it’s one month, as hazardous waste generator status is determined by the volumes of hazardous waste generated monthly.

As you know, you must add up the weight of all the hazardous waste your facility generates in a month with the total weight determining your generator class. The federal rule at 40 CFR 261.5 is the RCRA regulation that helps you to determine whether you’re a CESQG, an SQG, or a large quantity generator (LQG) of hazardous waste. It specifies which wastes are counted and which are excluded from being counted.

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It’s usually the case that your generation of hazardous waste is predictable on a month-to-month basis, and most of the time you can control just how much is generated. But what happens when you perform a lab cleanout, an off-specification product inventory cleanout, a tank cleaning; remove underground storage tanks, or have a spill of hazardous waste or product that becomes hazardous waste when spilled? Those are just some examples of the types of incidents that can put you over the limit of hazardous waste for your generator class in a given month. Generate 100 kilogram (kg) of hazardous waste a month and a CESQG becomes an SQG. The SQG generating 1,000 kg or more of hazardous waste in a month becomes an LQG.

What are the consequences?

You know you have a new generator status, but since it’s only for that one month, does it really matter? The answer is yes.  The EPA requires that once a generator is in a different generator category, the generator is responsible for complying with all applicable requirements of the new generator category for all waste generated during that calendar month.

For example, if an SQG produces 300 kg of hazardous waste in May, that waste can be managed in accordance with the SQG regulations; if the same generator produces 1,500 kg of hazardous waste in June, those additional 501 kg must be managed in accordance with the LQG regulations. Regarding this example, the EPA would say that the generator must comply with all applicable LQG requirements for the additional hazardous wastes generated in June for as long as that waste remains on-site. Even if the generator reverts back to SQG status in July, the generator must continue to manage the hazardous waste generated during the month it became an LQG according to all applicable LQG requirements.

LQG requirements that would be new to an SQG include keeping the waste on-site for no more than 90 days (as opposed to the SQG time limit of 180 days), submitting a biennial report, conducting formal personnel training, and having a written contingency plan. What LQG requirements the situation involves, in practice, will be determined by the generator’s state environmental regulatory agency. While it is unlikely in the given example that the state agency would require LQG personnel training and a contingency plan for one month of being an LQG, it is certain that they would require compliance with the 90-day time limitation and very likely that they would require the filing of a biennial and, if applicable, the state’s annual report.

Do you need to formally change your generator status?

Possibly. The EPA Form 8700-12 that you used to notify the EPA/your state environmental regulatory agency of your hazardous waste activities (and the one through which you were given an EPA identification number for your site) is also the form that you must resubmit for a change in generator status. The form’s instructions say: “You must use this form to submit a subsequent notification if your site already has an EPA Identification Number and you wish to change information (e.g., generator status, new site, contact person, new owner, new mailing address, new regulated waste activity, etc.).”

Instructions, however, do not carry the weight of regulations and the RCRA hazardous waste regulations do not specify circumstances requiring a resubmission. Conversations with representatives of several state environmental regulatory agencies suggest that some states would not require an SQG or LQG to resubmit the form for every episodic generation occurrence as, practically speaking, you’d have to resubmit the form the next month to indicate your return to your normal generator status.

Regulators agree, however, that if the new status is ongoing, the Form 8700-12 would have to be revised. And the general consensus is that any CESQG that has become an SQG, and has not already submitted a Form 8700-12 (as most states don’t require CESQGs to file), must submit Form 8700-12 as they will need an EPA ID number, among other reasons, in order to have a transporter remove the hazardous waste from their site.

What’s next?

Review EPA Form 8700-12 and contact your state environmental regulatory agency to apprise them of your situation. If you need to submit Form 8700-12, find out where and how to submit the form. In New York, for example, the New York State Department of Environmental Conservation requires that the form be filed with EPA’s Region 2 Office, which prohibits filing by fax or electronically as the agency requires a “wet” signature.

For the future, think about whether it’s possible to control any unusual circumstances that could cause you to exceed your monthly generation limitation. For example, an SQG may avoid being an LQG one month by scheduling its annual plant maintenance in a week that is in two different months. In 2015, for example, the last week in September begins on Monday, the 28th; Tuesday and Wednesday are also in September, but Thursday and Friday are the first two days of October. If the SQG schedules its plant maintenance for the week beginning on September 28, some of the hazardous wastes generated that week would be counted in September, with the rest counted in October.

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